Raza v Minister for Immigration and Multicultural Affairs

[2001] FCA 1181

FEDERAL COURT OF AUSTRALIA

Raza v Minister for Immigration & Multicultural Affairs [2001] FCA 1181

Migration Act 1958 (Cth)

Ngo Quang Thuat v Minister for Immigration and Multicultural Affairs [1998] FCA 1489 referred to
Abebe v The Commonwealth (1999) 197 CLR 510 considered
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 considered
Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 1183 considered

GHULAM RAZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
S82 OF 2001

MANSFIELD J
ADELAIDE
29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 82 OF 2001

BETWEEN:	GHULAM RAZA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application to be taxed.

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 82 OF 2001

BETWEEN:	GHULAM RAZA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	29 AUGUST 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 24 May 2001.  The Tribunal affirmed the decision of a delegate of the respondent of 16 March 2001 to refuse to grant to the applicant a Protection (Class XA) Visa for which the applicant applied on 22 January 2001 soon after he arrived in Australia. 

2. To be eligible to be granted that visa, the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Migration Act 1958 (Cth) (“the Act”): see s 36(2) of the Act. In practical terms, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that the applicant is a “refugee” as defined by Art 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; ...”

3. The applicant claims to be a citizen of Afghanistan.  Upon his arrival in Australia, he provided information to an Immigration Inspector and subsequently, was further interviewed by an officer of the respondent.  The nature of his claims was further expressed in his application for the visa, in written submissions made on his behalf in support of that application, in the written submissions in support of the application for review by the Tribunal, and in oral evidence to the Tribunal.  Essentially, he claimed that he would be persecuted in Afghanistan because he is a Shi’a Muslim of Hazara ethnicity, and that the ruling regime in Afghanistan, the Taliban, would persecute him by reason of his ethnicity and his religion. 

4. The Tribunal identified the questions before it in the following terms :

   “The applicant claims that he is an Afghan national and that he will be persecuted if he returns to Afghanistan because he is Hazara and Shi’a.  Whether or not the applicant is an Afghan national as he claims is central to my decision in this case.  If I cannot be satisfied that the applicant is an Afghan national, I cannot be satisfied that he has a well-founded fear of persecution in Afghanistan.”

   The Tribunal accepted that the applicant is Hazara and that he is Shi’a.  It did not regard those findings as determinative of whether the applicant is a national of Afghanistan.  The independent country information available to the Tribunal, to which it refers, indicated that that observation had a proper foundation.

5. The Tribunal then addressed the question of whether the applicant is a national of Afghanistan.  The applicant had claimed that he had been born in Baki, Daya Chupan, Zabol Province in Afghanistan in 1975.  He claimed to have fled from Afghanistan through Pakistan and Indonesia because of Taliban oppression of Hazaras, having lived all his life in Daya Chopin, where he worked on the family farm from 1983 until 1987 and then as a contract farmer.  The Tribunal referred at length to the evidence of the applicant.  It concluded :

   “In my view, the applicant’s evidence concerning matters to do with Afghanistan was extremely 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 Afghanistan.  Overall, I consider the applicant to be an unsatisfactory witness and I do not find his evidence credible.”

   The Tribunal then gave examples of what it regarded as demonstrating the unsatisfactory nature of the applicant’s evidence.  It then said that the overall unsatisfactory nature of his evidence led it to the conclusion that the applicant had fabricated his claim to be from Afghanistan in an attempt to create for himself the profile of a refugee.  The Tribunal was not satisfied that the applicant had ever lived in the Zabol Province as he claimed, and it was not satisfied that he had ever lived in Afghanistan.  There was evidence before the Tribunal of a large population of Hazaras resident in Pakistan, and having Pakistan nationality. 

6. It followed that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason by virtue of his claims.  The Tribunal’s reasons for concluding that it was not satisfied that the applicant was an Afghan national included that the applicant was unable to name any places in the vicinity of the district from which he claimed to originate;  he appeared to have no geographical knowledge of the area around his province;  his explanation of how he left Afghanistan included a list of locations in what appeared to the Tribunal to be a rehearsed fashion, but the route recited by the applicant appeared to be illogical;  the applicant had no familiarity with the Persian calendar which independent evidence established was in use in Afghanistan;  he was unable to provide information regarding contents of the Afghan identity document, the taskera;  his evidence was inconsistent with independent evidence which suggested that the area which the applicant claimed to have left was severely drought affected;  the applicant gave conflicting events regarding the activities of the Taliban in his alleged locality;  and the applicant gave “extremely vague” evidence regarding the arrangements made for his departure.

7. The Court is not entitled to review decisions of the Tribunal on the merits. Its powers extend only to reviewing decisions of the Tribunal upon one or more of the grounds specified in s 476(1) of the Act. In cases such as the present, where the applicant for judicial review is unable to speak or write English, and is not in receipt of any legal assistance, it is unfortunately not uncommon that the nature and extent of the Court’s power is not really understood. It is also a common consequence of those circumstances that the application for judicial review does not identify any particular provision of s 476(1) of the Act as providing a ground of review, but simply asserts as the “grounds of review” the claims made before the Tribunal. This is one such case. Nor did the applicant, in his oral contentions, identify any particular matter of complaint which it was possible to relate to any subclause of s 476(1) of the Act.

8. The applicant, in his submissions to the Court, including a written submission dated 30 July 2001 made with the assistance of a friend, in addition to repeating the claims made to the Tribunal, added three points which seemed to me to endeavour to confront and explain the Tribunal’s conclusion as to his credit.  He claimed that he was confused when speaking to the Tribunal, and that he felt under pressure at the Tribunal hearing, so that he had trouble recollecting events and locations.  Secondly, he claimed that the Tribunal had not invited him to add additional information in support of his claims, and that he would then have explained that he had a “tattoo” or inoculation scar which is peculiar to Afghanis.  Finally, he claimed that the Tribunal had not had regard to the manner of his speaking, and that his accent and vocabulary indicated that he was from Afghanistan.

9. In my judgment, those matters do not demonstrate reviewable error on the part of the Tribunal. The contentions do not support any conclusion under s 476(1)(g) as explained by s 476(4) that there was no evidence or other material to justify the making of the decision. An adverse conclusion as to credit, if based on the existence of a particular fact that did not exist, may mean that the decision itself was based upon the existence of a particular fact which did not exist (for example Ngo Quang Thuat v Minister for Immigration and Multicultural Affairs [1998] FCA 1489). The highest that the applicant could put his case was that the assessment as to his credit was wrong because, despite the facts on which the Tribunal based its conclusion, another and more sympathetic view of the perceived evidentiary shortcomings could have been taken. There is nothing to suggest that the Tribunal’s decision was induced or affected by bias: s 476(1)(f).

10. Nor, in my view, is the Tribunal’s decision shown to have involved any error of law.  In Abebe v The Commonwealth (1999) 197 CLR 510 at 577 - 578, Gummow and Hayne JJ said :

    “... the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.”

    In this matter, the approach of the Tribunal to assessing whether the applicant was from the area of Afghanistan as he claimed, and feared persecution from Taliban in that area by reason of his ethnicity and his religion, was open to it on the material.  It was based on rational grounds, and was arrived at after consideration of matters which were logically probative on the issue of the applicant’s credibility. 

11. The applicant’s language had been analysed by an expert linguist.  The Tribunal noted that that linguistic analysis :

    “... indicates that the applicant’s language is consistent with him originating from central Afghanistan.  However, I do not consider the linguistic analysis to be conclusive of the applicant’s place of origin.  Furthermore, I do not consider that this report outweighs all of the other significant problems with the applicant’s evidence.  In the circumstances, I cannot accept this report as constituting evidence that the applicant is a national of Afghanistan. ...”

    The expression of the Tribunal that it did not accept that report as constituting evidence that the applicant is a national of Afghanistan is an unhappy one.  That report clearly is evidence that the applicant is a national of Afghanistan.  In context, however, I consider that the Tribunal, in the final sentence of the quoted passage, is saying no more than that it has weighed the evidence provided by the linguistic analysis report together with the other evidence to which it has referred in its reasons in deciding that it is not satisfied that the applicant is a national of Afghanistan.  It is not a case of attributing to the linguistic analysis no weight, or of attributing to it a view which is different from that which the linguist has expressed, or of simply choosing to ignore that material.  The immediately preceding quoted sentence shows, in my view, that the Tribunal was properly weighing that evidence in reaching its decision.  The applicant’s linguistic patterns, or his professed ability to speak Afghani with the local accent and vocabulary were taken into account by the Tribunal.  It is not shown to have erred in law in not attributing to that report as much weight as the applicant now urges it should have carried, or in reaching a conclusion of fact contrary to the evidence of the report.

12. I also see no basis for concluding that the Tribunal erred in the conduct of the review, including the hearing, so as to enliven any of the grounds of review under s 476(1)(a) - (d). The Tribunal is not shown to have erred by having regard to the way the applicant presented to it during the hearing, even if it be accepted that the applicant now explains his presentation as based upon confusion and pressure at the time. No suggestion has been made that the Tribunal conducted the review hearing in a way which might have subverted the conduct of the hearing. That is, there is nothing to suggest that the Tribunal did not comply with s 425(1) of the Act by inviting the applicant to appear to give evidence and present arguments to it, even assuming that obligation amounts to an obligation upon the Tribunal to give to the applicant the opportunity to be heard in: cp Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183. There is no direct evidence before the Court as to how the Tribunal conducted the hearing. However, even assuming that the applicant did not formally get asked if there was anything else he wished to say in respect of his application, the applicant had the opportunity to express his claims in his application for the visa at interview on 10 January 2001, in his statement made on 22 January 2001, in his application for review to the Tribunal, in his written submissions to the Tribunal made on 11 May 2001 (the last three documents having been submitted through his solicitors) and at the hearing on 16 May 2001. At the hearing, the Tribunal, according to its reasons for decision, explored with the applicant a number of matters of concern and at the end of the hearing went through the problems with his credibility in detail, following which the applicant made further assertions in relation to his claim.

13. In my judgment, the applicant has not demonstrated reviewable error on the part of the Tribunal.  The application for review should be dismissed.  I see no reason why the normal order as to costs should not follow.  I accordingly order the applicant to pay to the respondent costs of the application to be taxed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             29 August 2001

The applicant appeared in person.
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 August 2001
Date of Judgment:	29 August 2001