Syed Ibrahim Hussaini v Minister for Immigration and Multicultural Affairs

[2001] FCA 1211

FEDERAL COURT OF AUSTRALIA

Syed Ibrahim Hussaini v Minister for Immigration & Multicultural Affairs

[2001] FCA 1211

Migration Act 1958 (Cth)

SYED IBRAHIM HUSSAINI v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
S 83 OF 2001

MANSFIELD J
ADELAIDE
29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S83 OF 2001

BETWEEN:	SYED IBRAHIM HUSSAINI 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	S83 OF 2001

BETWEEN:	SYED IBRAHIM HUSSAINI 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”) made on 6 June 2001.  The Tribunal affirmed a decision of a delegate of the respondent made on 30 March 2001 to refuse to grant to the applicant a Protection (Class XA) visa for which the applicant had applied on 24 January 2001, soon after his arrival in Australia. 

2. To be eligible to be granted the visa, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”), using those terms as defined in the Migration Act 1958 (Cth) (“the Act”): see s 36(2) of the Act. In practical terms, that meant that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a “refugee” as defined in 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;  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 both to officers of the respondent, and to the Tribunal, that he is a national of Afghanistan.  He said that he was a twenty-one year old Shi’ite Muslim of Hazara ethnicity.  He said that he was born, and had resided, in Almeto Chehel Dokhtaran, Jaghori in the Ghazni Province of Afghanistan.  That is a remote region in the mountains.  The applicant claimed that he had no formal education and was illiterate.  He had commenced working as an apprentice tailor for his uncle in 1993, and had been working for himself in his own home since 1995.  He said that he was married, and had two young children, and that his family continued to reside in Afghanistan.  His father and his mother, and his two brothers and four sisters also still live in Afghanistan.

4. The applicant claimed that he left Afghanistan to flee persecution by the Taliban.  He said that the Taliban had come into the Jaghori district about two years ago and had then started forcibly to conscript young men to fight, and to carry out mine clearing duties by walking in front of the Taliban at gunpoint.  The Taliban focus, he said, was on conscripting Hazaras and Shi’ite Muslims.  His uncle had been taken by the Taliban in early 2000 and had not been seen since.  The Taliban had been to his village seeking young men to forcibly conscript, but the applicant had fled to the mountains and had eluded them.  In addition, the Taliban restricted Shi’ite Muslims from practising their religion.  The applicant said that he feared returning to Afghanistan, because the Taliban would select him to be forcibly conscripted or would kill him.

5. The Tribunal, after reciting in some detail the applicant’s claims made to officers of the respondent and to the Tribunal, and referring to other information available to it, then turned to address its findings and reasons.  It had some reservations about whether the applicant was of Hazaran ethnicity, but it did not need finally to resolve that question.  In the light of the applicant’s inconsistent description of the areas surrounding his village, and his lack of knowledge about geographical features in the area, the Tribunal was not satisfied that the applicant was a resident of the village of Chehel Dokhtaran.  It also regarded as significant an inconsistency in the information the applicant had provided as to the timing of the alleged taking of his uncle by the Taliban.  It regarded his evidence as to the time at which he had left his village to flee to Pakistan also to be inconsistent in the course of his reporting of his story.  Those contradictions, together with his inability to give the date of the Hazara New Year Festival, to give with any accuracy a description of the area around his village, or to give certain details about the equipment which he would have used as a tailor, led the Tribunal to have doubts as to the genuineness of the applicant’s story at all. 

6. It also then had regard to the report of an expert linguist who had analysed the speech patterns of the applicant.  The linguistic analysis had led to the conclusion that the applicant’s dialect/language originated not from the region from which he claimed to have escaped, but from the Quetta region of Pakistan.  The linguist had reached that conclusion “with considerable certainty”.

7. The Tribunal concluded :

   “Given the Tribunal’s doubts about the applicant’s claims, and the analyst’s strong conclusion that the applicant’s origins are in Pakistan, not Afghanistan, the Tribunal is not satisfied that the applicant is a citizen of Afghanistan.  It follows that the Tribunal cannot be satisfied that the applicant has a well-founded fear of persecution in that country.  As he has made no claims about persecution in any other country, the Tribunal is not satisfied that he has a well-founded fear of persecution for a Convention reason.”

8. The applicant, in his application for review of the Tribunal’s decision, did not identify any ground of review referrable to s 476(1) of the Act. Rather, that document suggested that the applicant wished the Court to reconsider on the merits his claim to be a refugee. That is not the Court’s function. It is the Court’s function to determine whether the Tribunal, in the process by which and the means by which it reaches its conclusion, has erred in a way which renders that decision subject to review on one of the grounds specified in s 476(1) of the Act.

9. In his oral submissions to the Tribunal, the applicant also really did no more than seek to re-argue those matters which had been put on his behalf of the Tribunal, and to have the Court vary the findings of fact made by the Tribunal. He did not, in the course of those submissions, identify any matter which in my view could have given rise to a reviewable error under s 476(1) of the Act. Given the applicant’s circumstances, including his illiteracy, his inability to speak English and his obvious lack of any legal training, in considering his submissions I have separately considered the Tribunal’s reasons to determine whether those reasons disclose that the Tribunal fell into reviewable error. In my judgment, it did not do so.

10. The particular matters which the applicant referred to were no more than matters of fact.  He claimed that his language may have had, or may have been perceived to have had, Pakistani inflections because of contact with other Pakistanis or others who had moved through his area.  The Tribunal specifically had regard to that possibility in its reasons.  It noted that the applicant claimed that only Hazaras resided in his village and that it was a small remote mountain village.  It rejected the suggestion that the applicant’s speech patterns would have been affected in such a way as to reflect those speech patterns of Hazaras living in or near Quetta in Pakistan. 

11. The applicant also stressed the vehement persecutory behaviour of Taliban towards Hazaras and towards Shi’ite Muslims. He claimed that there was significant information to demonstrate that fact. He referred to the destruction of the Bamiyan Buddhas in central Afghanistan in March 2001. The Tribunal did not need to decide whether Taliban was engaging in conduct which could amount to persecution of Hazarans or Shi’ite Muslims in Afghanistan because, as noted above, the Tribunal was not satisfied that the applicant is in fact a citizen of Afghanistan at all. Its decision pursuant to s 65 of the Act to affirm the rejection of the visa was because it was not satisfied that the applicant was a national of Afghanistan at all.

12. The applicant further referred to his knowledge of the location around his village, and explained that during the hearing before the Tribunal he was somewhat forgetful and distracted because of the stress of the hearing.  However, even accepting that to have been the case, it does not demonstrate that the Tribunal was not entitled to observe the inconsistencies to which it referred in the applicant’s evidence, or to regard his evidence in some respects as vague where it expected him to be more precise, and to consider that such vagueness was a matter relevant to its assessment of his reliability as a witness. 

13. Finally, the applicant claimed that he was typically Hazaran in appearance.  It is not necessary to address that matter because, as noted above, the Tribunal did not decide to affirm the decision of the delegate of the respondent on that basis.

14. In my judgment, the Tribunal is not shown to have erred in any way reviewable under s 476(1) of the Act in this matter. It has correctly stated the law. It appears properly to have applied it. It has addressed each of the applicant’s claims, and to the extent necessary has formed views about them.

15. In my judgment, therefore, the application must be dismissed.  I see no reason why the normal rule as to costs should not apply.  I accordingly order that the applicant pay to the respondent costs of the application to be taxed.

I certify that the preceding fifteen (15) 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