W339 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1460

FEDERAL COURT OF AUSTRALIA

W339 v Minister for Immigration & Multicultural Affairs [2001] FCA 1460

MIGRATION - refugee - Refugee Review Tribunal - applicant claimed to be national of Afghanistan - claimed religious persecution by Taliban - Refugee Review Tribunal found him to come from Pakistan - Pakistani passport - language analysis indicating Pakistani origin - no ground for review of Tribunal decision - application dismissed

W339 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W339 OF 2001

FRENCH J
15 OCTOBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W339 OF 2001

BETWEEN:	W339 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	15 OCTOBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant to 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W339 OF 2001

BETWEEN:	W339 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	15 OCTOBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 17 December 2000 without any visa.  He was first interviewed on 22 December.  In that interview he was asked why he left his country of nationality, which was Afghanistan.  He told the officer it was because of the Taliban.  He said they interfered with his sect and with his prayers and harassed him.  He said that he was prevented from praying.  He was asked why he did not wish to return to Afghanistan.  He said that the Taliban would kill him because he had escaped from Afghanistan.

2. On 1 January 2001 he lodged an application for a protection visa.  There was a statement prepared in support of that application on his behalf.  In that statement he said he was born in Ghazni in Afghanistan.  He said he has two brothers and one sister.  One brother lives in Pakistan.  He said he lives in the village of Qash Mashong with his wife and four children.  His village only has twenty houses.  He owned some land there and grew wheat and barley and other crops.  He had ten sheep.

3. He said the Taliban came to his region more than two years ago.  They collected weapons from the people.  They oppressed the people and took the young men.  They asked the villagers to pray with closed hands.  They said that Shi'a Muslims were heathen.  They beat people.  He said his nephews were beaten and have been missing for six or seven months.  They used to fire guns and be happy at their weddings but were not allowed to do this any more or use their music.  The women were not allowed to dance.  The men had to grow beards and cut their hair.  He said that two years ago the Taliban came to his house looking for weapons but could not find any.  The problem he had was their religious persecution.  He and others were forced to pray with closed hands.  The Taliban wanted them to give up their Shi'a beliefs.  They wanted them to accept the beliefs and practices of the Sunni Wahabi.  He refused to become Sunni.  His Shi'a religion is very important to him.  He said there is a big difference between the religions.  He said he wanted to find a place where he could practise his religion freely.

4. The applicant said he realised he had made a big sacrifice by leaving his family but his religion was extremely important to him.  His brother was caring for his wife and children.  His brother arranged for him to be smuggled out of Afghanistan.  He did not know how much his brother had paid.  He travelled by jeep to Kandahar, then to Spin Buldak and then to Quetta.  He did not know how they got through the checkpoints.  They stayed two weeks in Quetta, then caught a train to Lahore.  He said they stayed in Lahore for five days, then flew to Singapore, then to Indonesia.  He was in Indonesia for ten days before travelling by boat to Australia.  Asked what he feared might happen if forced to return to his home country, he said the Taliban would kill him.  He would be killed because he had escaped from them and because he is Hazara Shi'a.  On 22 January, the applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs.  On 15 February, a language analysis was carried out by a Swedish agency.  A report of that analysis indicated that he speaks Dari with an accent which comes from Pakistan.  That report said his choice of words indicates that Dari is not his mother tongue.  His Hazaragi words do not belong to Afghanistan.  The report suggested that his choice of words, the way he makes his sentences and so on indicate that Dari is not his mother tongue.  The report said he probably has his language background in Pakistan and not in Afghanistan.

5. The applicant's migration agent provided submissions to the Department by letter dated 9 April.  That letter commented on the language analysis.  It also made reference to a passport which he had been shown.  This was a passport which had been issued by Pakistani authorities in Quetta and seized by authorities in Indonesia when a number of illegal immigrants were arrested.  He was shown a copy of the passport.  It was in his name and appeared to have his photograph on it. His migration agent's submission to the Department of 9 April made reference to this.  In that submission it was said he had never been arrested in Indonesia.  He denied that the photograph was his.  Although it was said in the submission the photograph was fairly old, there was no confirmed evidence that it was a photograph of the applicant.

6. On 23 April 2001, a delegate of the Minister decided to refuse the applicant's application for a protection visa.  On 27 April, the applicant made an application to the Refugee Review Tribunal for review of the delegate's decision.  On 10 May, he authorised the Tribunal to make some inquiries with Pakistani authorities about the passport.  The passport had been in the possession of somebody arrested by police in Indonesia in November 2000.  On 18 May, the Tribunal wrote to the applicant inviting him to comment on the passport question and on the language analysis.  In their letter to him, the Tribunal said this information indicated that he might be a national of Pakistan or have lived in Pakistan for a long time. 

7. On 13 June, the applicant's migration agent wrote to the Tribunal indicating that no written submission would be prepared.  The migration agent said:

   "I will present a small oral submission at the conclusion or if preferred a written one to follow within the week." 

8. The Tribunal had its hearing on 13 June.  On 12 July, the Tribunal received a letter from the High Commission for Pakistan.  That letter indicated that the Director of Immigration and Passports in Quetta had confirmed that the passport in question had been issued to the applicant.  It was said the applicant was a Pakistan national resident and that the photograph appearing on the photocopy of the passport was confirmed to be that of the applicant.  The migration agent wrote to the Tribunal on 23 July. She said that the applicant insisted that the passport was not his.  He insisted that he had only spent fifteen days in Pakistan in Quetta in a house arranged by the smuggler.  He said the address details and information about him being a national resident was all made up by the smuggler.  This was in an effort to produce an authentic passport.  There is also a handwritten letter signed by the applicant to the Tribunal.  He again denied that the picture was his.

9. The Tribunal gave its decision on 25 July.  It decided that a protection visa should not be granted to the applicant.  It referred to his various claims about persecution in Afghanistan.  It also referred to the analysis of his language and to the passport question.  It also referred to evidence which the applicant gave at the hearing before the Tribunal.  One of the matters to which it referred in that evidence was that the applicant had worn dentures for two to four years.  The Tribunal had put to him that its inquiries showed that those dental services were not available in Afghanistan.  He told the Tribunal the man who made them had worked with Americans in Kabul.

10. There are other factual matters relevant to his evidence which were addressed in the Tribunal's reasons which it is not necessary to summarise now.  In its findings and reasons the Tribunal referred first to the Pakistani passport.  It found that the photograph in the passport was of the applicant.  It referred to his claim that the passport was a false one provided by the smuggler for him to travel to Australia.  However, according to his own evidence about his travel time and itinerary, he would have been in transit from Afghanistan at the time the police seized the passport in Indonesia.  It was illogical that his false passport provided by a smuggler would be in Indonesia when he needed it to travel.

11. The Tribunal did not accept that if the smuggler put the photograph in the passport, the Quetta authorities would have a copy of the photograph on file there.  The Tribunal accepted the advice from the Pakistani authorities that the passport was genuine.  The Tribunal did not accept the applicant's explanation.  It found that he was in possession of a valid Pakistani passport and based on that it found that he was born in Pakistan and is a national of Pakistan.  It found that he had fabricated his story about coming from Afghanistan.  There was nothing to suggest that he could not return to Pakistan.  The Tribunal's view was confirmed by the language analysis.  By itself that would not be evidence that he came from Pakistan, but it strengthened the Tribunal's view that he did.

12. As can be seen from that summary of the proceedings before the Tribunal, the Tribunal disbelieved the applicant.  Its disbelief is based on the evidence which was before it.  There is no indication that the Tribunal has made any mistake of law or procedure in the way it has dealt with this matter.  The application will be dismissed. The applicant is to pay the

    
    
    

    costs of the respondent.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:                 October 2001

The Applicant appeared on his own behalf.
Counsel for the Respondent:	Mr MT Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 2001
Date of Judgment:	15 October 2001