WACR v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 507

FEDERAL COURT OF AUSTRALIA

WACR v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 507

MIGRATION -  judicial review - refugee - Refugee Review Tribunal - challenge to findings of fact and credibility - no reviewable error disclosed - use of language analysis - reservation expressed - application dismissed.

Migration Act 1958 (Cth)

WACR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W562 OF 2001

FRENCH J
18 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W562 OF 2001

BETWEEN:	WACR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	18 APRIL 2002
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	W562 OF 2001

BETWEEN:	WACR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	18 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 25 March 2001 without lawful authority.  He claimed to have come from Afghanistan.  In an interview which he had with an officer of the Department soon after he arrived he said his life had been in danger in Afghanistan.  He said he had escaped a beating from the Taliban.  Someone had told them that he and his family were Shia Muslims and that they had guns.  He also said that he got money and left his village for Spin Boldak.  He went from Spin Boldak to Pakistan.  He said he was taken there by someone.  Asked if he had any reasons for not wishing to return to Afghanistan he said his life was in danger.  He said the Taliban would kill him because they were enemies of the Shia people.

2. The applicant lodged an application for a protection visa on 11 April 2001.  With that application there was a statement explaining why he claimed to be entitled to a protection visa.  He said he is a single man of Hazara background and Shia religion.  His mother and his older brother remain in Afghanistan.  His brother is married with two children in Sangsolakh village.  The Taliban took control of his village about two and a half years previously.  At first they did not interfere with the villagers but after seven or eight months they began demanding their weapons.  The applicant said that he heard the Taliban were taking young single men to fight on the front line of their battle field.  If a young Hazara refused to fight, he would be shot in the back.  He was working every day on a farm.  He was told he shouldn’t say anything to anyone.  He didn’t know very many people in the village but he knew the farmer’s family very well.  He worked there as a servant.  He knew his sister-in-law’s family and he knew the Mullah.

3. During the last year of his stay in Afghanistan he did not work on the farm but stayed in hiding at home.  If the Taliban came to the village he would be told by a friend through his brother and he would run to the stable and hide in an empty sack.  He was never taken by the Taliban. Nor was his brother because the Taliban were looking for young single men.  However, his brother’s brother-in-law was taken by the Taliban and imprisoned.  Being Shia Muslims, he and his family were unable to practise their religion freely.  He decided he couldn’t continue to live in hiding all the time and in constant fear of arrest by the Taliban.  He believed it was just a matter of time before he was caught and sent to fight for the Taliban.  His brother decided he should leave Afghanistan.   He walked through the mountains to a place called Spin Boldak.  There he found a truck driver who agreed to take him to the border for money.  He crossed the border away from the border gate.  He met up with the same lorry driver on the other side who took him to Quetta.  Ultimately he made his way to Pakistan and finally to Australia.  His trip from Pakistan was organised by a people smuggler.  He said he had to wait in Quetta for seventeen days for money to pay the smuggler.  He stayed in Pakistan for about eight weeks.  He tried to fly to Indonesia through Singapore but was refused entry at Singapore.  He and the smuggler had to return to Karachi.  This happened three times until ultimately he got to Indonesia where he stayed for a couple of weeks.

4. The applicant said that he could not return to Afghanistan because he left illegally and his life was in danger.  The Hazara people are a persecuted minority in Afghanistan and their religion is not accepted.  He said he would not survive if he were forcibly returned. 

5. On 23 August 2001, the applicant was refused a protection visa by a delegate of the Minister.  On 3 September 2001, he applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision.  On 12 November 2001, the Tribunal affirmed the decision not to grant him a protection visa.  In its findings and reasons the Tribunal essentially disbelieved the applicant’s claims about his origins in Afghanistan.  His description of the location of his village was not correct in terms of its distance from another centre.  Although he had said the village has no river near it, it was shown on the map as being within a few kilometres of the Arghandab River.  His evidence about his home and his family circumstances had changed between the time he was interviewed by the delegate and the hearing before the Tribunal.  At first he said his home faced north, but later his evidence indicated it faced south.  The Tribunal accepted that he was illiterate, but that meant he lacked a formal education and could not read.  It did not mean he would be ignorant of such things as directions.  When he was questioned about directions, the questions were put in terms of the direction in which the sun rises.

6. The applicant initially said he obtained water for the household at which he worked six or seven times a day and that was from a canal about half an hour away.  At the hearing he said it was only ten minutes away and that he went there three times a day.  The Tribunal did not accept his explanation that he was referring to two different households.  There was a contradiction about how he was paid for his work.  On the basis of his contradictions the Tribunal was not satisfied that he was a resident of Sangsolakh.  Also, the Tribunal found contradictions arising out of his story about the amount of time it took him to journey from Afghanistan to Australia.  The fundamental contradiction was between his detailed account of his journey out of Afghanistan and the date when he said he originally left.  This caused the Tribunal to have serious doubts that he was ever in Afghanistan.  The Tribunal said there were further contradictions in his written replies after the hearing about this.

7. The Tribunal considered evidence of a language analysis carried out on the applicant’s speech patterns.  The Tribunal said it was aware, from its consideration of other cases, of the qualifications of the particular analyst consulted by the Department.  The analyst said that the applicant’s language or dialect came from the Quetta region of Pakistan, and  designated his own conclusion as one made with “considerable certainty”.  The Tribunal said the use of the words “with considerable certainty” indicated the analyst’s conclusion was the strongest possible conclusion. Independent evidence indicated that the Pakistani accent of Hazaragi was greatly influenced by Urdu and English.  It was very different from that of Hazaras in Afghanistan.  Given the Tribunal’s doubts about the applicant’s claims and the analyst’s strong conclusion that his origins were in Pakistan, the Tribunal was not satisfied that he was a citizen of Afghanistan.  Nor was it satisfied that he and his family had had any interactions with the Taliban. 

8. The applicant filed an application for an order of review of the Tribunal’s decision on 7 December 2001.  The application did not show any grounds upon which the Tribunal’s decision could be set aside, either under the Migration Act 1958 (Cth) as it was before 2 October 2001, or the Migration Act as it is since that time.  Everything that the applicant has said to me today simply seeks to challenge the Tribunal’s findings about the facts of his case.  The facts of the case as found by the Tribunal are not open to challenge in this Court.  I say that although I have considerable reservations about the Tribunal’s use of the so-called language analysis.  However, the law presently provides that the decision of the Tribunal is final and conclusive.  It also provides that it must not be challenged, appealed against, reviewed, quashed or called in question in any Court.  Although there are circumstances in which a decision may be overturned, even in the face of provisions like that, this case is not one of them.  The application is dismissed.  The applicant is to pay the respondent’s costs of the application.

9. These reasons were given orally at the conclusion of the hearing and in the hearing of the applicant.  They were translated to the applicant by an interpreter then present.  They have been corrected for style and grammar.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated:              April 2002

WACR appeared in person via video link.
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2002
Date of Judgment:	18 April 2002