Wahedi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1251

FEDERAL COURT OF AUSTRALIA

Wahedi v Minister for Immigration & Multicultural Affairs [2001] FCA 1251

ABDUL WAHEDI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 57 OF 2001

EMMETT J
3 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 57 OF 2001

BETWEEN:	ABDUL WAHEDI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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	W 57 OF 2001

BETWEEN:	ABDUL WAHEDI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	3 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of Afghanistan.  He arrived in Australia on 15 May 2000.  He subsequently lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”).  On 11 September 2000 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, refused to grant a protection visa.  On 13 September 2000 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision and on 31 January 2001, the Tribunal affirmed the decision.

2. On 28 February 2001, the applicant filed an application to this Court for an order for review of the Tribunal’s decision.  When the matter was called on for hearing today, the applicant appeared in person, without any legal representation.  However, he was assisted by a Dari interpreter. 

3. The grounds contained in the application to this Court do not disclose any ground of review within s 476(1) of the Migration Act 1958 (Cth). The ground stated is as follows:

   “The applicant respectfully submits that the decision of the Tribunal is wrong and unjust, in that it has jeopardised his chances of remaining alive and well, by forcing him into a position where … [h]e will be deported directly to Afghanistan, where his life will be put in grave danger.”

4. At one stage the applicant’s case was referred to Mr Craig Colvin of counsel to give advice pro bono publico.  While Mr Colvin subsequently withdrew, he made available to the Court a document entitled “Statement of Applicant’s Grievance”.  While that document does not disclose a ground under s 476, it does indicate the concerns of the applicant and I shall therefore deal with it.  In order to do so, however, it is necessary to say something about the Tribunal’s reasons for the conclusion that it reached. 

5. The Tribunal had before it the Department’s file, which included a record of interview of the applicant by an immigration inspector soon after the applicant's arrival at Sydney airport.  It also included the applicant’s protection visa application, written submissions in support of the visa application and a record of an interview of the applicant by an officer of the Department.  The Tribunal also had before it written submissions in support of the application for review and heard oral evidence from the applicant.

6. The applicant claimed that he left Afghanistan in February 2000, about two and a half months before arriving in Australia.  The applicant said that if he were returned to Afghanistan, then he will be killed or persecuted because of his ethnicity or religion.  He claimed that a couple of months before his arrival, his uncle had told him it would not be safe to live in Afghanistan and arranged for him to come to Australia with smugglers. He claimed that he left Afghanistan illegally by bribing people.  He said that he did not know from where he left or where he went on the way; he just followed the people smugglers.

7. The Tribunal observed that the applicant presented at Sydney airport without documentation.  In his application form he said that he had lived on a farm and that his parents had never acquired any birth certificates for him or his brother and that he did not know how to go about applying for identity documents himself.  He stated that he travelled with a false passport, which he said was red, and which he said is now with the smugglers.  He told the Tribunal that leaving the passport with them was one of the conditions for him to be taken to a safe country.

8. The Department’s file contains a note that a person associated with the Australian Afghan Association advised the Department in May 2000 that the applicant was a Pakistani Hazara and not Afghan.  The report indicates that that person had visited the detention centre at Villawood when another person involved in the Association had indicated a concern about the accents of some detainees claiming Afghan nationality.

9. In its findings and reasons, the Tribunal indicated that it was satisfied that the applicant had had sufficient opportunity to present his claims.  It recorded that there had been two interviews with officers of the Department; that the applicant has had the assistance of a migration adviser; that the applicant had given evidence at a Tribunal hearing and that communication in each of those had been assisted by a professional interpreter.  The Tribunal acknowledged that the applicant is in a foreign country and that he is able to communicate his claims only with the assistance of interpreters.  It also acknowledged that the process involved the applicant’s being faced with a succession of procedures that may have been very bewildering for him. 

10. While the applicant claimed to be a very uneducated person, the Tribunal was not certain that that was so, since he was able to give a clear account of respects of Afghanistan's recent political history at the hearing.  The Tribunal said that, having taken all of those things into account, it had concluded that there were several important aspects of the applicant’s claims that were not true.  The aspects concerned the applicant’s evidence about his treatment at the hands of the Taliban, about the fate of his brother and father and about the journey he took out of his country, which led him to Australia.

11. The Tribunal considered that the applicant’s evidence about his treatment by the Taliban varied.  He told the immigration officer who interviewed him at Sydney airport that the Taliban always harassed his family and would ask why they did not grow a beard.  He said that they hit members of his family, beat them and discriminated against them.  He said, in his application, that while a large number of young Hazara men were arrested when the Taliban took over his area, his father told him and his brother not to go outside the farm for fear of being arrested.  He said at the hearing before the Tribunal that he had spent two years in the house and could not go anywhere and that he had seen the Taliban only from a distance.

12. According to the Tribunal’s reasons, when the applicant was told that the Tribunal thought he had claimed that he was harassed because of his beard, he said he had met the Taliban with his father on the way to Sang-e-Masha to ask of his brother.  He said that was when he claimed that he was told that he was not a Muslim and that he should have a beard, and that he was beaten.  The Tribunal found the applicant’s evidence about his treatment by, and contact with, the Taliban unconvincing.  What he stated on arrival indicated considerably more adverse treatment than he later said had occurred.  The Tribunal was not satisfied that the applicant had given truthful evidence about the adverse treatment, if any, he did experience from the Taliban.  The Tribunal noted that at the hearing he made no claims of ever coming to the attention of the Taliban, either before or after the incident with his father. 

13. Mr Colvin’s note suggests that the Tribunal member appears to have misunderstood the nature of the evidence to which I have just referred concerning growing a beard.  Be that as it may, that does not constitute a ground of review. 

14. The Tribunal recorded that the applicant claimed that his brother was taken by the Taliban when he was working in a mill near the family’s farm just a few days after the Taliban took over.  He claimed that his brother was arrested with four of his friends.  However, the Tribunal considered that the applicant’s claim that his brother was taken away while working at the mill at a time when the applicant was in the mountains with the animals is inconsistent with his claim that he did not take animals to the mountains once the Taliban took control of the area.  The Tribunal accepted, however, that that inconsistency could be because of minor confusions over the order in which things happened. 

15. In his application, the applicant said that his father was distressed because of his son’s disappearance and looked for him everywhere.  He said that once, when the applicant and his father asked about his brother’s whereabouts, they were attacked by the Taliban.  The applicant told the Tribunal that that occurred when he and his father were on the way to Sang-e-Masha to ask about the applicant’s brother about a year after the applicant's brother had disappeared.  He said his father had told Taliban members, across whom they came on the way, that he was going to look for his son.  He was beaten almost to death and died about a month later.  The applicant said that this was about a year after his brother was taken.

16. The Tribunal asked the applicant whether he and his father had done anything else before setting off to Sang-e-Masha to ask the Taliban.  He said that his father had been searching and asking the old people in villages, but had not allowed the applicant to go for fear that he might be captured.  The Tribunal found it puzzling that the applicant was going with him on the day when his father intended to ask the Taliban directly about his missing son. 

17. This part of the Tribunal’s findings was also the subject of comment in Mr Colvin’s document.  In the course of the hearing before the Tribunal, there was a misunderstanding about English idiom in translating the words of the applicant.  The transcript of the hearing contains the following passage:

    “[TRIBUNAL]:          The reason I’m not satisfied that you were beaten by the Taliban as you have claimed, is because of what you said, like, did you ever come face to face with the Taliban and you said, ‘No’.  I’ll have a look at that, that’s very difficult.

    [INTERPRETER]:      All right I told you that I have been – I have come face to face with Talibans where they have beaten me and my father.

    [TRIBUNAL]:            Yes, you’ve told me but you also told me that you didn’t come face to face with the Taliban?

    [INTERPRETER]:      Yes, one thing that I would like to clarify that I ask him that question was to have you come face to face and eyes to eyes and he misunderstood it, he said, ‘No, I wasn’t, I did not come eyes to eyes, because they would never allow me to see into their eyes, once I’m in front of Taliban I must stay like, you know, head down’.

    [TRIBUNAL]:            Yes, but I mean he would have – somebody would have told him to stay with his head down.  Yes, I do have – so you – can I just ask him about – yes.  When you came face to face with the Taliban when you and your father went off looking for your brother, was that the first time you came face to face with them?  First time you met them up close?

    [INTERPRETER]:      Yes, it was the first time.

    [TRIBUNAL]:            Okay and can I just ask him, did the applicant say that he had to hang his head to you earlier?

    [INTERPRETER]:      Yes.

    [TRIBUNAL]:            Okay.

    [INTERPRETER]:      Yes, yes, he told me that he could not look into their eyes because they were – they were, it’s shame in Afghanistan actually, you see.

    [TRIBUNAL]:            Okay, you don’t do it.

    [INTERPRETER]:      It’s unrespectful.

    [TRIBUNAL]:            Right.

    [INTERPRETER]:      Yes, it’s very unrespectful, once a person with a power in their hands, you come face to face, you must stay like, you know, hang your head down and you don’t have to stare at them, get them very, very angry and that is all that he’s tried to say.

    [TRIBUNAL]:            Your interpreter has just explained to me about how it’s not so good to look into people’s eyes.  But I asked you very specifically about had you seen the Taliban?  You said that you’d seen them twice.  You said that once was when you went up onto the roof and you saw them from a distance really when they came to your village?

    [INTERPRETER]:      Yes.

    [TRIBUNAL]:            And the other time was when you went to some – what is it, the [Sang-e-Mashsa].  That’s what you told me.  Well you said you saw them in [Sang-e-Masha]?

    [INTERPRETER]:      I could not see – look into their eyes but I – I come face to face.

    [TRIBUNAL]:            Yes, you saw them in [Sang-e-Masha] is that right?  Not looked at them, just saw them?

    [INTERPRETER]:      It was not actually in [Sang-e-Masha], it was 20 to 25 minutes from our village and so it was on our way to [Sang-e-Masha], but it wasn’t in [Sang-e-Masha] where I met Talibans, where we were beaten, me and my father.”

18. That extract does indicate some confusion between the Tribunal and the applicant in the course of the hearing.  However, any confusion was removed.  The Tribunal established that there was an occasion when, according to the applicant, he came face to face with members of the Taliban, albeit that he was not permitted to look into their eyes.  This matter does not appear to me to give rise to any ground under s 476. 

19. The Tribunal then went on to say that the concerns already outlined would probably not be sufficient for it to reach an adverse conclusion about the credibility of the applicant’s evidence.  It accepted that the Taliban does mistreat people and abuse them because of matters such as the length of their beard.  It accepted that the Taliban has taken away young men from areas over which it has taken control and that Taliban members beat people.  The Tribunal acknowledged that the manner in which an applicant comes to be in Australia can have little direct bearing on the main question that the Tribunal is required to address, namely, whether he or she has a well-founded fear of persecution if returned to his or her own country.  However, the Tribunal considered that such a matter can have a bearing on the Tribunal’s assessment of an applicant’s general credibility. 

20. The Tribunal considered that the applicant’s account of his journey from Afghanistan and his claim to have known so little of where he went was not credible. The Tribunal said that the applicant’s continuing untruthfulness about that matter had contributed to the Tribunal’s inability to be satisfied as to his general credibility.  The Tribunal, therefore, was not prepared to extend the benefit of the doubt to the applicant.  It was not prepared to consider that the other aspects of his evidence might be true or substantially true, notwithstanding the difficulties with the claims that it had outlined.

21. The Tribunal did not believe that the applicant could have made his way all the way to Australia, even with the assistance of a smuggler, knowing so little about the journey.  The Tribunal therefore did not believe the applicant’s evidence about knowing so little was truthful. 

22. The Tribunal said that in its deliberations it gave no weight to the note on the Department’s file concerning the person associated with the Australian Afghan Association.  The Tribunal also considered a language analyst’s report, which indicated “with considerable certainty” that the applicant originated from Baluchistan in Pakistan.  The Tribunal, however, did not consider that a language analysis provided conclusive evidence that the applicant was from Pakistan and not from Afghanistan, and therefore considered that the evidence was of limited weight. 

23. However, the Tribunal’s consideration of the language analysis contributed to its doubt that the applicant had told a true story.  The Tribunal considered that the analysis suggested that the applicant had spent some time in Pakistan.  Overall, the Tribunal was unable to be satisfied that the applicant had given a true account of his circumstances.  It considered that he had given inconsistent evidence about his contact with and treatment by the Taliban.  It was not satisfied that his evidence about his brother’s disappearance and his father’s search for him was true and the Tribunal considered that the applicant gave untruthful evidence about the journey he undertook. 

24. The Tribunal was not satisfied that the applicant was in Afghanistan when he claimed or that he had difficulties with the Taliban.  The Tribunal was not satisfied from the evidence before it that the applicant is a Hazara and a Shi’a who is a national of Afghanistan, as he claimed.  Since the applicant had made no claims of persecution against any other country, there was therefore no basis on which the Tribunal could find that he had a well-founded fear of persecution elsewhere and so be entitled to Australia’s protection.  For that reason, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations.

25. It is not the function of this Court to reassess the findings of fact made by the Tribunal. Nor is it the function of this Court to reassess the Tribunal’s assessment of the credibility of a witness, except on one of the grounds that are specified in s 476(1). Accordingly, I am not persuaded that any of the grounds in s 476(1) exist in the present case.

26. The applicant’s principal concern is that the Tribunal’s assessment of the truthfulness of his evidence about his journey from Afghanistan determined the outcome.  That is so.  However, that is not a ground of review.  The Tribunal simply did not accept the applicant’s evidence that he had spent his life in a village in Afghanistan and that he was simply unable to explain where he travelled in coming to Australia because he did not know the places through which he travelled. 

27. There is one matter, however, that I wish to mention, although it has no bearing on the decision that I have to make.  Mr Colvin’s memorandum indicates that, since the hearing before the Tribunal, the applicant had been visited in detention by two other people from near his village in Afghanistan, who have been granted refugee status.  It is said that they are able to give evidence as to the applicant’s persecution in Afghanistan.  It is said that the applicant was unaware of their presence in Australia at the time of the hearing before the Tribunal.  The applicant therefore asked that the Tribunal consider additional evidence of such people before a final decision is made on the application. 

28. There is no evidence of those matters before me and it is not possible, therefore, for me to take them into account.  On the other hand, if the matters asserted have any substance, they could lead to the possible favourable exercise of a discretion by the Minister.  I do not, of course express any view at all as to how any application might be dealt with by the Minister.  However, it is desirable that the matter be brought to the Department's attention. 

29. It follows from what I have said that, in my view, the application should be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             12 September 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 August 2001
Date of Judgment:	3 August 2001