Adil v Minister for Immigration and Multicultural Affairs

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · In his application for a protection visa, the applicant stated that he was born on 10 April 1983 in Buki, Seroo, Orozgan Province in Afghanistan and had lived there all his life before coming to Australia. · He was of Hazara ethnicity and a Shi'a Muslim. · His parents and four siblings are still in Afghanistan. · He is uneducated and did not work prior to his departure from Afghanistan. · The Taliban had been in his province for about five years; they came to his village about three years ago. · The Taliban would come to his sub-village on a weekly basis to find out whether anyone belonged to the Wahdat Party. They would search the area for guns and ammunitions and on many occasions visited his house. · Before the Taliban arrived, he would leave and hide in the mountains and remain there until he thought it was safe to return. · On about three or four occasions in the last three years he was caught by the Taliban while he was trying to run away and he was beaten by them. · Many people had been taken from his sub-village and have never returned. · His paternal uncle was taken by the Taliban about a year ago and had not been seen since. The people who were taken were all Hazaras; he did not know if the Taliban just killed them or took them to the frontline. · He began to fear for his own life and felt that he must escape; his mother asked him to leave because he was the eldest and so at most risk of being captured. · The elders in his village said that the Taliban did not want Shi'as and Hazaras in Afghanistan, and do not allow them to practise their religion or lead their lives according to their tradition and customs. · A school in Orozgan which was established with foreign aid had been closed by the Taliban, who put a religious school in its place and forced young people to go there and learn about the Taliban's practices. · His father made arrangements for him to depart Afghanistan in January 2001; a smuggler collected him from the centre of Orozgan and drove him across the border into Pakistan. · He fears that if he returns to Afghanistan he will be killed because he is an Hazara and a Shi'a and because he left the country illegally. 3 On 10 April 2001 the applicant was interviewed by the respondent's delegate. The delegate sent a tape of that interview to a Swedish agency specialising in translations and linguistic analyses. The agency provided an analysis which I will summarise as follows. The analysis included an explanation that the speech on the tape was Dari and that the person speaking most probably had his language background in Afghanistan. This was because he spoke Dari with a Hazaragi accent. This dialect was spoken in the central and western parts of Afghanistan, Baluchistan in Pakistan and in the south-eastern parts of Iran. The pronunciation was very typical for Hazaragi. Hazaragi was obviously his mother tongue and he used typical Hazaragi and Afghan local words. The speaker appeared not to be educated and had only a little knowledge about his neighbourhood, the villages around, the culture and traditional celebrations. He did not use any specific Pakistani words but had a slight Quetta accent, which indicated he had been living for some time in Pakistan. 4 In response to the respondent's delegate's offer to comment on the language analysis, the applicant submitted a letter stating that he spoke Hazaragi in the way everyone did in the area from which he came, that the language had changed over the years and had been influenced by the languages of neighbouring countries. He stated that he had never been out of his village because it was a very mountainous area and it was almost impossible to visit nearby villages. The applicant noted that Mullahs were educated in Iran and Pakistan and taught new Farsi and Urdu words to the people in Afghanistan. His father was in partnership with his uncle and his uncle travelled to Pakistan to buy goods and he may have picked up a Pakistani accent from him. 5 The applicant was represented at the hearing in this Court by Mr H Christie of counsel. Mr Christie tendered in evidence a transcript, which he had caused to be prepared, of the proceedings before the Tribunal. The transcript ran to some 28 pages, almost all of which comprised intense questioning by the Tribunal of the applicant about his knowledge of the area in which he lived, his knowledge of his father's business, the local population, recent history of Afghanistan affairs and the like. It is apparent from the transcript and from the Tribunal's reasons that it was unimpressed by what it considered to be how little the applicant knew of these matters. 6 I shall not attempt to summarise the Tribunal's findings and reasons, but I set them out below with the excision of some country information (indicating where I have done this). I have numbered the paragraphs to facilitate references which I make later in these reasons. "FINDINGS AND REASONS

the applicant's submissions 8 The applicant's written submissions were based largely (but not exclusively) on the eight matters listed in paragraph (vi) of the particulars to the first ground of review. I shall refer to those matters as "the Eight Matters". These were said to be matters which the Tribunal considered to be implausible when it determined that the applicant was not a citizen of Afghanistan. Although the Tribunal did not always use the word "implausible" in this connection, and although I could find no reference to the Tribunal stating that it was implausible that there was no school in the applicant's village, I think that it is fair to say that these were matters upon which the Tribunal relied in deciding not to believe the applicant. This can be seen by reference to paragraphs numbered 13, 16, 17, 18, 19, 21, 14, 24 and 25 of the Tribunal's reasons set out above. 9 There were at least two other matters upon which the Tribunal relied. For example, in paragraph numbered 17 in which the Tribunal said that it was not satisfied that the applicant was an uneducated person as he claimed to be, it noted that the applicant appeared to be able to follow instructions in English. It made the same observation at the hearing - see the relevant passage at page 14 of the transcript. At this stage of the hearing, the Tribunal had asked the applicant to pick up the Koran, open it and read something from it. First he read from the first page of the Koran and then the Tribunal (through the interpreter) asked the applicant to open the Koran at another page. The applicant, according to the Tribunal's observation, followed that instruction before the interpreter had time to translate it. The Tribunal put that observation to the applicant quite clearly - see page 15 of the transcript. In the light of the responses from the applicant, it was open to the Tribunal, in my opinion, to disbelieve the applicant's evidence about his state of education. 10 There was also a map of Afghanistan on which the Tribunal relied. The map showed that Khaz Orozgan was about 5 kms from the applicant's sub-village, not the long journey which the applicant had described. 11 The applicant submitted that the Tribunal had fallen into error of law in relation to the Eight Matters because there was no material before it concerning the ordinary village and family customs of Afghanistan, or what would be the personal knowledge of an eighteen year old from an isolated village in Orozgan. None of the Eight Matters, so it was put, was capable of supporting the conclusion by the Tribunal that the applicant's claims were implausible. Further, so the applicant contended, none of the material before the Tribunal supported or was capable of supporting the inference that the applicant was a national of any country other than Afghanistan. 12 In my view, these submissions do not pay sufficient attention to the fact that, to the extent that the Tribunal relied on the Eight Matters, it was doing so in the course of making a credibility finding i.e. that it did not believe the applicant's claim that he was from Afghanistan. 13 Other minds might regard the Eight Matters as not forming a strong enough basis for such a credibility finding but, in my view, this part of the Tribunal's reasoning process does not disclose reviewable error or jurisdictional error. The first in the list of Eight Matters was the applicant's claim that he had never left his village even to visit the main village of Seroo of which his own village was a sub-village. The applicant told the Tribunal that this was because his father did not allow him to leave the sub-village after the Taliban came. The Tribunal (see paragraph numbered 13 of its reasons) noted that the applicant had stated that the Taliban only came to his village three years ago and that this did not explain why he had not visited Seroo before that i.e. at any time during the first 15 years of his life. It was open to the Tribunal to reach that conclusion. 14 In my view, many of the particulars listed at paragraphs (vii) to (xiii) constitute an attempt at merits review of the Tribunal's decision. I shall deal only with some of them. At paragraph (ix) there is the assertion that there was no material before the Tribunal which indicated that the applicant was not an Afghani citizen. This simply ignores the fact that the language analyst expressed the opinion that the applicant had spent "some time" in Pakistan. Similarly, at paragraph numbered 10, the Tribunal referred to country information about the substantial number of Hazaras currently in Pakistan. 15 The applicant abandoned his assertion [see paragraph (xiv)] that the Tribunal's decision was perverse. But it pressed the contention that the Tribunal's decision was illogical in the sense that it was based on material which was incapable of supporting the conclusions reached by the Tribunal. 16 The conclusions which the Tribunal reached were that the applicant was not an Afghan national, did not come from Afghanistan and had not lived there under Taliban rule. It reached those conclusions on the basis that it disbelieved the applicant's evidence to that effect. 17 As I have mentioned, that credibility finding might be open to criticism, but in reaching it I do not think that the Tribunal fell into error of law or jurisdictional error. In my view, the material to which I have referred above when coupled with the Tribunal's adverse credibility finding constitute sufficient material to support its conclusions. 18 In oral submissions Mr Christie advanced what he described as his strongest argument. That was that the Tribunal, having found that the applicant was not to be believed, should have had regard to the general country information about the large number of Hazaras living in Afghanistan (see paragraph numbered 7 of the Tribunal's reasons) and the language analysis from Sweden. This was independent evidence from which it was open to the Tribunal to find that the applicant was an Afghan national. 19 In my opinion, the Tribunal did not fall into error in the manner claimed. At paragraph numbered 7 of its reasons it noted the country information about the Hazaras. It also had the further information, which it noted at paragraph numbered 10 of its reasons, about the large number of Hazaras currently in Pakistan. 20 As to the language analysis, the analyst explained that his or her opinion that the person speaking has "most probably his language background in Afghanistan" was based on various matters. The first of these was that the person spoke Dari with a Hazaragi dialect which was spoken in the central and western parts of Afghanistan, Baluchistan in Pakistan and in the south-eastern parts of Iran. Later in that report there was the reference to a slight Quetta accent indicating that the speaker had been living for some time in Pakistan. 21 Mr Christie contended that the Tribunal was in a situation where there were only two choices open to it. It had to decide whether the applicant was an Afghan national. If it decided that the applicant was not an Afghan national, it was obliged to decide whether or not he was a national of Pakistan. 22 In my opinion, the Tribunal having made clear findings to the effect that the applicant was not an Afghan national, was not obliged to decide whether he was a national of Pakistan. The Tribunal dealt with this question at paragraph numbered 30 of its reasons above. It considered whether the applicant might be a national of Pakistan, but concluded that there was insufficient evidence to make a finding that the applicant had rights of residence or citizenship in relation to any country other than Afghanistan. I do not think that it erred in taking that course. While acknowledging that the facts of Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 are not on all fours with the present matter, I adhere to the view which I expressed at [22] and [23] in that case. The main difference between the two cases was that in Hussain the language analyst's conclusion was squarely against the applicant, whereas part of the evidence from the language analyst in this matter favoured the applicant. The Tribunal, having disbelieved the present applicant's claims, can be seen (at paragraph numbered 28 of its reasons above) to have focused on that part of the analyst's assessment, to the effect that the applicant had been living for some time in Pakistan, as being contrary to his claim of having lived in Afghanistan all of his life and never having left his sub-village. 23 In my view, the Tribunal was under no obligation to make a positive finding on the question whether or not the applicant was a national of Pakistan or had rights of residence or citizenship in relation to any other country. 24 The applicant submitted that even if the Tribunal were entitled to reject and disregard the applicant's claims as "untrustworthy", it was still required to determine on the remaining material before it whether the applicant was a refugee. 25 In my view, that is not the case. One of the essential bases of the applicant's claims to be a refugee was that he came from Afghanistan and was fleeing from Taliban persecution. He was disbelieved. The Tribunal found that he did not come Afghanistan and had not lived there under Taliban rule. In those circumstances, I do not think that the Tribunal was obliged to consider the remaining material bearing on the question whether the applicant was a refugee. 26 The applicant submitted that the Tribunal had failed to apply the correct test for well-founded fear of persecution on the basis that a consideration of its findings as a whole showed that it had not applied that test. 27 The Tribunal correctly set out the relevant principles of law in the initial part of its reasons. In my opinion, there was nothing later in its reasons to indicate that it did not correctly apply those principles. The essence of the applicant's criticism is that the Tribunal dealt with the issue of the applicant's nationality simply on the basis that it could not be satisfied that the applicant was telling the truth. As I have said, I think that as a matter of law it was entitled to take that approach. 28 Next the applicant complained that the Tribunal in reaching its conclusion that it was not satisfied that the applicant was a national of Afghanistan had equated such a state of satisfaction as being something more onerous than a balance of probabilities. 29 Nowhere in its reasons did the Tribunal refer to an onus of proof or to the "balance of probabilities". The applicant relied heavily on the language analysis as being "clearly probative". As I see it, the Tribunal had regard to the language analysis but, because it could not believe the applicant, decided not to rely on the language analyst's conclusion that it was "most probable" that the applicant had his language background in Afghanistan. Its reasoning was that the analyst's assessment that the applicant had been living for some time in Pakistan was "not supportive" of his claim that he had lived in Afghanistan all his life and had never been out of his sub-village until he came to Australia - see paragraph numbered 28 of its reasons. 30 Finally, the applicant submitted that the considerations or material on which the Tribunal relied to draw its conclusions were incapable of supporting the conclusion and accordingly were irrelevant. Having relied on such irrelevant material it had, so the applicant submitted, exceeded its jurisdiction. 31 As I have already expressed the view that the material upon which the Tribunal relied to make its credibility assessment cannot be regarded as irrelevant, I do not consider that this ground has been made out.

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Judgment (7 paragraphs)

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Legislation Cited (1)

Cases Cited (4)