Adil v Minister for Immigration and Multicultural Affairs

grounds of the application 7 The grounds of review set out in the applicant's amended application were as follows: "a) The Tribunal erred in law in determining that the Applicant did not have a well-founded fear of persecution for a convention reason, on the basis that the Tribunal was not satisfied that the Applicant was an Hazara from Afghanistan and the Applicant had made no other claims of persecution: PARTICULARS i. The Applicant claimed that he was a Hazara Shia, 18 years of age, a citizen of Afghanistan, from the sub-village of Baki, part of the village of Seroo, in the Province of Orozgan and that he fled Afghanistan because he feared being taken by the Taliban and killed. ii. The Tribunal accepted that the Applicant was a Hazara and that he was a Shia Muslim. iii. The Hazara people originate from Afghanistan and from no other country and the vast majority of all Hazaras are nationals of Afghanistan. iv. There was material before the Tribunal that there were Hazara communities in Pakistan and that some members of those communities were Pakistan nationals. v. The language analysis indicated that the Applicant spoke Hazaragi with only Afghani words and that he had a slight Pakistani accent. The analyst's conclusion was that the Applicant was from Afghanistan, but had spent some time in Pakistan. vi. In determining that the Applicant was not a citizen of Afghanistan the Tribunal considered that in relation to the Applicant's claims, it was implausible: · That the Applicant as a young boy would not have left his village in rural Afghanistan; · That the Applicant's father would operate his business from the nearest town, but continue to live in a remote village several hours walking away; · That the Applicant could study and learn to read the Koran in Arabic without reading his own language Dari; · That the Applicant would not have a greater knowledge of his own father's business; · That the Applicant would not have a greater knowledge of the Political events in Afghanistan over the last 25 years; · That the Applicant would not be aware of the parties comprising the Hesb-e-Wahdat formed in Iran in 1987; · That there was no school or shop in the Applicant's village; · That the Applicant did not mention any of 29 matters by which the Taliban imposed restrictions and punishments upon Afghani women. There was no material before the Tribunal concerning the ordinary village and family customs and/or the personal knowledge of a person claiming to be in the position of the Applicant namely an 18 year olf Hazara from an isolated village in Orozgan. vii. None of the matters which the Tribunal relied upon to doubt the Applicant's claims were inconsistent with the Applicant's claims to have lived all his life in his village of Baki. viii. None of the matters relied upon by the Tribunal indicated that the Applicant was a national of any country other than Afghanistan. ix. There was no material before the Tribunal, which indicated that the Applicant was not an Afghani citizen. x. There was country information before the Tribunal which showed that the Taliban (who ruled 90% of Afghanistan and the whole of the areas generally populated by the Hazara people at the time the Tribunal decision) in particular persecuted the Hazara people because of their Shia religion. xi. In those circumstances the Tribunal failed to allow for the possibility that the Applicant was a citizen of Afghanistan and that he was therefore be at risk of persecution from the Taliban if returned to Afghanistan. xii. The Tribunal failed to apply the correct test for well founded fear of persecution namely whether there was a real chance of persecution but rather 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 and therefore could not be satisfied as to the Applicant's nationality. xiii. If the Tribunal could not be satisfied that the Applicant was telling the truth the Tribunal had at least country information that the vast majority of Hazaras are Afghani citizens and secondly a language analysis which stated that the Applicant was of Afghani origin. xiv. The Tribunal's decision was illogical in the sense that it was perverse and was based on material, which was incapable of supporting the conclusions reached by the Tribunal. b) The Tribunal erred in law, alternatively made its decision without jurisdiction, alternatively its decision was not authorised by the Migration Act. PARTICULARS i. The Tribunal relied on irrelevant considerations in making its decision and the Applicant repeats Particulars contained in (a)(vi) above. ii. There was no material before the Tribunal, which could support the Tribunal's a finding that the Applicant was not a national of Afghanistan."

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.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Solicitor for the Applicant: Messrs Christie & Strbac

Solicitor for the Respondent: Australian Government Solicitor