Ali Mohsen v Minister for Immigration & Multicultural Affairs

5 The Tribunal, after considering all the evidence, accepted that the applicant was Hazara and was a Shi'a Muslim. It noted independent country information indicating that there were significant Hazaran communities outside Afghanistan, including large numbers of Hazaras living in Pakistan. After considering all the evidence, the Tribunal rejected the applicant's claim to the visa because it was not satisfied that he was a citizen of Afghanistan at all, or that he had lived in Afghanistan as he claimed all his life prior to his departure to Australia. It had reached that decision, upon the whole of the evidence, for a number of reasons which it has identified. Those reasons included :

· that the applicant gave inconsistent accounts about the location of the village in which he claimed to have lived and the places he had visited in Afghanistan; · that the applicant's knowledge of places and events in Afghanistan was very limited; · that the applicant had no knowledge of the Afghan calendar; · that the applicant did not know basic information such as the capital of his province, dates in the Afghan calendar including his own date of birth or important events in the history of Hazaran people; · that the applicant had little or no knowledge of changes in Afghanistan implemented by the Taliban, and said in particular that there had been no changes affecting his mother or sister in Afghanistan notwithstanding independent country information of significant restrictions on women introduced by the Taliban; and · that the route the applicant claimed he took when fleeing from Afghanistan was implausible. 6 For those reasons, the Tribunal concluded : "Taking into account the inconsistencies in the applicant's description of the place he claims to have lived all his life, his limited knowledge of places and events in Afghanistan, his inability to identify any of the restrictions imposed on women by the Taliban, and the implausibility of his claimed route out of Afghanistan, the Tribunal finds that the applicant is not from Afghanistan and has not lived there all his life until he came to Australia. As the Tribunal does not accept that the applicant is from Afghanistan, it does not accept his claims that his uncle was killed by the Taliban or that his father decided he should leave Afghanistan to avoid being harmed by the Taliban. The Tribunal finds that the applicant has fabricated these claims to make a case for claiming to be a refugee." 7 Having reached those conclusions adverse to the applicant's claim the Tribunal also referred to linguistic analysis available to it which reported, upon analysis of the applicant's speech, that he "is most probably using an accent occurring in Pakistan". It regarded the linguistic evidence as supporting its conclusion that the applicant was not from Afghanistan as he claimed. It also added : "... The Tribunal also agrees with the point made by the applicant that 'Khan' is a name which is found in Afghanistan as well as Pakistan (the current education minister in the Taliban government is Amir Khan Muttaqi (Reuters Business Briefing, 2 April 2001 CS51609), and previous rulers of Afghanistan have been Habibullah Khan and Dost Mohammad Khan, to name two examples). ..." 8 Consequently, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and so he did not satisfy the criterion set out in s 36(2) of the Act for the grant of the visa. 9 The applicant was not represented at the hearing of the application before the Court. His application for review did not identify any ground of review of the Tribunal's decision referrable to s 476(1) of the Act. His oral submissions on the hearing before the Court largely repeated his claims before the Tribunal, rather than constituting an attempt to identify error on the part of the Tribunal in the process by which it came to its decision in a way which might enliven one of the grounds of review under s 476(1) of the Act. The Court on review does not conduct a re-hearing of the applicant's claim on the merits. Its function is to determine whether the Tribunal has erred in one of the ways which makes its decision reviewable under s 476(1) of the Act. 10 It is possible to discern from the applicant's contentions only one matter which, so far as I can see, could enliven a ground of review available under s 476(1) of the Act. The applicant pointed out that the Tribunal had erred in attributing to him that his father's name ends with the word "Khan". That is a matter upon which the linguistic analysis had placed some weight in the linguistic analysis report referred to by the Tribunal. The applicant pointed out that, in the particulars provided in support of his application for the visa, he had identified his father's name as Mohammad Essa, and had not described his name as being Mohammad Essa Khan. I have considered whether the Tribunal in that circumstance had made a decision in a way which enlivened s 476(1)(g) and (4)(b) of the Act, because it had made a decision when there was no evidence or other material to justify the making of the decision because the decision was based on the existence of a particular fact (that the applicant had ascribed to his father the name Khan) and that fact did not exist. 11 In my view, that ground of review is not made out. I shall assume, if it were established that the Tribunal had based its decision on the existence of the particular fact that the applicant had ascribed to his father the name Khan, and that fact did not exist, that that matter gives rise to the ground of review referred to: see Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495 and cp Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181. Even upon that assumption, in my view the ground of review is not made out. Firstly, it is not shown that the particular fact did not exist. In a statutory declaration signed by the applicant on 29 January 2001, albeit not written in the applicant's own hand, appears the information that he has no family name and that his father's name is "Mohammad Essa Khan". The proof of a negative is, of course, a very difficult matter. That document contains information before the Tribunal upon which it could have made the finding that the applicant ascribed to his father the name Khan by reference to that statutory declaration. It certainly prevents the applicant from demonstrating that he did not ascribe to his father that name, so that the particular fact which he has identified is not shown not to exist. In any event, it is also necessary to demonstrate that the decision of the Tribunal was based upon that particular fact. In the context of s 5(1)(h) and (3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which in terms is the same as s 476(1)(g) and (4)(b) of the Act, Black CJ, with whom Spender and Gummow JJ agreed, said in Curragh Queensland Mining Ltd v Daniels (1992) 34 FCR 212 at 220 - 221 ("Curragh") : "If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to 'proof of the non-existence of a fact critical to the making of the decision' [my emphasis]. See also Luu Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word 'critical' to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision. Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact." 12 In this matter, I am not satisfied that the decision was based on the existence of the fact that the applicant attributed to his father the name Khan. The Tribunal's decision was reached independently of that piece of information. It was only, as its reasons demonstrate, after having reached the decision that the applicant is not from Afghanistan, that it addressed the significance of the linguistic analysis of the applicant's speech. The particular fact under consideration was not critical to the making of the decision, in the sense explained in the passage from Curragh referred to above. It provided but an additional, and complementary, reason for the decision rather than providing a necessary link in the chain of reasoning leading to the conclusion. The Tribunal's own reasons make that clear. It said of the linguistic analysis : "... For these reasons, the Tribunal would not accept the language analysis as the sole determinant of whether or not the applicant is from Afghanistan. However, as the Tribunal has already found that the applicant is not from Afghanistan, it accepts the language analysis as being supportive of this finding." 13 Apart from that point, as I have noted above, the applicant's submissions to the Court really constituted a recital of the claims he made to the Tribunal, and which were rejected by the Tribunal. I did not discern in those submissions anything which would indicate an error on the part of the Tribunal in the process by which it came to make its findings of fact or reach its conclusions. At one point, the applicant complained that the Tribunal had not given him a sufficient opportunity to express his concerns about Taliban, but the process by which the applicant came to appear before the Tribunal, and to participate in the hearing before the Tribunal, does not indicate any error on its part in failing to comply with s 425(1) of the Act. There is nothing in the Tribunal's reasons to indicate that it did not properly apply the law, and in my judgment it is shown to have considered and addressed the concerns of the applicant if he were to return to Afghanistan, and to have understood the nature of the evidence he gave to it concerning those concerns and to have dealt with those concerns in its reasons. 14 Accordingly, in my judgment, the Tribunal is not shown to have fallen into reviewable error. I consider that the application should be dismissed. I see no reason why the normal order for costs should not be made. The applicant should pay the respondent's costs of the application to be taxed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Respondent: Mr M Roder Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 22 August 2001 Date of Judgment: 29 August 2001