Arif v Minister for Immigration & Multicultural Affairs

the tribunal's reasons 8 The application failed because the Tribunal was not satisfied that the applicant gave a truthful account of his experience and where he has lived. Consequently, it was not satisfied that he is a national of Afghanistan as he claimed, and therefore did not have a well-founded fear of persecution in the manner in which he asserted. The Tribunal said: "Taken all together, I am not satisfied that the applicant has given a truthful account of his experiences and where he has lived. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992 para. 196) states that if an applicant's account appears credible, then they should, unless there are good reasons to the contrary, be given the benefit of the doubt. However, it also states that the benefit of the doubt should only be given when the examiner is satisfied as to the applicant's general credibility. 'The applicant's statements must be coherent and plausible, and must not run counter to generally known facts' (para. 203). The applicant's evidence about the Taliban's collection of weapons and when this occurred and about the Taliban's treatment of Shia was in significant ways not consistent with information about what has happened since the Taliban swept through the country. His claims of having hid at the mountain to avoid the Taliban was not credible. His readiness to explain difficulties by saying he was illiterate was not convincing given that he did not appear, even on his own evidence, to be the very simple person who had never been anywhere or done very much: he had travelled and driven around the province. I have already noted that he was able to collect his thoughts at times during the hearing. I understand that the applicant was young when the Taliban took over but I have wondered if he is really quite as young as he has claimed (he has said he was born in 1980). The only credible evidence before me to support his claim to be an Afghan national is his speaking of Pashto, a language which is spoken in Pakistan as well as in Afghanistan and so not something which could determine his nationality. I am unable to be satisfied from the evidence before me that he is a national of Afghanistan as he claims."

the grounds of review 9 As the application was instituted before the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) on 2 October 2001, the Act as in force prior to that date applies to the Court's consideration of this application. The relevant grounds of review are therefore those available under s 476(1) of the Act as it stood prior to that date. The applicant has invoked the grounds of review specified in ss 476(1)(a), 476(1)(e) and 476(1)(g) of the Act. As counsel for the applicant acknowledged, the contentions really were two-fold. 10 The first is that the Tribunal failed to comply with procedures required by s 425 of the Act to be observed in connection with the making of its decision, because it did not give the applicant a reasonable opportunity to give his evidence and present his arguments to the Tribunal, so as to enliven s 476(1)(a) of the Act. The same conduct on the part of the Tribunal, in circumstances, was said to amount to an error of law on its part, so as to enliven s 476(1)(e) of the Act and to indicate the Tribunal lacked jurisdiction to decide the application so as to enliven s 476(1)(d) of the Act. 11 Section 425(1) as introduced by the Migration Legislation Amendment Act (No.1) 1998 (Cth), effective from 1 June 1999, provided that: "The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." Prior to that time, it provided: "Where s 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; (b) may obtain such other evidence as it considers necessary." Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 found that the obligation imposed upon the Tribunal under s 425(1)(a) of the Act as it stood prior to 1 June 1999 required the Tribunal to afford an effective opportunity to a non-English speaking applicant to give evidence through a competent interpreter, so that a failure to do so would be reviewable under s 476(1)(a) of the Act. 12 The submission on behalf of the applicant implicitly asserted that the obligation under s 425 as in force subsequent to 1 June 1999 was of the same character. It was then submitted that the interpretation in fact provided at the hearing before the Tribunal on 31 May 2001 was not of a sufficient quality to ensure that justice was done or seen to be done, so the Tribunal failed to comply with s 476(1)(a) of the Act. It was also contended that, in the circumstances, the Tribunal also lacked the jurisdiction to continue the hearing: see per Kenny J in Perera at 17 [21] because it did not afford an effective opportunity to the applicant to give evidence, so as to enliven the ground of review available under s 476(1)(d) of the Act, and amounted to an error of law under s 476(1)(e) of the Act. 13 The respondent submitted that the only obligation now imposed upon the Tribunal by s 425(1) of the Act is to invite an applicant to appear before the Tribunal where the Tribunal cannot decide in favour of the applicant on the papers. The requirement is but a formal one, provided it is a genuine one, and does not place any further procedural obligations upon the Tribunal, in particular to provide a competent interpreter at the hearing. In this matter, it was accepted that the Tribunal had invited the applicant to attend the hearing, and that he had responded. It was not suggested that the invitation itself was not genuine. Consequently, the respondents first position was that it had complied with the extent of the procedural obligation imposed by s 425(1) of the Act. In any event, the respondent submitted, the Tribunal had provided to the applicant a competent interpreter of sufficient standard to secure for him a hearing giving him the opportunity to tell the Tribunal that which he wished to tell the Tribunal and to make such submissions to the Tribunal as he wished. 14 In Tobasi v Minister for Immigration & Multicultural Affairs [2002] FCA 1050, I reviewed the authorities of the Court addressing the nature and extent of the obligation imposed upon the Tribunal by s 425(1) as in force from 1 June 1999: see [35-41]. In particular, I referred to the decision of the Full Court (Black CJ, Hill and Weinberg JJ) in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362. For the reasons which I there expressed, I considered it appropriate to proceed on the basis that the obligation imposed by s 425(1) of the Act is in effect of the same nature as that which existed under s 425(1)(a) as it previously stood. 15 I accept, in the absence of contrary evidence, the accuracy of the transcription of the hearing as it took place before the Tribunal as deposed to by Warren Brown and Barbara Brown. I also propose to admit on the hearing of this application the affidavits of Amanullah Hosiani, interpreter, and M Asif Hamkar, a horticulturalist who claims to speak Pashtu fluently, to the extent to which they give evidence as to the things which were said at the hearing of the Tribunal on 31 May 2001. That evidence also proves the accuracy of the transcription of the hearing before the Tribunal from the recording of that hearing. It also identifies those parts of that transcription where, upon the evidence of those persons, that which was transcribed did not accurately record what was said by the Tribunal to the applicant, or what was said by the applicant to the Tribunal. It identifies the discrepancies in interpretation. In the absence of any cross-examination challenging the qualifications of those persons, I am prepared to receive the evidence as indicating to some degree the interpretation variations to which it refers. That evidence also asserts that the applicant is speaking Pashtu words unique to Paktia province in Afghanistan, apparently to invite the Court to infer that on linguistic analysis of the applicant he is from that province of Afghanistan. I do not accept that part of the affidavits. It does not demonstrate reviewable error on the part of the Tribunal. In my view, it is an attempt to re-argue the merits of the Tribunal's decision. For the same reasons, I do not receive the contents of par 13 of the Hamkar affidavit. 16 It remains on this aspect to consider whether the applicant's claim that he did not in substance have a hearing of his application because of interpretation difficulties is made out. I note that counsel for the applicant, in opening remarks, contended that the interpreter was argumentative or hostile, played a greater role than simply interpreting that which had been said by the Tribunal to the applicant and by the applicant to the Tribunal, and "persisted" in the course of the hearing in failing to translate things said by the Tribunal to the applicant or by the applicant to the Tribunal, and in conveying things said by the applicant to the Tribunal in a confusing and inadequate way so as to potentially adversely affect the Tribunal's perception of the nature of the applicant's evidence. 17 The transcript of the hearing occupies 40 pages of single space typing. According to the transcript, the hearing commenced at 4.30 pm and finished at 7.00 pm on 31 May 2001. The Hamkar affidavit identifies four discrepancies or inadequacies in interpretation by the interpreter at the hearing, although the discrepancies may have occurred in one or more places. The Hosiani affidavit identifies five discrepancies between what was actually said in Pashtu and in English at the hearing according to the deponent compared to that as recorded in the transcript. Numerically the discrepancies are not very great. There is only slight overlap between the matters identified by the two deponents. I will deal with those matters in the sequence in which they appear in the transcript. · At an early point in the interview, the Tribunal explained the nature of a refugee, under Art 1A of the Convention. The Tribunal used the expression "a person who is unable or unwilling to return to their country", but that is said to have been interpreted to the applicant at the hearing as being a person who "does not want to go to their own country". The applicant responded "I am not going to my country", whereas that response was interpreted as "I don't want to go". I do not consider this difference has any significance to the Tribunal's decision making process. · The Tribunal, by reference to a map, told the applicant the Tribunal was going to try to understand a little more about where the applicant claimed to come from in Afghanistan. There was a discussion about whether the applicant was born in Astia Ghondi. The full discussion is not apparently recorded. I suspect the applicant responded referring to Soor Kheail Reishta Ghondi. The Tribunal is recorded as saying "OK. So it's completely different. No wonder I couldn't find it". That observation does not appear to have been conveyed in Pashto to the applicant. The transcript indicates that the interpreter continued to translate, apparently from something the applicant said, "that means hill", and that "Reishta is the truth - is the name". The transcription records that the applicant and the member were apparently speaking simultaneously. The Tribunal's reasons indicate that it based no significance on the difference in those descriptions, and in fact adopted the description or name of each of those places as the applicant's place of claimed residence. · The one common point made by each of the deponents is that during the hearing the applicant's response "ahhh" was interpreted as meaning "I don't understand" when, depending upon the pitch, it meant "yes". Hamkar suggests that happens generally. Hosiani, on the other hand, whilst noting the same point, says that on some occasions "I don't understand" was translated instead of the appropriate word "yes". That is, one of the deponents says "ahhh" meant "yes" and was inaccurately translated as "I don't understand" and the other says it meant "I don't understand" and was not inaccurately translated as "yes". The difference between them may indicate the nuances of interpretation from regional variations. But the very difference does not provide a foundation for considering that one or other of them, or the interpreter at the hearing, identified and translated the incorrect meaning. Moreover, only one illustration is given. The applicant was asked whether his birth town was in Shareen as stated in his application, and his response "ahhh" is interpreted as "oh he doesn't know". But it is said by Hosiani that the correct translation is "I don't understand". The Tribunal, however, clarified the matter in the next succeeding questions by again pointing out that the applicant in his application claimed to have been born in Reishta Ghondi Shareen and the applicant having responded that that was incorrect, as he was born in Reishta Ghondi Soor Kheail. The issue does not appear to have enlivened the Tribunal's interest in any way significant to its determination. No other illustration was given so as to suggest that the applicant did not have an opportunity adequately to present his case. · Shortly thereafter the Tribunal asked the applicant how long it would take to walk from one town to the other (Reishta Ghondi from Soor Kheail). Apparently the applicant commenced to respond before the interpreter had completed the translation to him, and the interpreter put the question again and conveyed the response "it's very close nearly. I just remind him to give us the exact distance". The latter part of the answer appears to be a comment of the interpreter. However, the next answer of the applicant, as translated, is "five or 10 minutes". So the exchange does not indicate that the interpreter has not properly understood and conveyed the question to the applicant or that the applicant has responded inappropriately. Hosiani claims that his answer was "15 minutes". Again that is not a difference of moment to the Tribunal. · The Tribunal asked the name of the big towns near the applicant's village. Hosiani says that was interpreted as "your village belongs to which city of district". The answer then given is Shareen, and there is then a discussion about its relative size and distance from the applicant's village. It is not suggested that information was incorrectly translated. The Tribunal then repeated the question as to whether the applicant could tell him about any big towns or cities that were near where he lived, so the applicant had an opportunity to respond to the question. · It then appears that the Tribunal and the interpreter looked at the map in front of the Tribunal to try and identify the town Shareen. Their discussion was not translated. The interpreter appears to have been endeavouring to assist the Tribunal in locating that place. The Tribunal then moved to ask about bigger towns that are near or not too far away from where the applicant lived and is given a further answer which the Tribunal pursues. The "private discussion", whether or not desirable, is not shown to have had any significance in relation to the Tribunal's deliberations or to have prevented the applicant from putting his claims to the Tribunal. · The next complaint concerns a question by the Tribunal to the applicant "did you help your father?". The recorded translated answer is "Yes, sometimes on the farm, on the land". The applicant was then asked, and responded apparently sensibly, about the sort of things he did for his father. Hamkar says that the applicant's first reply was "thi", which means "Do you mean that I am working?", and the interpreter then said to the applicant in an angry way "Why are you answering with 'thi' all the time?, all the questions are for you, not for me". That exchange did not take place in English, and was not a matter which the Tribunal received. It appears that the Tribunal, perhaps with the inappropriate intervention of the interpreter, had its question properly interpreted to the applicant and the applicant responded in terms which indicate that he understood the question and answered it appropriately. · The final issue concerns questions of the applicant about his brother having been taken by the Taliban. The Tribunal asked: "Where were you at the time he was taken away?" The affidavit of Hamkar then indicates that the applicant responded: "Waregena", which means "outside the house", but the interpreter did not translate that response apparently because the interpreter may not have understood it, and sought to clarify the answer with the applicant. The exchange as recorded then is as follows: "A. I was not aware of that when I came to home not only he was taken two others were taken from the same village. Q. And were the others Shi'as or Sunnis? A. Shi'a. Q. And so when were you, where had you been? A. So he was using a word which was not common to me so I just clarify and then he clearly said I was in the field. [This is the point at which there is said to be some misinterpretation, being "outside the house" rather than "in the field".] Q. So you were out harvesting or something like that? A. No, I was just walking on the farm when I returned home, came home that incident happened." Nothing particularly turned upon that misinterpretation, and I do not think it demonstrates that the applicant was impeded in giving his evidence to the Tribunal in any way so as to suggest that his opportunity to give evidence to the Tribunal was not provided. 18 Overall, in my judgment, the complaints based upon the quality of interpretation before the Tribunal do not demonstrate that the Tribunal did not comply with s 425(1) of the Act in the circumstances. None of the claimed interpretation errors or inadequacies taken alone could, in my view, have that consequence. Moreover, the claimed errors or inadequacies occupy in all but a very small proportion of the overall transcription of the hearing, and the overall picture as the transcription indicates reveals a coherent and comprehensible exchange over a lengthy period between the Tribunal and the applicant. Consequently, the grounds of review relied upon under s 476(1)(a), (d) and (e) of the Act are not made out. 19 It may be assumed, as the applicant contends, that the standard of interpretation is that required to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings: Kenny J in Perera at 18-19 [28]. That requires, as her Honour said, precision in interpretation as well as competence of the interpreter. Her Honour pointed out at 23 [45]: "It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision: cf Yi Gui Stone v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Hill J, 28 June 1996)." For the reasons already given, I am not satisfied in this case that any departure from the standard of interpretation related to matters which were significant for the applicant's case and the Tribunal's decision. The passages specifically identified by the applicant, which I have discussed above, may have involved departures from the standard of interpretation in some limited respects but I do not think it is shown that those departures in any way were significant to the applicant's case or to the Tribunal's decision, including its assessment of his reliability as a witness. As I have pointed out, those departures are not shown to have led to the Tribunal misunderstanding in any way the nature of the applicant's claim, and in most instances the Tribunal in fact followed up the answer which is said to have been unreliable or incomplete or inaccurate in a way which demonstrates that the applicant was then given the opportunity to address precisely the question he was asked and that he did so. In my judgment he was not prevented from giving evidence on matters relevant to his application for refugee status. 20 The alleged inadequacies in interpretation in this matter, in my view, even accepting the evidence of Hamkar and Hosaini, are similar to the circumstances in Dabare v Minister for Immigration & Multicultural Affairs [2000] FCA 731, and Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759, per Moore J and Goldberg J respectively. Their Honours reached a similar conclusion. I do not think there is anything to be gained by referring in detail to their Honours' reasons for their conclusions, based on the particular circumstances of the case, but in my view they are each consistent with the requirements imposed or recognised in Perera. 21 The second ground of review seeks to enliven s 476(1)(g), namely that there was no evidence or other material to justify the making of the decision. The way in which that ground of review should be approached has been the subject of the recent High Court decision in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32. I do not think it is necessary to refer to that decision in detail in this matter. It is clear that the ground of review so available is not to be taken to have been made out unless, relevantly, the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist: see s 476(4)(b) of the Act. 22 In this matter, counsel for the applicant contended that the hurdle imposed by s 476(4)(b) was overcome in relation to the particular fact that: "The Taliban had been relentlessly anti-Shi'a, and that the applicant's evidence that the attitude of the Taliban to Shi'a Muslims in his area changed over time was not true." 23 It is plain that the applicant said that the attitude of the Taliban towards his area and persons of the Shi'a Muslim religion in his area changed over time. The Tribunal accurately recorded the applicant's claims in the following terms: "The applicant states that the Taliban took control of his area about five years ago. He states that it was alright at first and that people in his village saw little of the Taliban. He said that it was after a few years and after the fighting in Mazar-e-Sharif that the Taliban turned nasty." The Tribunal recorded the applicant's evidence to that effect at different points in its reasons for decision. It recorded the applicant, again not inaccurately, as describing the Taliban asking for the surrender of weapons soon after they took control of the area, and that sometime later, after the battles in Mazar-e-Sharif in 1997 and 1998 the Taliban turned nasty and it became impossible for him to practise his religion. 24 The evidence of the applicant on those matters was one of the reasons why it was not satisfied that the applicant had given a truthful account of his experiences and of where he had lived. His evidence about the Taliban's collection of weapons and when this occurred, and about the Taliban's treatment of Shi'a, the Tribunal found to have been in significant ways not consistent with information about what had happened since the Taliban swept through the country. It said it found that evidence "difficult to reconcile" with independent information about the Taliban's treatment of Shi'a Muslims. It said, correctly, that there is considerable evidence to indicate that the Taliban has been relentlessly anti-Shi'a from the beginning. It referred to the information upon which that view was based. It recognised that there was other information, including advice from the Department of Foreign Affairs and Trade in March 2001, which did not necessarily paint the same picture. Counsel for the applicant drew attention to other independent country information about a significant increase in the vehemence of Taliban mistreatment of Hazaras and Shi'a Muslims after the battle of Mazar-e-Sharif in the latter part of 1998. I do not think that material is inconsistent with the material to which the Tribunal referred. It said: "I have considered the applicant's adviser's submission that because the applicant was Pashtun and lived in a Pashtun and largely Sunni village then the Shi'a there may not have come to the attention of the Taliban in the early days of their control over the area but remained concerned about the plausibility of there being no trouble for Shi'a for such a long period as three years given the depth of the Taliban's hatred of Shi'a." 25 I have carefully considered the independent country information to which counsel for the applicant referred. I do not think it demonstrates that, prior to the latter part of 1998, the Taliban were not anti-Shi'a, or that they did not engage in persecutory conduct towards Shi'as and Hazaras. It certainly demonstrates, as the applicant himself described and as the Tribunal itself accepted, that the Taliban attitude towards Hazaras and Shi'as in Afghanistan led to very brutal persecution after the battle of Mazar-e-Sharif. 26 But that does not provide a foundation for the applicant's claim. It is necessary for the applicant to establish that the Taliban's attitude to him and other Shi'a Muslims in his area, prior to the latter part of 1998 was amicable. The Tribunal found there was an element of implausibility about that claim, namely that there was no trouble for Shi'a for that period of three years or so. The Tribunal identified material upon which it could have, and did, form the view that the Taliban's hatred of Shi'a pre-existed the battle of Mazar-e-Sharif and that in various ways that hatred was evidenced by adverse conduct towards Shi'a Muslims. 27 In my judgment, the applicant has simply not established that the "particular fact", namely that the Taliban did not have a depth of hatred of Shi'a at all times including prior to the latter part of 1998, or in various ways give vent to that hatred, did not exist. That is the foundation upon which the claim based on s 476(1)(g) and s 476(4)(b) is asserted. In my judgment it is not made out. 28 Accordingly, I consider that the application should be dismissed. I so order. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 22 August 2002 Counsel for the Applicant: Mr A. Durkin

Solicitor for the Applicant: Duncan Basheer Hannon