Hussain v Minister for Immigration & Multicultural Affairs

introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 10 January 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant arrived in Australia on 23 March 2000. On 1 June 2000 he applied for a protection visa. On 9 October 2000 a delegate of the respondent refused to grant him a protection visa. On 12 October 2000 the applicant sought review of the delegate's decision by the Refugee Review Tribunal. This matter is somewhat unusual in that both the respondent's delegate and the Tribunal disbelieved the applicant's claims to be a citizen of Afghanistan and to have lived there all his life until he came to Australia. The Tribunal did not actually find that the applicant came from Pakistan, but there was evidence, which the Tribunal accepted, to the effect that he originated from the Quetta region of Pakistan.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary were as follows: · That he was born in 1981 in the village of Shekhchagoo, Baba, Jaghouri in Afghanistan. · He is of Hazari ethnicity, speaks Hazaragi and is a Shi'a Muslim. · His father is dead, but his mother and sisters and two of his brothers are living in Afghanistan with the whereabouts of his two other brothers not known. His father was killed three years ago, but he did not know who killed him. Two of his brothers fled Afghanistan about 20 months ago. · He never attended school, was apprenticed to his brother as a tailor and worked in his brother's shop in Baba from 1991 to 1999. · When the Taliban came to his area they rounded up all the young Hazara boys to fight the opposition in Pangsher. · He was arrested by the Taliban in January 2000 and he and four other people were held for 10 days because the Taliban intended to send him and them to the front line. While in detention he was kicked and punched and warned that if he tried to escape he would be blown up by anti-personnel mines. · He was able to escape from the prison because one of his friends picked the padlock. · After he escaped he returned home, but his mother sent him to his uncle's house in Baba where he hid for about one month during which he was ill for about a week because of the torture inflicted on him by the Taliban. · His uncle decided that he (the applicant) should leave Afghanistan and made arrangements with a smuggler for his departure. · He travelled for two nights on a truck and stayed in the middle of the desert for one night. Thereafter he travelled for several more days until he arrived close to water and then travelled by boat, and sometimes by bus, for two months. · He feared that he would be killed by the Taliban if returned to Afghanistan because he is a young Hazara boy and because he is a Shi'a. 3 The Tribunal noted that the interview of the applicant by the respondent's delegate on 8 June 2000 had been taped and that the tape had been sent to a Swedish agency specialising in translations and linguistic analyses. The analyst had concluded that the applicant's dialect or language variant could (with considerable certainty) be said to originate from the Quetta region of Pakistan. The applicant disputed this. 4 The Tribunal also noted that, on arrival in Australia, the applicant had a number of documents in his possession which had later been translated. The applicant claimed that these papers probably belonged to his uncle as they were in a wallet which his uncle had given to him. There were four such documents: (a) an Afghan military service certificate dated in Kabul In 1966. This document was translated from Pushtu; (b) a hand-written diagram of places surrounding Bazar Baba and a list of names for relatives, such as grandfather and uncle. This document was translated from Dari; (c) hand-written financial calculations for the costs of hotel accommodation, tickets, food and clothing based on a rupee exchange to the dollar. This document was translated from Urdu; and (d) hand-written financial calculations for a deposit and a ticket based on a rupee exchange rate for the dollar. This document was also translated from Urdu. 5 The applicant's evidence to the Tribunal was interpreted from the Dari language. The Tribunal noted that Urdu is not used in Afghanistan. The evidence before the Tribunal was that the currency of Afghanistan is the Afghan, not the rupee. 6 The Tribunal summarised the evidence given to it by the applicant including his responses to various questions, put to him by the Tribunal, which were designed to test his knowledge about Afghanistan and in particular the area from which he claimed to have originated. 7 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below in full: FINDINGS AND REASONS It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras. 196-197 and 203- 204). However, it is necessary and appropriate that the Tribunal assess the specific claims advanced in support of an applicant's case, bearing in mind that: A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out (Selvadurai v TheMinister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347, at 348). The Tribunal is not required to accept uncritically all claims made by applicants. In Randhawa v MILGEA (1994) 52 FCR 437 Beaumont J observed (at page 451) that a liberal attitude concerning proof of persecution in the context of an application for refugee status: should not, however, lead to 'an uncritical acceptance of any and all allegations made by suppliants'. It was also stated in Chan (per McHugh J at 428) that under the 1951 Convention: "It was unlikely that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality." The Full Federal Court has ruled, in Kopalapillai vMlMA (1998) 86 FCR547, that the Tribunal must be sensitive to the special considerations that arise in the assessment of credibility issues in refugee matters. More recently in Abebe vTheCommonwealth of Australia (1999) 162 ALR 1 the High Court observed: the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not for life. (per Gummow and Hayne JJ at [191] The Tribunal has, in considering this application, been mindful of all these principles in assessing the applicant's credibility. Nevertheless, the Tribunal has come to the conclusion that the applicant is not a credible witness. The applicant has claimed that he is a national of Afghanistan. He has also claimed that he is of Hazara ethnicity, and that he is a Shi'a Muslim. The Tribunal notes the following information about Hazaras: The Hazara population, currently numbering about 1 to 1,5 million, are of unknown Central Asian, probably Mongolian, descent and have traditionally lived in their homeland of Hazarajat in central Afghanistan. Hazarajat consists of the northern pan of the Helmand valley and parts of the provinces of Ghor, Uruzgan and southern Bamian. There are also smaller Hazara communities in northern Bamian and Badakhshan. Since the middle of this century, quite a number of Hazaras have emigrated to Kabul and other major urban centres, in the first place as labourers or servants for the urban population, but since going on to get themselves educated and hold down more skilled jobs in towns and cities. Especially in large urban centres, however, the Hazara population have traditionally formed the lowest rung in the ethnic hierarchy. Both in their physical appearance and in their cultural customs, Hazaras show their Asian origins, but they speak a variant of Persian and most of them are Imami Shia Muslims. (Danish Immigration Service, Fact-finding mission to Afghanistan, 1 November-29 November 1997; published July 1998. Section 4 H1). The Hazaras, numbering some 1.2 million, have traditionally been an underprivileged minority in Afghanistan. Unlike most Afghans, who are Caucasoid in appearance, the Hazaras have Mongol features - slanted eyes, high cheek bones, and sparse beards - which are the result of intermixing between the early Indo-Iranian inhabitants of central Afghanistan and the Mongols who swept through central Asia, starting with Genghis Khan in the 13th century. (CX 33997, Guerrillas and Refugees wage War on their own Disunity, by Tym Lenderking, The Christian Science Monitor, p.2, 26 January 1987). The Tribunal is satisfied that the applicant is an Hazara. As noted by the language analyst, he speaks the Hazaragi dialect spoken by Hazaras, and he has the physical appearance of an Hazara. The Tribunal is also prepared to accept that the applicant is a Shi'a Muslim which is the faith of most Hazaras. He was able to satisfactorily describe differences in the religious practices of Sunni and Shi'a Muslims and showed familiarity with Shi'a religious leaders. The Tribunal notes that there are Hazara communities outside Afghanistan, and in particular, that there are large numbers of Hazaras living in Pakistan. The Australian Department of Foreign Affairs and Trade has provided the following advice: According to an international organisation in Islamabad, there are between 120,000 and 160,000 Hazaras currently in Pakistan. Of that number, between 80,000 to 100,000 have Pakistani nationality - most if not all having been born in Pakistan, the remaining 40,000 to 60,000 are considered to be refugees. Eighty per cent of Hazaras living in Pakistan are located in the city of Quetta, with around the remaining 20 per cent located in other areas of the province of Balochistan. There are also small communities of Hazaras scattered in the North West Frontier Province and in the city of Karachi. (DFAT Country Information Report 97/00, 10 May 2000, CX41933) The Tribunal is not satisfied that the applicant is an Hazara from Afghanistan or that he has lived in Afghanistan all his life prior to his departure for Australia as he has claimed. The Tribunal does not accept that the applicant is a national of Afghanistan for the following reasons. The applicant was unable to describe the geography of the area he claimed to come from in Afghanistan in any detail at all, either in his interview with the delegate or in his Tribunal hearing. He claimed to have visited the nearby town of Balahingar on only a few occasions even though it was only half an hour's walk away, and could not say how large it was. He professed ignorance of every place in Afghanistan apart from his own village and the village of Baba where he claimed he worked as a tailor and where his uncle lived. Even though the applicant is young and says he is uneducated, in the Tribunal's view it is reasonable to expect him to have a far more detailed knowledge of the area where he claims to have lived for 18 years. When the Tribunal asked the applicant about the history of the Hazara people in Afghanistan, the applicant responded that he knew nothing at all. When asked about recent events in Afghan history, in particular the situation after the soldiers from the former Soviet Union had withdrawn from the country, he denied that he had been born at that time. When told by the Tribunal that the Soviet forces had withdrawn in 1989 when he was eight or nine years old, the applicant continued to insist that he had not been born at that time. The Tribunal notes the following information which confirms that the Soviet forces withdrew from Afghanistan in 1989: Civil war broke out in Afghanistan in 1979 after Soviet troops invaded the country to back the communist government in power. Islamic and tribal groups opposed to the policies of the communist government and the Soviet occupation responded by mounting armed opposition. For ten years the country became a Cold War battleground, as Soviet and Afghan government troops fought against armed Islamic guerrilla fighters backed by the USA and its European allies, Pakistan, Saudi Arabia and Iran. After the Soviet withdrawal in 1989, fighting continued between government and opposition forces until the communist government finally collapsed in 1992. The fall of the government did not bring peace, however, as the loosely allied and fractious Mujahideen groups started fighting each other for control of territory and administrative institutions. Despite the formation of a coalition interim government, central political authority was weak and unstable, and Afghanistan plunged into lawlessness. (Amnesty International report, ASA/31101299.htm, 11 November 1999, CX44544) The Tribunal considers it reasonable to expect that an Hazara from Afghanistan would have known something about the history of his own people, and that he would have had at least some awareness of a significant, and relatively recent event, such as the withdrawal of Soviet troops from Afghanistan. The applicant showed a lack of familiarity with the Afghan calendar, and was unable to place any event, including the year of his birth, within the Afghan calendar even when the Tribunal attempted to assist him to do so. He refused to estimate how old he was when he attended school for two months. The Tribunal has considered carefully the responses of the applicant to questions put to him at his interview with the delegate and at his hearing with the Tribunal. The delegate has provided a detailed record of the reasons for his decision, and having reviewed the tape of the interview, the Tribunal agrees with the delegate's assessment that the applicant's knowledge of Afghanistan is limited. In coming to this conclusion the Tribunal has taken into account the letter written by the applicant explaining why he had problems answering some of the delegate's questions. On the basis of the applicant's lack of familiarity with the part of Afghanistan from which he claims to have come, his lack of knowledge of recent events in Afghan history and his inability to nominate significant national days or to fix any date within the Afghan calendar, the Tribunal finds that the applicant is not from Afghanistan and has not lived there all his life until he came to Australia. The Tribunal is strengthened in its view that the applicant has not been living in Afghanistan by the unsatisfactory account provided by the applicant of his situation in Afghanistan after the Taliban came. The applicant was unable to explain why he was working in his brother's tailor's shop in Baba if he was afraid of the Taliban finding him. At one point in the hearing he said he was in hiding in the mountains after the Taliban came, but when the Tribunal noted that he had claimed to have been working in the shop during this period, he said that the Taliban only came infrequently. He gave a detailed description of planting and harvesting wheat, but when the Tribunal suggested he would have been safer working on the farm than in the shop in the bazaar, he said that he did not know how to farm the land. When describing the place where the Taliban had kept him after he was arrested, he said that there were no other buildings near by. He later said that the guards were stationed in a small building near by. When the Tribunal asked why he had not left Afghanistan with his older brothers, the best explanation he could offer was that his mother loved him more than his brothers and wanted to keep him with her. These inconsistencies in the applicant's claims about events after the Taliban's arrival and his inability to satisfactorily explain aspects of the claims, reinforce the Tribunal's view that he was not in fact in Afghanistan at this time as he has claimed. The Tribunal does not accept that the applicant was ever in hiding from the Taliban or that he was arrested by them or that he escaped from their custody. The Tribunal finds that the applicant has fabricated the story to make a case for claiming to be a refugee. The Tribunal has considered the documents which were in the applicant's possession when he arrived in Australia. The applicant has stated that the Afghan military service record belonged to his father. The Tribunal notes that the applicant has stated that his father's name was Mir Afghan (no family name) and that the military service document is in the name of Khudai Rahim Afghan, but in view of the discrepancy between the names, the Tribunal does not accept that this document did belong to the applicant's father or that it supports the applicant's claim that he is a national of Afghanistan. The applicant claimed at the hearing that the other documents in his possession - the financial calculations written in Urdu and the diagram showing the location of villages in the area where the applicant claims to have come from which was written in Dari - must have belonged to his uncle, who may have needed them when he travelled away from home for periods of up to one month. The applicant claimed that the papers were left by his uncle in the wallet which he gave to the applicant. The Tribunal does not accept this explanation. As agreed with the applicant at the hearing, the Tribunal has reviewed the tape of his interview with the delegate, and the applicant clearly said that his uncle only travelled on business to places near by and returned the same night. There would therefore be no requirement for the applicant's uncle to make financial calculations in Urdu, which is not used in Afghanistan, about the cost of hotels and tickets and exchange rates. The applicant's possession of these documents gives the Tribunal cause to doubt his claims that he is illiterate and that he had no knowledge of the countries he travelled through on his way to Australia. The Tribunal notes that the language analysis states that the applicant's dialect/language variant may "with considerable certainty" be said to originate from Pakistan, the Quetta region. The applicant has stated that the analyst must not be familiar with the particular dialect of his area, and that the analysis is incorrect. The applicant has not, however, provided an alternative language analysis which supports his claims. The Tribunal agrees that there are issues concerning familiarity with the dialect of the area in question, and for this reason 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. Taking into account all of the above, the Tribunal finds that the applicant is not a national of Afghanistan, and that he has not lived there all his life prior to coming to Australia. The Tribunal finds that the applicant has not been persecuted in Afghanistan in the past as he has claimed. As the Tribunal has found that the applicant is not a national of Afghanistan, and is not required to return there, his claims that he will be persecuted if he returns to Afghanistan are not well-founded. The applicant has not claimed that he will be persecuted in any other country. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.