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[2002] FCAFC 9
Federal Court of Australia (Full Court)
2002-01-01
Mansfield J, Gyles JJ
Original judgment source is linked above.
THE COURT: 1 This is an appeal from the decision of Mansfield J on 29 August 2001, dismissing an application for review of the decision of the Refugee Review Tribunal ("the Tribunal") to confirm the decision of the delegate of the respondent Minister refusing to grant the appellant, Salam Jan, a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). The proceeding continues to be governed by the Act as it stood prior to the 1991 amendments. 2 The appellant claims to be Sunni Muslim of Pashtu ethnicity, speaking Pashtu, having lived in Afghanistan all his life. He claimed to have left Afghanistan because of persecution by the Taliban and to fear that if he returned he would again suffer persecution and, indeed, would be killed. The appellant gave an account of his life and his reasons for leaving Afghanistan on various occasions, both in interviews and by the provision of material on his behalf. He also appeared before the Tribunal. 3 Three analyses of the applicant's recorded spoken language were obtained from experts based in Sweden. The first was dated 7 April 2001 and was provided to the appellant for comment. A reply was provided on behalf of the appellant, together with a submission from the appellant's lawyer, prior to the decision by the delegate of the Minister on 30 April 2001. On 1 May 2001, an application for review of the delegate's decision was made to the Tribunal. On 4 June 2001 the appellant was provided with a second language analysis, dated 8 May 2001, and a third language analysis dated 14 May 2001. On 12 June 2001 the appellant's lawyer provided a witness submission to the Tribunal which dealt only with the first language analysis. The Tribunal hearing was held on 20 June 2001. The appellant was not represented at that hearing.
The Tribunal decision 4 The reasons for decision of the Tribunal set out a summary of the various statements made by or on behalf of the appellant, summarise the three reports from the linguistic experts, give a detailed account of the discussion which occurred between the appellant and the Tribunal at the hearing and summarise what was called "independent evidence" as to the situation in Afghanistan and its history. Having done so, the Tribunal member said the following: "I have carefully considered the claims and evidence as presented by the applicant and as detailed in the independent evidence. I accept that he is Pashtoon and that he speaks Pashtu, that he is illiterate and somewhat ignorant of matters. Apart from these matters however I do not accept any of his claims as being true and consider that he was not a truthful nor a credible witness. I consider that he is from Pakistan and that he has fabricated his claims relating to Afghanistan." 5 The Tribunal then set out those matters which particularly influenced the decision, under three headings: (1) The linguistic evidence; (2) The applicant's knowledge of Afghanistan; (3) The first interview compared to later claims. The conclusion was: "Overall I find that the applicant was not a truthful or credible witness. I find that he is not from Afghanistan, I find that he is from Pakistan. He has made no claims against that country and there is nothing in the information before me to indicate that he would have any such claims."
Proceedings below 6 The application for review by the Court was filed by the appellant in person and it does not disclose any ground of review available pursuant to s 476 of the Act as it then stood, but, rather, repeated, in short form, his claims, as did an affidavit sworn by him at the same time. At the hearing before Mansfield J the appellant was unrepresented and there was no amendment of the application. The reasons for judgment show that the primary judge considered for himself the reasons of the Tribunal, so far as he was able in the absence of any ground of review being propounded, and found no error. Judgment was given on 29 August 2001, dismissing the application and ordering the applicant to pay the respondent's costs.
Appeal 7 On 19 September 2001 the appellant filed a notice of appeal in person and no grounds of appeal properly so called were included. 8 Prior to the appeal, solicitors were retained to represent the appellant and counsel appeared on his behalf on the appeal. On the appeal, with the consent of the respondent, leave was granted to amend the notice of appeal to include the following ground: "Ground 1: That the learned primary Judge erred in failing to find that the Tribunal fell into jurisdictional error in failing to take into account relevant considerations and taking into account irrelevant considerations when relying upon the first language analysis dated 7 April 2001 to find that the Appellant was from Pakistan." The particulars of that ground were as follows: "1. The Tribunal failed to consider the basis of each of the analysts claimed expertise and qualifications. 2. The Tribunal failed to examine the basis of the opinion, the methodology used, the contrary opinions and the evidence presented by the Appellant relevant to language analysis. 3. The Tribunal failed to objectively evaluate the language analysis and relied upon mere speculation to find that the first analysis was correct and the Appellant was from Pakistan. 4. The Tribunal did not examine the basis of the second and third analysis' reports and their opinion that the Appellant probably had Afghanistan as his language background." 9 That ground was not put to nor considered by the primary judge. The result is that, in effect, a Full Court of three judges sits to hear what amounts to a de novo application for review of the Tribunal decision, rather than considering whether the primary judge fell into error. 10 In both written and oral submissions, counsel for the appellant has subjected each of the linguistic analyses and the manner in which the Tribunal dealt with them to detailed criticism including issues as to qualifications of the experts and the method of engagement of them by analogy with the use of expert evidence in the Courts. It was put that the Tribunal did not consider the defects of the reports and of the experts adequately or at all, and misused the reports. It was submitted that the manner in which the Tribunal considered and used the linguistic analyses was both a critical plank in the reasoning of the Tribunal towards its adverse conclusion and also had influenced the Tribunal in its unfavourable assessment of the appellant in other respects because it was aware of the analyses prior to seeing him. 11 Counsel for the respondent draws attention to the fact that the Tribunal was appropriately guarded in its use of the linguistic evidence, as is borne out by the following passages: "The linguistic evidence is not uniform in opinion. I am prepared to give linguistic evidence significant weight however would be reluctant to base a decision solely on that evidence. I consider that linguistic evidence can indicate a certain line of questioning and is something that should be put to an applicant and discussed with them." and: "Whilst I considered the use of linguistic evidence is not decisive though is uniform in saying that the Pashtu dialect spoken by the applicant indicates that he has been out of the country for a long time, one report states with considerable certainty that he speaks the dialect which is from Baluchistan in Pakistan. When that evidence is considered in the context of other findings (as detailed above) I consider it is critical evidence, and supports the view that the first analysis is correct and the applicant is in fact from Pakistan and not Afghanistan." It was pointed out that the linguistic evidence was only one aspect of the matter. 12 It was submitted that the ground taken and the criticisms made in support of it go to the merits of the Tribunal decision rather than amounting to any form of jurisdictional error. 13 It was submitted that failure to properly consider material submitted is not a ground of review (Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 and Minister for Immigration & Multicultural Affairs v Tedella [2001] FCA 832).
decision 14 The Tribunal did not believe the appellant. It explained in some detail why it did not believe the appellant. The linguistic analyses were part of the material before the Tribunal for its consideration. They were provided to the appellant for comment. The Tribunal had the task of assessing the material before it and is not, of course, bound by the rules of evidence. Evaluation of the linguistic analyses was entirely a matter for the Tribunal. It is not part of the court's role to review the facts found by the Tribunal. It is suggested that the Tribunal did not, in truth, consider the analyses, as the manner in which they were dealt with was flawed in that they were not critically examined. In our opinion, the ground taken and the particulars of it are misconceived. Even if (contrary to the submissions of counsel for the respondent) this is a ground of challenge, the Tribunal plainly did consider the analyses. Assessment of the qualifications of the experts, the effect of the analyses and the way in which they relate to other material before the Tribunal is at the heart of deciding the merits of the case. No error within s 476 of the Act is disclosed. The appeal must be dismissed. The appellant is to pay the costs of the respondent. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Merkel and Gyles.
Solicitor for the Applicant: Jeremy Moore & Associates
Jan
Minister for Immigration & Multicultural Affairs