Raza v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The appellant arrived in Australia by boat without lawful authority on 30 December 2000. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 22 January 2001. A delegate of the Minister for Immigration and Multicultural Affairs refused his application on 16 March 2001 and on 19 March 2001 he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 24 May 2001, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. He then applied to this Court for an order of review of the Tribunal's decision. That application was heard on 20 August 2001 by Mansfield J and dismissed on 29 August 2001. The appellant now appeals against that decision. The Tribunal's Findings 2 The appellant said he was a national of Afghanistan and would be persecuted if returned to that country because he is of Hazara ethnicity and Shi'a religion. The Tribunal identified as central to its decision in the case the question whether or not the appellant was, as he claimed, an Afghan national. The Tribunal member said: "If I cannot be satisfied that the applicant is an Afghan national, I cannot be satisfied that he has a well-founded fear of persecution in Afghanistan." The Tribunal accepted that the appellant is of Hazara ethnicity and Shi'a religion. It found, however, that the independent evidence indicated that these factors were not determinative of whether he was a national of Afghanistan. In the Tribunal's view the appellant's evidence concerning matters to do with Afghanistan was "extremely problematic". He was said to be vague and unconvincing in relation to a number of aspects of his evidence and to have given evidence that was inconsistent with independent evidence before the Tribunal. Moreover, he was said to be unaware of matters which the Tribunal considered would be known to him if he were from Afghanistan. The Tribunal said: "Overall, I consider the applicant to be an unsatisfactory witness and I do not find his evidence credible." 3 The Tribunal then referred to what it described as a number of examples of the unsatisfactory nature of the appellant's evidence. He claimed he was from the Day Chupan district in Zabol province and had lived all his life there until his departure for Australia. But when asked to name districts around that area he named other places which not only are not in the same general area, but not even in the same province. He was unable to name any of the localities in the immediate vicinity of Day Chupan. His knowledge of the geography of his area was said to be unsatisfactory in a number of other ways. 4 When asked how he had left Afghanistan the appellant was said to have recited a list of locations in what appeared to be a rehearsed fashion and to have been unable to provide any satisfactory explanation for his travel from Day Chupan to places such as Sang-e Masha which is to the north of Day Chupan and therefore not a logical route to take to go to Kandahar which is to the south. The appellant told the Tribunal that the route was the smuggler's idea but the Tribunal did not consider this explanation satisfactorily explained why the route he designated had been chosen rather than a more direct route. 5 The Tribunal also referred to the appellant's complete unfamiliarity with the Persian calendar which is in use in Afghanistan. He was not only unaware of the years of the calendar but also of the names of the months. The Tribunal rejected the appellant's explanation that the Afghan calendar was not used in the area in which he lived. It also referred to his inability accurately to describe an Afghan identity document which he said he had had for some twenty years. In the Tribunal's view had he actually had such a document he would have been able to provide a description of it that more closely resembled that provided in the independent evidence. 6 Other problems with his evidence referred to by the Tribunal included his story to the delegate that he had harvested wheat every year including the year he left Afghanistan. The Tribunal referred to the delegate's observation about the drought that was then, and is still, afflicting Afghanistan. The appellant consulted with his adviser then told the delegate that his harvest had been slightly reduced because of the drought. At the hearing before the Tribunal he had claimed there was no drought in his area as it is mountainous and there is a lot of snow. Nevertheless the Tribunal accepted independent evidence before it which indicated that virtually all of Zabol province including that part in which Day Chupan is located is either severely or extremely severely drought affected. The Tribunal regarded it as "inherently implausible" that the appellant would have been able to harvest a considerable amount of wheat in 2000. His evidence, particularly when considered in conjunction with his ignorance of the geographical area strongly suggested that he had not lived in Zabol province. 7 His evidence concerning what led to his departure from Afghanistan was also said to be unsatisfactory. According to the appellant the Taliban had been in control of his area for some six years. Nevertheless he told the Tribunal that he had managed to avoid arrest and assault and conscription by the Taliban because they had left his area, which was an Hazara area, alone until after Mazar-e Sharif fell. The Tribunal regarded his evidence in this respect as internally inconsistent. Mazar-e Sharif had fallen to the Taliban initially in 1997 and finally in 1998. The appellant, however, claimed to have remained living in his own area until late 2000. Although he told the Tribunal that he used to hide when the Taliban came, the Tribunal did not find his evidence on this point persuasive. 8 The Tribunal characterised the appellant's evidence about arrangements for his departure from Afghanistan as "extremely vague". He had given inconsistent evidence in relation to his ability to afford the $4,000 fee to the smuggler. The Tribunal said: "Considered in isolation, each of the problems with the applicant's evidence might not be determinative of the lack of credibility of his claims. However, when the overall unsatisfactory nature of the applicant's evidence is considered, I am led to conclude that he has fabricated his claim to be from Afghanistan in an attempt to create for himself the profile of a refugee." The Tribunal could not be satisfied that he had ever lived in Zabol province as claimed. It could not be satisfied that he had ever lived in Afghanistan. Although there was insufficient evidence before the Tribunal to allow it to determine his nationality, it was unable to be satisfied that he was a national of Afghanistan. 9 A linguistic analysis had been obtained by the Department of Immigration and Multicultural Affairs. This indicated that the appellant's language was consistent with him originating from Central Afghanistan. On this point the Tribunal said: "However, I do not consider the linguistic analysis to be conclusive of the applicant's place of origin. Furthermore, I do not consider that this report outweighs all of the other significant problems with the applicant's evidence. In the circumstances, I cannot accept this report as constituting evidence that the applicant is a national of Afghanistan. As I cannot be satisfied that the applicant is a national of Afghanistan, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason in that country." The Proceedings at First Instance 10 Following the decision of the Tribunal the appellant lodged an application for an order of review of the Tribunal's decision in this Court. The application was obviously drawn without legal advice and disclosed no grounds of review falling within the grounds permitted under s 476 of the Migration Act 1958 (Cth) as it then stood. 11 In his reasons for decision the learned primary judge summarised the Tribunal's reasons. He observed that the Court is not entitled to review decisions of the Tribunal on the merits. He referred to submissions which the appellant put to the Court, including a written submission, made with the assistance of a friend, which repeated claims made in the Tribunal and added three points endeavouring to confront and explain the Tribunal's conclusion as to his credit. He claimed that he was confused when speaking to the Tribunal and that he felt under pressure at the Tribunal hearing and therefore had trouble recollecting events and locations. He complained that the Tribunal had not invited him to add additional information in support of his claims and that he would then have explained that he had a "tattoo" or inoculation scar which is peculiar to Afghans. He also claimed that the Tribunal had not had regard to the manner of his speaking and that his accent and vocabulary indicated that he was from Afghanistan. 12 In his Honour's view these matters did not demonstrate any reviewable error on the part of the Tribunal. The approach of the Tribunal to assessing whether the appellant was from the area of Afghanistan as he claimed and whether he feared persecution from the Taliban in that area by reason of his ethnicity and religion, was open to the Tribunal on the material. It was based on rational grounds and arrived at after consideration of matters which were logically probative on the issue of the appellant's credibility. 13 His Honour did refer to the Tribunal's observations concerning the linguistic analysis. He commented that the expression of the Tribunal that it did not accept the report "as constituting evidence that the applicant is a national of Afghanistan" was an unhappy one. The report was plainly evidence to that effect. His Honour, however, saw the Tribunal in saying this as saying no more than it had weighed the evidence provided by the linguistic analysis report together with other evidence to which it had referred in its reasons in deciding that it was not satisfied that the applicant is a national of Afghanistan. It was not a case of attributing to the linguistic analysis no weight. The sentence preceding that complained of showed, in his Honour's view, that the Tribunal was properly weighing that evidence in reaching its decision. In the event the application for review was dismissed. Grounds of Appeal 14 The Notice of Appeal filed against his Honour's decision on 21 September 2001 discloses no viable grounds. The stated grounds are: "3. I am a Shia Hazara from Afghanistan. My life was and still is in danger from the TALIBANS. TALIBAN were sending us hazaras to their front line which I had managed to avoid by hiding in mountains. 4. I have a wife, a very old mother and three children. Could you please grant me leave to appeal to the Full Court as I cannot possibly return to Afghanistan." 15 The appellant has had the benefit of pro bono representation in the conduct of his appeal to this Court. An amended notice of appeal has been lodged and the grounds set out in that notice are in the following terms: "1. The trial Judge erred by failing to hold that RRT did not engage in the reasonable speculation required of it in relation to its finding that the Appellant was not an Afghan national. 2. The trial Judge erred by failing to hold that the RRT erred so as to give rise to a ground of review under section 476(1)(b), (c) and/or (e) of the Migration Act 1958: (a) by determining the application for refugee status solely by reference to whether the Appellant was an Afghan national without determining whether the Appellant would be returned to Afghanistan and/or could be returned to a third country without persecution for a Convention reason; (b) by not disposing of all the relevant issues, merely by disbelieving the Appellant's claim of nationality; and/or (c) by failing to turn its mind to the question whether the Appellant was able to obtain effective protection in any other country even if the RRT did not accept his claim to be an Afghan national; and/or (d) by failing to determine the Appellant's nationality or country of habitual residence. 3. The trial Judge erred by failing to hold that the RRT erred when it concluded that the linguistic analysis of the Appellant obtained by the Department did not constitute evidence that the Appellant is a national of Afghanistan." Whether the Tribunal Engaged in the Required Reasonable Speculation 16 It was submitted for the appellant that the Tribunal failed to consider that it may have been wrong in its finding that the appellant was not an Afghan national. It was submitted that a fair reading of the Tribunal's reasons allowed the conclusion that it had some real doubt that its finding on this question of fact were correct. This was said to be evident from the following matters: