consideration of the tribunal's reasons
8 The Tribunal described the applicant as having given inherently unconvincing evidence in relation to his education. He told the Tribunal that two of his brothers had commenced schooling at the age of six and had completed a number of years of education, but that he did not go to school until he was aged 14 or 15 (and then only for short periods each day to a mosque for Koran education) simply because he had not wanted to. The applicant maintains that that is not inherently unconvincing, but quite logical. He says he was always reluctant to go to school, and so his father encouraged him to work (as he did) from a young age.
9 It is not apparent to me why the Tribunal regarded the applicant's evidence in that respect as inherently unconvincing. In W 148/OOA v Minister for Immigration & Multicultural Affairs (2002) 185 ALR 703, [2001] FCA 679, Tamberlin and R D Nicholson JJ at [67] said obiter:
"Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be "implausible" or "highly unusual" does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant."
I respectfully share those views. They would seem to apply with equal force to the observations of the Tribunal now under consideration, although of course the Tribunal does not fall into reviewable error by failing to comply with s 430 of the Act: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1.
10 In the same section of its reasons, the Tribunal noted that the applicant claimed illiteracy as the reason why he could not answer a question about his passport, and that he then gave inconsistent evidence about how he had known that the passport had been in his own name. It said that it did not accept the applicant is as uneducated as he has claimed, nor did it accept that he is illiterate. Its conclusion in that regard is dependent upon its view as to the reliability of his evidence about his education.
11 The inconsistency to which the Tribunal refers appears in a passage in the Tribunal's recital of the applicant's evidence in the following terms:
"In response to being questioned about whether his own name had been on the passport he used to leave Pakistan, the applicant replied that he was illiterate and that he guessed that the smuggler had written his name in it. He then said that the smuggler told him that the passport was in his name."
Those answers are not inconsistent, but complementary. The Tribunal's recital of the course of the hearing does not indicate how the applicant had not answered a question about his passport. He appears from that recital to have done so. In his "affidavit", that is his statement filed in support of his application to the Court, the applicant explains that the smuggler asked his name to write it later in the passport, so that when he later received the passport, he had no reason to think that it was not in his own name, although he could not read it. He claims to have responded accordingly to the Tribunal. I take that "affidavit" as a form of submission about the Tribunal's criticism of his evidence about his passport. I accept the applicant's submissions in that regard. The respondent did not point to any material which warranted the Tribunal's finding of inconsistency in his evidence on the topic, nor any evidence from which it could then rationally infer that the applicant was not illiterate as he claimed. It was not suggested that his explanation for how his name came to be on the passport, or how he came to know or understand that his name was on the passport, was inconsistent with other evidence or otherwise had characteristics which rendered it not credible.
12 The second general reason that the applicant's evidence attracted criticism from the Tribunal was his "impersonal and evasive evidence" about the impact of the Taliban on his life. The Tribunal described that evidence in forceful terms in the following passage:
"The applicant gave impersonal and evasive evidence about the impact of the Taliban on his life at the hearing. He said that the Taliban told everyone in his area that they were infidels and that they had to pray with open hands. The Taliban also sent everyone to fight. In an attempt to obtain unrehearsed and personal evidence from the applicant, he was questioned about how he knew the Taliban had been sending people to fight in his area. Initially, he would not answer the question. Upon repetition of the question, he provided the evasive response that the Taliban sent people to fight Massoud. As he had mentioned Massoud he was given an opportunity to talk about Massoud. His evidence about Massoud, the former leading commander of the Northern Alliance, was scant and cliched. His claim that Massoud had visited the Jaghori district, was inherently unconvincing and clearly concocted to create a nexus between a well-known Afghan political and military figure and the applicant's alleged place of residence in Afghanistan."
13 The "evasive response" following the applicant first apparently refusing to answer the question is recorded by the Tribunal in the following passage:
"The applicant was asked what he knew about the Taliban taking Shi'as away to fight. He responded that he would answer questions if they were asked of him. When the question was repeated, he responded that the Taliban took everyone and sent them to fight. He was asked to confirm that they took everyone, at which point he qualified his answer by saying that the Taliban only took the boys. He was asked what else he knew about the Taliban taking Shi'as away to fight. He responded that he knew that the Taliban wanted them to fight Massoud. In response to being asked what he knew of Massoud, he said that Massoud was a Tajik commander who fought against Taliban commanders. When asked to identify Massoud's home area in Afghanistan, he responded that he had forgotten it. He then said that Massoud was a good man and that he had been to Jaghori. When asked how many months or years ago Massoud had been to Jaghori, he responded that he had not known that he would be asked such questions at the Tribunal hearing. He then said that he did not know when Massoud had been in Jaghori."
14 The inference that the Tribunal drew from that evidence is again hard to understand. It is true that his evidence about Massoud was scant. I do not understand the reference to it being "cliched". The Tribunal does not explain why that is so. The Tribunal does not explain why his claim that Massoud had visited the Jaghori District was "inherently unconvincing and clearly concocted" to create a nexus between the applicant's home area and Massoud. He did not volunteer that information but responded to questions of the Tribunal. The applicant's comments in submission (again not evidence) in his "affidavit" are that Massoud was a Tajik commander in a different province of Afghanistan, about whom he had heard. He and other Hazara people think he is a good person because he fights the Taliban. He never claimed to be a political commentator on Afghan politics or to know the kind of details requested. He had heard from others about Massoud's visit to Jaghori. As comments upon the Tribunal's reasoning, I accept that nothing is disclosed in the Tribunal's decision which could indicate why the Tribunal might have expected the applicant to have a greater knowledge of Massoud or of his visit to Jaghori than the applicant provided. There is nothing in the independent country information quoted by the Tribunal which could give rise to any such expectation. As the record of the hearing as noted by the Tribunal indicates, the applicant's answer to the question about what else he knew of the Taliban taking Shi'as away to fight was that he knew the Taliban wanted them to fight Massoud. That is a responsive answer. It is not correct to describe it as an "evasive response" by attributing that answer to a different question, namely how he knew the Taliban had been taking people to fight in his area.
15 The third aspect of the applicant's evidence to which the Tribunal referred concerned his claim that the Taliban had sent Hazara men to the front line. It was described as "implausible in light of the nature of the military conflict in Afghanistan." The basis was identified as independent country evidence that it is unlikely that the Taliban would use Hazara soldiers on the front line, and that the Taliban used trained soldiers of whom a significant number are recruited from Pakistan. The Tribunal said:
"I accept this evidence and note that I have been unable to find authoritative evidence to support the applicant's assertion that Hazaras had been used as 'gun fodder' on the front lines in Afghanistan; nor authoritative evidence that the Taliban has employed untrained soldiers at the front lines."
16 The applicant's response in his affidavit is simply to describe the Tribunal's views as being other than in accordance with reality. He refers to the forced conscription of civilian Afghans, particularly Hazaras, to the war front. He refers to a number of his friends who have been given visas by the respondent or through the Tribunal on that very basis.
17 In fact, such of the independent country information as related specifically to the position of Hazaras in Afghanistan consistently points to Hazaras being targeted by the Taliban for expulsion or harassment and mistreatment. It refers to numerous human rights violations committed by the Taliban particularly against the Hazaras. I have reviewed all of the independent country information apparently before the Tribunal as being the material submitted to the Tribunal by the Secretary of the Department of Immigration & Multicultural Affairs. The picture is consistent.
18 More importantly, the Tribunal's description of Dr Maley's evidence that it is "unlikely" that the Taliban would use Hazara soldiers on the front lines is unfairly selective. That information was obtained from a recorded conversation which took place in an information seminar for refugee status determination authorities in Australia on 25 February 2000. Dr Maley was one of three participants. It concerned particularly refugees claiming to be from Iraq and Afghanistan. Dr Maley was asked specifically for information about the Hazara in Kabul. He referred to the ideological disposition of the Taliban as being inimicable to the position of the Hazara Shi'a people. He referred also, in response to another question, as follows:
"Amongst the boat people there a large number of people from Ghazni who claim to be subject to forced military conscription, people who are Hazaras. It is certainly plausible that they would come from Ghazni, as Ghazni has a large Hazara population. It is unlikely they would be used as front line soldiers in combat against other groups because their reliability would have to be suspect under the circumstances; on the other hand it is quite likely that they would be forced to undertake menial tasks as part of military operations.
They were alluding to the fact that they were used as 'fodder'?
… Land mine clearance? That is perfectly plausible. … The aim of military mine clearing is simply to breach a path through which you can move the bulk of your force and you are prepared to accept higher level casualties and if you are putting Hazaras in to walk through the minefield and blow up as many mines as possible, they [the Taliban] would see that as killing two birds with the one stone. Getting rid of heretics and clearing the land for their forces."
In response to the next question, Dr Maley said that there were so many Hazara single male claimants between 16 and 45 years of age because it is possible for the family to liquidate their assets and obtain enough money to get one person out through a smuggling network, in the expectation that that member would then sponsor other family members to re-join them at some point in time.
19 Clearly, the Tribunal's use of Dr Maley as support for the proposition that the Taliban would not use Hazara soldiers at the front line is selective. It takes that remark of Dr Maley out of context. One need only read the whole answer to see that. It is hard to understand how the Tribunal could use one part of Dr Maley's answer at that seminar out of context and incomplete, to support a description of the applicant's claims as implausible, but at the same time, in relation to the same answer, regard it as not "authoritative evidence" to support the applicant's claim that Hazaras have been used as gun fodder on the front lines in Afghanistan. That is particularly so having regard to the Tribunal having quoted the relevant part of Dr Maley's material in its recital of the independent country information.
20 The Tribunal's next reason for rejecting the applicant's evidence about his personal exposure to the Taliban was that it was "inconsistent" and "inherently unconvincing". It criticises the applicant for being unable to recall whether the Taliban had visited his home on two, three or four occasions. It suggests he had difficulty in identifying the language in which they communicated, and then gave unconvincing evidence about having spoken to them in Dari and about having replied to his father in Pashtu.
21 In fact, in the Tribunal's recital of his evidence at the hearing, he was asked whether he had ever spoken to a Talib. He said they came to his father's tea house. He then said that he had talked to them on one occasion to ask them to pay for food and they beat him and his father. He was asked what language they had spoken and he said they had spoken Pashtu. He was asked how he had understood them, given he did not speak Pashtu, and said that his father spoke Pashtu and that the Taliban had spoken to his father.
22 The Tribunal does not say why the applicant's answers about his exposure to the Taliban are "inherently unconvincing" or are "inconsistent". His explanation that he had spoken to his father in Dari, and that his father had communicated in Pashtu does not of itself present as unconvincing. The remarks of Tamberlin and R D Nicholson JJ in W148/OOA again seem apt to apply to this part of the Tribunal's decision.
23 Next, the Tribunal addressed the evidence of the independent witness presented by the applicant. His written statement is quoted. It relevantly reads:
" I know [the applicant]. We lived in the same village and the same area but house distance 20 to 30 minutes. I saw him in his father hotel before six months on Saturday before I leaving my country. He was washing the dishes. I saw him in his father hotel and restaurant last time with his father in Bazaar Utqol."
If accepted, that evidence provided confirmation of the applicant's claims as to his Afghani origins. The Tribunal found that the independent witness was not a credible witness for two reasons. One was his description of geography compared to that of the applicant. The other was his oral evidence as to how he had met the applicant, compared to his statement. It was said to be inconsistent with that statement and "inherently unconvincing". It also suggested that his evidence about when the Taliban took over the Jaghori District was "vague and inherently unconvincing", suggesting that that witness had not been living in the Jaghori District at the time.
24 The Tribunal explained that that witness in his statement had said that he had come from the same village as the applicant, but at the hearing that he travelled north east some 20 to 30 minutes from his village of Gardo to Utqol Bazaar where he had met the applicant. It is a mis-statement in substance to attribute to that witness the claim in his statement that he said he came from the same village as the applicant. Although the word "same village" is used, it is used together with the reference to the same area and a house distance of 20 to 30 minutes. It does not give the picture which the Tribunal ascribed to that statement, as living in the same sub-area of eight or so houses to which the applicant referred. The applicant points out that his evidence was consistent with the evidence of the witness that they are from the same area, with a 20 to 30 minute walking distance apart. The Tribunal also remarked upon an irregularity or inconsistency in that the witness' village was Gardo and that the Tribunal identified that as being north of Jaghori, whereas the Utqol Bazaar and the applicant's town was south-east of Jaghori, so that he could not have walked north-east 20 or 30 minutes from his village of Gardo to reach the Utqol Bazaar, as he said. That apparent incongruity does not appear to have been put to either the applicant or to the witness. In fact the Tribunal has recorded the witness as saying "that his village of Gardo was part of the village of Utqol, and that he would travel north-east 20 or 30 minutes to reach Utqol Bazaar". It may be that there are two villages of Gardo. It could of course be a significant matter if the witness claimed to live close to the applicant when he lived well remote from the applicant. Given the description of living in a "village of Gardo which was part of the village of Utqol", and the Tribunal's understanding of the location of Gardo as well remote from Utqol, the Tribunal might well have invited comment on its concern.
25 The Tribunal also described the witness' evidence of his meeting with the applicant in Utqol Bazaar as "inconsistent with his written statement and inherently unconvincing". Its reasons for that are firstly that the witness was unable to describe the interior of the tea house, despite having asserted in writing that he had seen the applicant washing dishes inside the tea house, and when that was put to him that he responded "unconvincingly" that he had seen the applicant washing dishes outside the tea house.
26 As far as it goes, that is an accurate transcription of what is recorded by the Tribunal in that part of the conversation. The witness sent to the Court on 10 January 2002 a letter about the Tribunal's reasons. I have treated it as part of the applicant's submission. The witness says that he said he saw the applicant inside the tea house collecting dishes, and that he then brought them outside the tea house to wash them. That is why he described having seen the applicant inside the tea house and described him as having washed dishes outside the tea house. In this instance, that submission is capable of explaining the evidence of the witness that he could not describe the inside of the tea house, and had not been inside it. But, in my view, it was open to the Tribunal to have taken the view that the witness' statement did refer to having seen the applicant washing dishes in the tea house, and so to find that he had somewhat altered his story. That may have been a strict approach to evidence provided in a handwritten statement from an inmate of the Woomera Immigration Reception and Processing Centre, particularly when it is not a detailed statement and was written in less than fluent English. However, the Tribunal's approach was one which was open to it.
27 The Tribunal also had a language analysis conducted of a recording of an interview with the applicant. The "expert opinion" was that the speech on the tape is Dari, and that the person speaking has probably his language background in Afghanistan. The "Explanation" section of that report referred to the applicant as having a "slight Pakistani accent" and that his dialect "reminds mostly the one spoken in Quetta: Baluchistan". The Tribunal attributed no evidentiary weight to that report, in the absence of evidence of the experience and qualifications of the author, and its contents.
28 The Tribunal concluded:
"In light of my finding that the applicant was not a truthful witness I do not accept that he is an Afghan national nor that he has ever resided in that country. It follows that I reject his claim to fear being persecuted by the Taliban in Afghanistan for reasons of his ethnicity and religion. Consequently, I find that he does not have a well-founded fear of being persecuted by the Taliban in Afghanistan for a Convention reason."
29 It is apparent that I consider that the Tribunal has taken an uncompromising approach to its assessment of the reliability of the applicant's claims. The Tribunal said that it expressly had regard to the comments of Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at 577-8 to the following effect:
"… 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 life itself."
Those views are also expressed in Hathaway "The Law of Refugee Status", Butterworths Canada, 1991 at 84-86. The learned author states (omitting footnotes);
"First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously in Chapter 2.
Second, it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution. Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered sufficient to counter the presumption that the sworn testimony of the applicant is to be accepted as true.
… Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant's need for protection:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. "Lies do not prove the converse." Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.
Given the objective focus of the Convention definition, the purpose of eliciting evidence from the claimant herself is not to ascertain whether she harbours a subjective fear of return. Rather, it is to establish how circumstances in the homeland impact on her own security, and why she feels compelled to seek protection abroad."
Those remarks have been cited with approval by Judges of the Court from time to time: see per Lee J in Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773. It is hard to resist the conclusion that the Tribunal in this instance may have overlooked such considerations. However, ultimately, the assessment of the credit of an applicant for a protection visa is essentially a function of the Tribunal. An apparently harsh or uncompromising approach to that task on its part does not of itself amount to a reason to set aside its decision under s 39B of the Judiciary Act.