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[2002] FCA 985
Federal Court of Australia
2002-08-21
Mansfield J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for an order declaring a decision of the Refugee Review Tribunal (the Tribunal) given on 28 November 2001 to be null and void. 2 The Tribunal affirmed a decision of a delegate of the respondent given on 26 June 2001 refusing to grant the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 4 May 2001, soon after his arrival in Australia on 11 April 2001. 3 To be eligible to be granted the visa, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). That is a criterion for the grant of a protection visa specified in s 36(2) of the Act. If the delegate of the respondent, and on review the Tribunal, was not satisfied that the criterion was met, s 65(1) of the Act required the application to be refused. In practical terms, in the present matter, the satisfaction or otherwise of the Tribunal and of the delegate as to the existence of that criterion depended upon whether the delegate of the respondent, and on review the Tribunal, was satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention, namely a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
the applicant's claims 4 The applicant claimed to have a well-founded fear of being persecuted for reasons of his ethnicity. He claimed that he is a 23 year old man from Afghanistan, married with a daughter, and that both his wife and daughter remained in Afghanistan. He claimed to have been born in the sub-village of Gharibra, in the village of Seqol in the Jaghori district of the Ghazni province of Afghanistan. He claimed to be of Hazara ethnicity and of the Shi'a Muslim religion. 5 The Tribunal conducted a hearing at which the applicant attended, with the assistance of his migration agent, on 2 October 2001. He told the Tribunal that he is uneducated. He worked as a shepherd for three years until about December 2000 when he left Afghanistan. He left Afghanistan on 22 December 2000. He claimed that he fled Afghanistan because he feared persecution by the Taliban on account of his Hazara ethnicity. 6 He told the Tribunal that from about 1999 the Taliban were conscripting young men in the Jaghori district of the Ghazni province to fight at the front, and in the case of Hazara young males, to clear mine fields. He feared being taken by the Taliban in that way and hid from time to time when they came into his area looking for young men. He said that in about October 2000 the Taliban came again to his house, and arrested his father. His father was accused of hiding weapons. His father was taken away, but subsequently released. It is apparent from the Tribunal's questioning of the applicant at the hearing that it was suspicious of the genuineness of his claim to have come from Afghanistan, as its questions were directed in part at least to testing his knowledge of the local geography in the Jaghori district, of his knowledge of shepherding and of the effects of a drought in his claimed local region, and of his knowledge of Hazara customs in the region. It is not presently necessary to refer to the details of that questioning.
the tribunal's findings 7 After referring to the material before it, the Tribunal accepted that the applicant is an ethnic Hazara. However, it did not accept that he is from Afghanistan as he claims. It found the applicant generally not to be a credible witness. It did so, having reminded itself of the sensitivity which should be accorded to those making claims to refugee status because of the difficulties often faced by such persons, and the desirability of giving the benefit of the doubt to persons who are generally credible, but cannot substantiate their claims in detail. 8 The Tribunal, after allowing for cultural and educational factors, nevertheless concluded that the applicant had a significantly more limited knowledge than the Tribunal would have expected of local geography, shepherding and of Hazara customs, so as to cause it to doubt that he is from Afghanistan. It explained those views in the following passage in its reasons: "At hearing the applicant was unable to name any of the nine other sub-villages known to the Tribunal from country information as being adjacent to the village he claims to come from. When they were read out by the Tribunal he claimed that all but one was 'far away'. This is erroneous. The Tribunal is of the view that the applicant's claim that he was aware of the nine sub-villages but that they were located elsewhere, was disingenuous and an attempt to boost the appearance of his geographic knowledge. The Tribunal is also unable to accept that he would be unaware of the existence of a girl's school in his own sub-village. The applicant stated that his sub-village had only about 35 houses, therefore it seems to the Tribunal not plausible that he would miss noticing the existence of a girl's school there, especially as he was aware of another school some considerable distance away. Of particular significance, the applicant's knowledge of sheep was singularly lacking. When asked about the differences in the physical appearance of the various sheep breeds he had named, he said that they differed only in size. He said there was no difference between them in colour. However, according to information from Oklahoma State University, (downloaded from website http://www.ansi.okstate.edu/breeds/sheep), at least two of the breeds mentioned by the applicant, the Hazaragie and Shinwari vary considerably in colour. The Hazaragie are usually reddish-brown but are sometimes black or white with brown bellies. The Shinwari are white with black marks on the head and legs. Another sheep from that region, the Balkhi which he did not mention, varies in colour from black, tan, grey or their admixture. The Tribunal is unable to accept that a shepherd from that region would not be aware of such considerable differences in appearance among the sheep he tends. The Tribunal also displayed only a bare-bones knowledge of Hazara dress, and his replies to questions about his village were brief and general. The fact that he knew some local geography, was able to recite the names of some of the provinces neighbouring Ghazni, of a few of Afghanistan's neighbouring countries and of some local political and military leaders does not countervail his lack of knowledge on fundamentals of which a shepherd from his village should be aware." 9 Consequently, the Tribunal found that the applicant is not a shepherd from the area he claims to have come from. It had no evidence that the applicant came from any other part of Afghanistan, and so it positively found that he is not a national of Afghanistan. It followed that the Tribunal concluded that he did not have a well-founded fear of persecution in Afghanistan for any reason. He did not meet the criterion specified in s 36(2) of the Act in the light of those findings.
the ground of review 10 The sole ground of review concerned the Tribunal's approach to two linguistic analysis reports of the applicant's speech which were available before it. They were directly contradictory of each other. It was submitted that the Tribunal failed to consider their competing merits, and therefore failed to address particular evidence directly relevant to the applicant's nationality. That failure amounted to the Tribunal failing to exercise jurisdiction. 11 The ground of review sought to invoke jurisdictional error of the type discussed by McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf [2001] FCA 30; 180 ALR 1 at [82] where their Honours said: "What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 12 Senior counsel for the applicant contended that, if jurisdictional error of that type were made out, it would give rise to a potential entitlement to relief under s 39B of the Judiciary Act notwithstanding s 474(1) of the Act. Counsel for the respondent contended that the effect of s 474(1) of the Act, the privative clause provision, is to broaden the lawful authority of the Tribunal so that its jurisdiction is defined and confined only by the principles identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. In other words, counsel for the respondent contended that jurisdictional error of the type described by the High Court in Yusuf is no longer jurisdictional error on the part of the Tribunal. It will not be necessary to address that issue if I am not persuaded that the applicant has made out jurisdictional error of the sort for which he contends.
consideration 13 There were two language analysis reports concerning the applicant available to the Tribunal. 14 One dated 16 May 2001 was provided by Skandinavisk Sprakanalys AB which expressed an expert opinion in the following terms: "The speech on the tape is Dari. The person speaking has obviously his language background in Afghanistan." The basis of that opinion is then set out. It describes the prosody of the applicant as typical for the Ghazni Hazaragis, and says there is nothing on the recording which indicates that the applicant has his language background in any other country than Afghanistan. It claims that the analyst who performed the analysis originates from Afghanistan. 15 The use of the word "obviously" in the opinion is significant. In the range of expert opinions provided by that entity, it is the one of most certainty. The range is described as "obvious, most probable, probable or possible". 16 There was a further linguistic analysis report provided by Eqvator, Stockholm. It is dated 18 June 2001. It is quite contradictory of the earlier report. It describes that analysts's observations about the tape recording of the applicant's language and then expresses the following conclusion: "The dialect/language variant occurring in the text/tape recording may with considerable certainty be said to originate from Quetta, Pakistan." No information is provided about the origins of that linguist. 17 The conclusion also is the one of most certainty of the options used by Eqvator: the range is "considerable certainty", "most similar", "a possibility although somewhat less certain", or inability to make any unequivocal statement but with traits from certain countries and regions, and finally inability to form any particular opinion. 18 The contradictory nature of those two reports provides ample reason in the particular matter to be concerned as to the reliability of one or other of the opinions. Certain members of the Tribunal have been very cautious in placing any weight on such linguistic analyses. In other instances, certain members of the Tribunal have placed considerable weight on linguistic analyses. The fact that two so-called expert linguists (there was no evidence about the particular qualifications of either of them), identified by a coded reference only and not by name, could reach such opposite views might cause one to doubt the reliability of the process of linguistic analysis as a general tool for identifying national or recent regional origins. The two opinions are almost the equivalent of two experts looking at an object, and one describing it as black and the other as white. Of course, there are other possible explanations for such divergent views. One is that one of the so-called experts is incompetent. That possibility also, where the linguists are not identified and are not vulnerable to cross-examination, does not give much confidence in placing weight on such material. If that were the explanation, it would not be possible to know on the material generally available about linguists which of the linguists is not competent. The present circumstances also give little basis for confidence in the institutions which engage linguists and presents their views as expert and reliable. Other possibilities include a linguist making a mistake only in a particular matter, the mixing up of recordings, or the tape recordings analysed being of different interviews and the person recorded speaking differently at each interview. There may be other explanations as well. The circumstances of this matter, as they stand, make it easy to understand the approach of those members of the Tribunal who place little or no weight upon linguistic analysis reports, or at least do not do so without other material which tends to point in the same direction as the linguistic analysis report. 19 In this instance, there was no explanation why two linguistic reports were considered necessary, or the circumstances in which they came to be obtained, or indeed whether they were based upon the same recording. 20 The Tribunal said: "The Tribunal had regard to the two linguistic analyses carried out on his speech. As they are mutually contradictory and there is no indication on file as to why two were required, and the qualifications of both analysts are unspecified, the Tribunal has not drawn on either in making its overall finding. In any case, the Tribunal has not found it necessary to give weight to either in view of its other findings about the applicant's general credibility." 21 Earlier in its reasons, the Tribunal said: "The applicant states that he is a citizen of Afghanistan. One of two linguistic analyses of his accent indicates he is probably from Pakistan. The other assesses that he is indeed from the Ghazni region of Afghanistan. As the reliability of either of these analyses over the other is not apparent to the Tribunal, it has not relied on them in making its overall finding." 22 In Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 (SBAA), resolution of the appeal turned upon the Tribunal's failure to consider the significance of a linguist's opinion that the applicant for a protection visa had his language background in Afghanistan. The Full Court (Wilcox and Marshall JJ) said at [44]: "The second question concerns the Tribunal's failure to consider the significance of the linguist's opinion that the applicant 'has obviously his language background in Afghanistan'. The applicant's language background was of pivotal importance to the only real issue the Tribunal had to determine: his nationality of origin. The Tribunal had before it a report about that matter obtained by the Department from an independent person with apparent expert qualifications. The genuineness of the report was not in doubt. The Tribunal member was aware of the report, and relied on it in some respects, yet she failed to have regard to what was probably its major finding: the linguist's opinion about the applicant's linguistic background. Consistently with what was said in Yusuf, it must be concluded that the Tribunal 'did not consider the matter to be material' (Gleeson CJ). Yet it plainly was. In thinking otherwise, the Tribunal erred in law. Having regard to the significance of the linguist's opinion, the Tribunal's failure to deal with it constituted a failure to exercise its jurisdiction: see Gaudron J in Yusuf at 15 and McHugh, Gummow and Hayne JJ at paras 78 and 82." Branson J dissented. Her Honour concluded at [67] - [69] that, if the Tribunal had ignored the linguist's opinion, its failure would not amount to jurisdictional error as explained in Yusuf. 23 In this matter, the Tribunal recognised that the linguistic analyses were of significance to its consideration of the nationality or recent origins of the applicant. It expressly said that it had regard to that material. Upon the basis of the majority reasoning in SBAA, it is arguable that if it had not done so the Tribunal would have failed to exercise its jurisdiction. It was then a matter for the Tribunal to consider the weight it should attach to those pieces of evidence. In the event, it placed weight on neither. It explained why, in the passage quoted at [20] - [21] above. In my judgment, its consideration of those reports does not demonstrate jurisdictional error on its part. Unlike the Tribunal in SBAA, the Tribunal did consider what evidentiary weight to place on those reports. It addressed their competing merits. The weight it placed on those reports, or on either of them, was a matter for the Tribunal. It did not have material which, to its mind, enabled it to form any view as to which was the preferable or more probably reliable report. It explained why it reached that view. 24 Accordingly, in my judgment, the Tribunal did not fail to consider that evidence, or to address the competing merits of that evidence. I am not, therefore, persuaded that the Tribunal failed to exercise its jurisdiction in the manner contended for by senior counsel for the applicant. 25 I note that the Tribunal added, at the end of the passage quoted in [20] above, an alternative reason for giving no weight to those linguistic reports. That reason is expressed as an alternative reason for its conclusion about the applicant's nationality. It might indicate that, in the light of the Tribunal's findings about the applicant's credibility, it would not have been satisfied that he is a national of Afghanistan irrespective of the linguistic reports. If that were the only reason of the Tribunal for not giving weight to those reports, there may be some substance in the applicant's contention. The Tribunal may have elected to give no weight to evidence going to a central issue simply because it touched upon the central issue in a way different from other evidence, and it may have committed jurisdictional error in so doing. In that circumstance, there may be some analogy with the reasoning adopted by the majority in SBAA. However, because that observation of the Tribunal is but an alternative expressed by the Tribunal, introduced by the words "In any case, …", I do not think it is necessary to resolve those matters. In my judgment, for the reasons given above, the Tribunal did not fail to exercise its jurisdiction in the manner contended for. 26 I accordingly order that the application be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Solicitor for the Applicant: Jeremy Moore & Associates
SBAQ
Minister For Immigration & Multicultural & Indigenous Affairs