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.