SBAZ v Minister for Immigration & Multicultural & Indigenous Affairs

The Applicant's Claims 4 The applicant claimed to have been born in 1961, and to have lived all his life in Olgho, a sub-village of Menga, in the Jaghuri District of the Ghazni Province of Afghanistan. He is of Hazara ethnicity and a Shi'a Muslim. He said he had no formal education, except in learning to read the Koran. He had worked as a farm labourer in his area, a remote mountainous area of Afghanistan, until he left Afghanistan illegally and arrived in Australia. 5 He claimed to have a well-founded fear of returning to Afghanistan by reason of the activities of the Taliban. He said the Taliban came into his local area in about 1997 or 1998, and then collected weapons from all persons in his village. As he had no weapons to declare, he was forced to pay a fine or impost towards the Taliban. In 1999, some Pashtun nomads commenced grazing their cattle in his local area. He and some others confronted them, and requested them to leave. The Pashtuns were said to have complained to the Taliban, leading to the applicant and two others being taken to the local administrative capital called Sang‑e‑Masha where they were fined. 6 The other past experience of the Taliban which he related concerned an Hazara by the name Carlos. He said in 1995 a family dispute had arisen between his family and the family of Carlos over a relationship between his cousin and the sister of Carlos. On the advent of the Taliban in his area, Carlos associated himself with the Taliban as a supporter. He claimed it gave Carlos some influence with the Taliban. It enabled Carlos to involve the Taliban in forcing his cousin's side of the family out of Afghanistan. Then in May 2000, the Taliban including Carlos again came to his village and took one of his nephews away. That nephew has not been seen since. At the same time, the Taliban sought the applicant, who was absent in the hills nearby, accusing him of having weapons and of involvement in a political group opposed to the Taliban. A message was left that the applicant should report to the Taliban. Subsequent frequent enquiries were made by the Taliban of his family as to his whereabouts, but the applicant had by then gone into hiding and subsequently fled Afghanistan. 7 He claimed to fear returning to Afghanistan because he feared the Taliban would cause severe harm to him by reason of his ethnicity, his religion and his perceived political opinion. 8 In support of his claims about his background, a witness from the Immigration Reception and Processing Centre told the Tribunal that he also was from the village of Olgho, and that he had known the applicant and his family.

The Tribunal's Reasons 9 The Tribunal had significant doubts about the reliability of the applicant's claims. That was for two reasons. The first was that the applicant when interviewed on 26 January 2001 soon after his arrival in Australia in substance did not make any of the claims which he later made at the time he applied for the protection visa, in an interview with the delegate of the respondent on 27 July 2001, at the hearing before the Tribunal on 10 December 2001 or in the submissions to the Tribunal made by his migration agent. At his arrival interview, the applicant said that he left Afghanistan because of "Taliban oppression", but made no specific claims about the Taliban. He said he left Afghanistan because his "grazing land was used by others so life was very difficult for me". He said he had had no contact with the Taliban up to the time he had left Afghanistan. Clearly that version of the applicant's past history in Afghanistan in relation to the Taliban was not consistent with the claims which he subsequently made. He was given the opportunity by the delegate of the respondent, and by the Tribunal, to explain why that version of events was so different from his subsequent claims. The applicant claimed that at his initial interview, some days after his arrival in Australia, he felt unwell due to "seasickness", and also that he was addicted to cigarettes and he may therefore have been impeded from explaining himself clearly. He also said that he was asked to give short answers at that interview, and to provide more details of his claim at a later time. The Tribunal found those explanations unpersuasive. It noted additionally the applicant later claimed that he had decided not to reveal all of his claims at that early point. 10 The second reason the Tribunal doubted his claims was that it noted a number of instances in which the applicant's evidence on aspects of his claims had varied over time. It acknowledged that some of those points were relatively minor, but formed the view that taken together they caused it to doubt the truth of the applicant's claims. Those inconsistencies included the nature of his relationship with the relative who had married the sister of Carlos, whether it was the fifth or youngest of his siblings who had fled to Pakistan to escape the Taliban, and whether he knew the region in Pakistan to which she was heading, whether his third brother was alive or (as he subsequently claimed) deceased, and the number of houses in Olgho and its walking distance from Sang-e-Masha. The Tribunal said: "Given all these changes in evidence, and the fact that his key claims were not made at the initial interview, and that the applicant did not make his detailed claims for some six months, the Tribunal is not satisfied that they represent a true account of the applicant's circumstances." The Tribunal gave little weight to the evidence of the witness who said he knew the applicant from the village of Olgho for two reasons: although the witness said he had land contiguous to that of the applicant's family, he did not know the names of some members of the applicant's family whose names the Tribunal expected him to have known, and he could not recall the name of the applicant's mother or of his wife. The Tribunal also had regard to the opportunity for the applicant and the witness to have exchanged information about the applicant's background in the Immigration Reception and Processing Centre. 11 Consequently, the Tribunal was not satisfied that the applicant was from the village of Olgho as he claimed. The Tribunal then had regard to a language analysis of the applicant's speech patterns. The linguist concluded "with considerable certainty" that the applicant's dialect/language originated from the Quetta region of Pakistan, rather than from Afghanistan. It also had regard to independent evidence concerning Hazaras that the Pakistani accent of Hazaras is greatly influenced by Urdu and English and is very different from the accent of Hazaras from Hazarajat in Afghanistan. I was told by counsel that the Ghazni Province is recognised as, or as part of, Hazarajat in Afghanistan. 12 The Tribunal concluded: "Given the Tribunal's doubts about the applicant's claims, and the analyst's strong conclusion that the applicant's origins are in Pakistan, not Afghanistan, the Tribunal is not satisfied that the applicant is a citizen of Afghanistan. It follows that the Tribunal cannot be satisfied that the applicant has a well-founded fear of persecution in that country. As he has made no claims about persecution in any other country, the Tribunal is not satisfied that he has a well-founded fear of persecution for a Convention reason."

The Grounds of Review 13 There were three general grounds of review identified in the helpful submissions of counsel, appearing pro bono publico, for the applicant. They were:

1. The Tribunal decision was infected by jurisdictional error, because it failed to take into account relevant material and disregarded matters it was required to take into account, particularly in relation to: (a) the probative value of the report of the language analyst; and (b) the numerous previous Tribunal decisions in relation to language analyses including of that particular language analyst;
2. The Tribunal failed to make a bona fide attempt to exercise its power in good faith; and
3. The Tribunal failed to address the correct question, because it failed to make a bona fide attempt to address the question of the nationality of the applicant. In addition, in the course of submissions, it was contended that the Tribunal had failed to comply with s 424A of the Act by not inviting the applicant to comment upon a piece of information to which it had regard, namely that the tape recording of the interview conducted by the delegate of the respondent with the applicant on 29 July 2001 described the applicant's relationship with his relative who was married to the sister of Carlos in a different way from that he had described it in his written statement in support of his application for a protection visa, and subsequently during the hearing before the Tribunal.

Consideration 14 Since the hearing of this matter, the Full Court has delivered reasons for decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. The majority (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting) decided that, once the Tribunal's jurisdiction is enlivened by a valid application under s 414 of the Act, the manner of exercise of its authority and powers falls within the expanded area of authority and powers brought about by s 474(1) of the Act. Section 474(1), commonly called the privative clause provision, states: "A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

In effect, the decision in NAAV has the consequence that, although the statutory and common law procedural obligations applicable to the Tribunal should be complied with (per von Doussa J at [674]), its expanded jurisdiction means that failure to comply with those obligations does not result in it exceeding its jurisdiction. Consequently, even if the Tribunal failed to comply with s 424A of the Act in the way now contended for, that would not demonstrate jurisdictional error on the part of the Tribunal to entitle the Court to exercise its powers under s 39B of the Judiciary Act to grant the relief which the applicant seeks. 15 In addition, in my view in accordance with the decision in NAAV, the Tribunal no longer commits jurisdictional error by failing to take into account relevant material, or by disregarding matters which it was required to take into account, or by failing to address the correct question. Under the Act as it stood prior to its amendment by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), effective from 2 October 2001, those matters could give rise to jurisdictional error on the part of the Tribunal: see Craig v State of South Australia (1994) 184 CLR 163, in particular at [177] - [178] and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22 where McHugh, Gummow and Hayne JJ 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 the 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. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." In my view, the effect of the decision in NAAV is that the sort of jurisdictional error referred to in Yusuf and Craig is no longer appropriately the measure of jurisdictional error on the part of the Tribunal, because s 474(1) of the Act expands the Tribunal's jurisdiction: per von Doussa J at [639]. The Tribunal no longer commits jurisdictional error by wrongly identifying the applicable law, or by wrongly applying the applicable law, or by asking itself the wrong question, or by failing to accord procedural fairness to a visa applicant, or by failing to comply with the procedural prescriptions in Pt 7 Div 4 of the Act: per Beaumont J at [91] - [104], [113] - [114], [188], [229] and [274] and per von Doussa J at [636] - [639] and [648] - [651]. Black CJ agreed generally with von Doussa J at [4], although his Honour disagreed with Beaumont and von Doussa JJ in identifying what constituted "jurisdictional facts" upon the proper construction of the Act in two of the five matters under appeal. 16 Of course, as von Doussa J pointed out in NAAV at [674], if the Tribunal fails to comply with the directory obligations prescribed in Pt 7 Div 4 of the Act, or asks itself the wrong question, or does not address all the claims of a visa applicant, or fails to accord procedural fairness to a visa applicant, those matters may be relevant to whether the Tribunal has made "an honest attempt to deal with a subject matter confided to the Tribunal and to act in pursuance of the powers of the Tribunal …": R v Murray; Ex parte Proctor (1949) 77 CLR 387 per Dixon J at 400. 17 The respondent acknowledges that, despite the apparently unconfined words of s 474(1) of the Act, there are still circumstances in which the Court may review decisions under the Judiciary Act. The reason why that is so emerges from the judgment of Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616. His Honour there indicated that, notwithstanding a privative clause such as s 474(1) of the Act, the power of a decision maker is exercised validly only if the decision maker made "a bona fide attempt to exercise its power, if the decision relates to the subject matter of the legislation, and if the decision is reasonably capable of reference to the power given to the decision maker". 18 It is therefore to the question whether the Tribunal exercised good faith, or made a bona fide attempt to exercise its power, which I now turn. 19 In SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076, at [27] - [33] I discussed the circumstances which might indicate a lack of good faith on the part of an administrative decision maker such as the Tribunal. I will not repeat that discussion. It is sufficient to note that the question whether the Tribunal attempted to address the question which its review required it to address in good faith is a matter of fact, to be decided upon all of the relevant material before the Court. I note that von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] indicated that it is likely to be an extreme case where such a conclusion of a lack of good faith is discerned only by reference to the reasons for decision of the administrative decision maker. 20 The applicant relied in large measure upon the Tribunal's consideration of the language analysis report to demonstrate a lack of good faith on the part of the Tribunal. The linguist was identified on the report as "PERS 3", employed by Eqvator, Stockholm. The report is dated 26 September 2001. 21 The linguist noted that the applicant spoke Dari, with a Hazaragi dialect. Hazaragi is mainly spoken in central Afghanistan, but there are also Hazaragi speaking minority populations in Pakistan. The linguist noted that the applicant spoke colloquial language with a Pakistani accent and gave some examples of ungrammatical speech. The linguist further noted that the applicant pronounced many words with a clear Pakistani pronunciation. Examples were given. The linguist noted that the applicant's answers contained the English word "party", a word said to be commonly used in Pakistani Hazaragi but not in Afghan Dari. The observation was then made that such material pointed to the applicant's Hazaragi dialect being Pakistani. 22 The linguist was required to complete one of four opinion options. The most positive was that selected, namely that: "The dialect/language variant occurring in the text/tape recording may with considerable certainty be said to originate from Pakistan, Quetta."

23 Reliance upon that linguistic analysis report had been a contentious issue before the delegate of the respondent. The delegate referred to information concerning in particular the analyst identified as PERS 3. The information was that the analyst had been used by Eqvator since 1992, is a university graduate from Afghanistan, whose mother tongue is Dari, has very good linguistic skills and knowledge of Afghan culture and society, has done more than one thousand analyses, and "is regarded as one of the two best analysts in this area in Europe". The analyst was said to have lived in Sweden for twenty years, and to have worked for Eqvator on a daily basis since 1992. 24 The Tribunal's observations about that evidence were as follows: "The Tribunal has considered the evidence of the language analysis carried out on the applicant's speech patterns on behalf of the Department. The Tribunal notes the comments made by the applicant and his agent about the reliability of language analysis. The Tribunal has also had regard to the submission of the Departmental Secretary about the subject. That submission outlines (inter alia) the way in which the companies used for this purpose approach the task of language analysis. Information provided in this regard, insofar as it relates to the particular company used in this instance is not new to the Tribunal as currently constituted, it having inquired into this aspect on previous occasions. The Tribunal is satisfied that the analyst can be regarded as an expert in his/her field and is qualified to comment on, and draw conclusions from, the speech patterns of the applicant. The analyst's observation that the applicant's dialect/language originates from the Quetta region of Pakistan was made 'with considerable certainty'. The use of these words indicates that the analyst's conclusion was at the strongest out of four possible levels. Moreover, the Tribunal notes that the independent evidence of Mousavi, quoted above, indicates that the Pakistani accent of Hazaragi is greatly influenced by Urdu and English and is very different from that of Hazaras from the Hazarajat in Afghanistan. In particular, the Tribunal notes the analyst's comment that the applicant pronounces the names "Afghanistan, Jaghori and Pakistan" with a Pakistani accent. The Tribunal has considered the applicant's explanation that, in recent years, local accents have been influenced by the trading of goods from Pakistan, and the training of some mullahs in Pakistan. However, the applicant claims to come from a small sub-village some two hours walk from the district centre; a village where his family would comprise a significant proportion of the households. No matter what influences might have been brought about by the use of Pakistani trade goods, and by accents introduced by mullahs, the Tribunal does not accept that this would influence the way local villagers would refer to their own district and country."

25 The applicant's migration agent, solicitors MacPherson & Kelly, have obviously done considerable work to address the weight which should have been attached to the report of the linguist. In a very detailed submission dated 23 November 2001, those solicitors contended that such linguistic reports should be used sparingly, and only as corroboration of other facts found to exist by the Tribunal, rather than as the fundamental basis for finding that the applicant was not from Afghanistan. The submission dealt with the reliability of linguistic analysis reports generally, and the criteria which should be satisfied before a linguistic analysis report should be accepted as having much probative weight. The material to which reference was made referred to the need for the linguist to have specific and contemporary qualifications and experience of the particular languages concerned, particularly in unstable regions with constant trans-border movements of persons (such as some independent country information indicates occurs between parts of Pakistan and Afghanistan). One source of that submission was a paper published by a Ms Jennie Fors, of Eqvator, pointing out the difficulty of providing a reliable opinion based upon a tape recording of an interview. The submission also pointed out the caution with which some members of the Tribunal have treated linguistic analysis reports, including reference to a number of decisions where the Tribunal had accepted that a visa applicant came from Afghanistan in the face of a linguistic analysis report indicating to the contrary, including certain reports which expressed "with considerable certainty" that the particular visa applicant originated from the Quetta region of Pakistan. Those decisions, as identified to the Tribunal in the submission, indicated concern about the detail or lack of detail of any reasoning process leading to the stated conclusion, the absence of any indication of the qualifications or experience of the linguist concerned beyond an assertion of a language degree, including the absence of information as to current familiarity with the accent and dialect used in the relevant parts of Afghanistan and in Quetta in Pakistan, and the terms of the conclusion. Thirdly, those submissions referred to two particular decisions of the Tribunal, differently constituted, in which language analysis reports provided by PERS 3 were not accepted as reliable evidence because of the lack of information as to the qualifications or experience of that analyst despite the general assertion as to qualifications and experience described above. There was no particular information indicating that the analyst was familiar with the accent and words used by persons from the area where the visa applicant in those cases claimed to have come from, particularly having regard to the period of time that PERS 3 had been apparently living and working in Sweden. That latter factor was pointed out as being of significance because of the extent of movement of persons between Pakistan and Afghanistan for trade and like purposes. Finally, the submission dealt with the contents of the linguistic analysis report itself, noting that the analyst did not provide any evidence of the use by the applicant of Urdu words, but relied upon a perceived Pakistani accent and the use of the English word "party", in the context of the applicant having been detained for a period of some months in Australia prior to the recording of that interview taking place. The extent of trans-border communication was also again referred to. 26 Those submissions are obviously of considerable significance. They provide good reasons to approach language analysis reports with caution. In SBAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 985 the material before the Court indicated that the Tribunal was confronted with two linguistic analysis reports which reached directly contrary conclusions based upon the same material, and with equal degrees of certainty. Such an experience must cause considerable doubt to exist as to the reliability of linguistic analysis reports generally without some specific foundation for them. Moreover, the capacity of a linguist to remain abreast of current idiomatic usages and accents in relatively close areas after an absence from a country for a number of years must give rise to some concern about the reliability of any opinion of such a person on such matters. 27 The Tribunal referred only fleetingly to those detailed submissions. It also referred to a submission from the Departmental Secretary, containing responses from a number of language analysis services including Eqvator as to their procedures and as to the criteria by which they select and engage linguistic analysts. The Tribunal dealt with a particular aspect of that submission in the passage quoted above, namely the suggestion that trans-border communications may have caused the applicant to be exposed to Pakistani accents. It also had regard to independent evidence, apparently from a contemporary source, that the Pakistani accent of Hazaras speaking Dari in Quetta is very different from that of Hazaras in the Ghazni Province. 28 Despite the significant matters raised by the applicant's solicitors in that contention, and the relatively cursory way in which the Tribunal has addressed those submissions, in the light of that material I do not think its reasons indicate that it did not attempt in good faith to address the weight to be attributed to the linguistic analysis report in this instance. It might have addressed the contentions in considerable detail. It might have explained why the linguist, who did not claim to have been in the area for many years and who had lived in Stockholm for twenty years or so, would have any contemporary knowledge of the differential accents. It did not address in any detail why that person was qualified to form the views which he did. However, I do not think the failure to deal with those submissions in detail of itself indicates a lack of good faith on the part of the Tribunal, and its reasoning indicates further that it considered the submissions (albeit without reciting them in detail) and that it rejected them (again without explaining why in any detail) for the reasons which it gave. Its reasons must also be seen in the context of the Tribunal's doubts about the applicant's claims as to his origins based upon the way his claims had evolved, and the minor inconsistencies in his claims which it noted. 29 It was the combination of the Tribunal's doubts about the applicant's claims, and the linguistic analysis report, which led the Tribunal not to be satisfied that the applicant is a citizen of Afghanistan. 30 I also do not accept that the Tribunal's acceptance of that linguistic analysis report indicates a lack of good faith on its part simply because the Tribunal, differently constituted, has concluded in other cases the evidence of that linguist should not be accepted or should not be given weight. That is a matter to be decided by the Tribunal in the circumstances of each individual case. It is to be decided in the light of all the evidence. As the Tribunal correctly did in this instance, it is to be decided not simply upon the basis of the linguistic analysis report itself ignoring the other material, but in the light of all the evidence. 31 I do not discern from the way the Tribunal approached the material generally that it was looking for reasons to reject the application of the applicant, or that it was not open to persuasion about the genuineness of the applicant's claims. 32 I also do not consider that the Tribunal's approach to its assessment of the reliability of the applicant's evidence indicates a lack of good faith on its part. It is true, as the Tribunal itself noted, that the points of which it took note were relatively minor in themselves. It was the combination of those factors which caused the Tribunal to doubt the truth of his claims, in conjunction with the significant matter as to his failure to identify and express his claims when he was first interviewed on 26 January 2001 shortly after his arrival in Australia, or to make those claims until his application for a protection visa was made on 20 June 2001, nearly six months later. The Tribunal recorded the applicant's explanations for why he had not made those claims at an earlier point. It did not inaccurately record them, and its conclusion that they were "unpersuasive" is one which, in my view, was readily open to it. The Tribunal's reasons do not indicate that it was not sensitive to the obligation to accord to the applicant a reasonable margin of tolerance in relation to his testimony, or in relation to vagueness or inconsistencies in peripheral details concerning it. It had regard to the whole of the evidence. It formed an adverse view as to his reliability for reasons which it has expressed. In my view, its approach to that question does not demonstrate a lack of good faith on the part of the Tribunal. 33 For those reasons, I am not satisfied that the Tribunal failed to approach its task with a mind open to persuasion, or that it did so other than in good faith. I do not think the grounds of review raised by the applicant are made out. I accordingly consider that the application should be dismissed. I so order. 34 The respondent in any event seeks an order for costs against the solicitor previously acting for the applicant in respect of the hearing previously adjourned from 3 April 2002. At the first directions hearing on 25 February 2002, when the applicant was unrepresented, the matter was listed for hearing on 3 April 2002. On 13 March 2002, the previous solicitor for the applicant filed a notice of acting on his behalf. Subsequently, by motion dated 2 April 2002, an application to vacate that hearing date was made by new solicitors then acting for the applicant. They had received instructions to act only a few days beforehand. That application was granted and the matter listed for the present hearing date. At the time of the adjournment, the respondent sought costs of the adjournment against that solicitor for costs thrown away by reason of that adjournment. 35 The applicant's solicitor has indicated by affidavit that, having received instructions to act on a pro bono publico basis, he made efforts to obtain counsel to appear at the hearings. The Court is aware that he was acting on a pro bono publico basis for a number of persons who were residents of the Woomera Immigration Reception and Processing Centre. He deposes to the difficulties of getting instructions because of the remote location of that centre and of obtaining counsel to appear. There was a relatively short timeframe between him getting instructions to act, and the date of the hearing. He was not shown to have been idle during that time. Moreover, the reasons why he was unable to procure counsel to act for the applicant during that time frame do not indicate any lack of diligence on his part. In the circumstances, I do not think it is appropriate to make the order for costs which is sought. 36 I have not taken into account the benefits to the efficient administration of justice, as well as to the proper delivery of justice, which those acting pro bono publico for persons seeking review of decisions of the Tribunal have secured. Any experience of hearing applications for review of decisions of the Tribunal conducted by applicants in person, particularly applicants in immigration detention, would indicate the very significant public service which those lawyers are performing. It is not the occasion to dilate upon those matters. However, although I have not taken them into account, I indicate that had I done so

they would also have weighed in the scales against making that specific award of costs which the respondent sought. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.