W284 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The Applicants arrived in Australia on 6 January 2001 by boat without lawful authority. They are husband and wife. The second applicant claims that he is a citizen of Afghanistan and his wife says she is a citizen of Indonesia. On 24 January 2001, they applied for a protection visa to the Department of Immigration and Multicultural Affairs. A delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visa on 27 April 2001. On 1 May 2001, the applicants applied for review of that decision to the Refugee Review Tribunal ("the Tribunal"). On 29 June 2001, the Tribunal affirmed the decision not to grant protection visas. The second applicant now seeks an order of review of that decision. The first applicant's application was not pressed and will be dismissed. Evidence and Claims 2 The record of the initial interview held with the second applicant indicates that in answer to the question, "Why did you leave your country of nationality (country of residence)?", he told the officer that it was because of problems caused for him by the Taliban. He said they came to his home and detained him three times in 1990. He and his family were required to pay them money. He did not know why he or his family were being targeted. Asked whether he had any reasons for not wishing to return to his country of nationality, he said it was because he escaped from that country and he might be known if returned. He feared that the Taliban would kill him if he were returned. 3 In support of his application for a protection visa, the second applicant submitted a typed statement prepared with the assistance of his migration agents. In that statement he said he was born in Parwan Province in 1966. His family had moved to Kabul when he was about four years old as his father had a business in second hand spare parts there. He said he had one brother and one sister and they all lived with his parents in Kabul until 1994 when they were forced, because of government harassment and lack of work, to return to their village of Danikarizak in Parwan Province. The second applicant attended school in Kabul for four years and from the age of eight years helped his father in his shop. In Kabul they owned a house with four rooms. When they left they paid a person to care for the house. In Danikarizak the family had a little land which produced sufficient food for six months. During the second six months they used their savings from the business to pay for food. They also owned a truck which they used to transport goods for people and derived income from this. They grew wheat and corn and had sixty to seventy apple trees and vegetables for themselves. The house had eight rooms. Members of their extended family also lived there. 4 The second applicant said that in the village, Danikarizak, there are 112 to 115 houses, one mosque and no school. There is one small shop. The family did its shopping in Pul-e Matak which is about 1 1/2 to 2 hours journey by truck. Most people shopped in the bazaar at Siagird about 45 minutes drive from the village. The area is mountainous but the village is located in a valley. 5 According to the statement, the second applicant's problems began when the Taliban took control of the area in 1998. Many were killed especially the more well known and popular people. The Taliban started to round up people of the second applicant's age to take them to the fighting. When he heard some men in a neighbouring village had been captured, according to the second applicant, he told them he was going to leave Afghanistan and go to Pakistan. With another person from the village he decided to escape. They left by truck in November 1998 and went to Kabul. The second applicant said he spent a few days with his uncle and then found a person who took them to Pakistan. They went to Logar Province and into Pakistan where he stayed five or six days in Peshawar and then went to Qetta for fifteen days. From there they went to Karachi and flew to Indonesia. The second applicant had been given the name of a people smuggler to contact in Indonesia. However he was refused assistance because of a dispute about whether that assistance had been paid for. The second applicant met the first applicant in a bazaar after five days. He married her and stayed with her for twenty days. He then left Indonesia and returned to Pakistan. He said he had a return ticket and false passport. He went back to Qetta and told the person who had organised for the payment for his trip what had happened. He returned to Afghanistan as he had no money to care for himself in Pakistan. 6 According to the second applicant he went back to Kabul and then returned to his home village in January 1999. For the first eleven months he hid in his home. He then went back to Kabul to his uncle's place, did some shopping and returned to his village. In or about June 2000, somebody must have reported that he was back because he said the Taliban came to his home and arrested him. They took him to the prison at Siagird, accused him of being rich and beat him terribly for two days every two or three hours. They asked for money and he sent a message to his father who went to Kabul and arranged for US dollars to be exchanged. According to the second applicant he was then released. He said he was arrested on two more occasions. Each time, in order to secure his release, he paid his custodians a bribe of $US300 to $US400 because they would not accept Afghani currency. On the third occasion following his release he stayed at home for two days. Then, according to the second applicant, he received a message from his cousin that he had recovered, from the people smuggler, some of the money previously paid less $1,500 that the smuggler had kept. The second applicant then returned to Pakistan and to Qetta where he was met by the same smuggler with another false passport. He was put on the train to Karachi and was told he would be met there by one Haji Kazim. That meeting took place and the following day he was put on a plane to Indonesia. He said his passport was false except for the part which showed his name and photograph on it. When in Indonesia he renewed contact with his wife. She told him she had had a child by him but that the baby had only lived for three months. They both decided to travel by boat to Australia. 7 He also stated in his submission that he though he would be harmed or mistreated if returned because he was Hazara and was a Shiite Muslim. 8 A further submission was made on behalf of the applicants by their migration agents on the application to the Tribunal. The substance of the submission was as made in support of the original application for a protection visa. 9 The second applicant gave oral evidence at the Tribunal hearing through an interpreter. The Tribunal characterised him as "extremely evasive" when answering questions put by it. He was repeatedly asked what conditions were like in Kabul in the two years before his family moved back to the village (1992). According to the Tribunal he would not answer the questions. He eventually said conditions were not bad. There was some unrest. He lived thirty to forty minutes from the centre of Kabul by car. He was asked who was Prime Minister and he said "Sebghatullah Mojadedi". He was asked about Rabbani and he said that Rabbani was in power after Sebghatullah and that he was still in power and had taken over after his family left Kabul. 10 According to the Tribunal, the second applicant was asked what he meant in his statement when he said his family left Kabul because they were harassed by the government. He was asked who was the government at the time. He said it was the Taliban. He claimed that in 1994 (1373 according to the Islamic calendar) the Taliban came to Kabul, killed Mazeri and took over. It was put to him that they did not come to Kabul in 1994 as they were just emerging in the south. They did not come until 1996. He confirmed, however, that they came in 1994 and then they were expelled and came back in 1996 and took over Kabul. 11 According to the Tribunal, the second applicant told them his family moved back to the village because they were frightened of being killed in the bombing and the Taliban were very cruel. He was asked if he was saying the Taliban were in control of Kabul at the time his family left, but he was vague and responded that they had a little power. There were not too many of them. He was asked if they controlled any area when his family left and he replied that they controlled from Pule Charkhi to Chaman-e-Hozoori. The family, he said, went to Parwan in the Turkman district where they had lived before they went to Kabul. Nothing happened to the family in Kabul before they left. 12 The Tribunal observed that it tried to ascertain in what part of Parwan his village was located. He was said to be very evasive and unable to name the nearest town simply saying the towns nearby were very small and only had a couple of shops. They were Siagird, Pul-e Matak and So Kheparsa. He said that Charikar was east of his town but it was round the mountain so he was not sure of the direction. He was asked how close his village was to Bagram and he said he had never heard of it. He told the Tribunal that the family travelled on the old road from Kabul to their village which was built in Najubullah's era. He went on a road from Kabul towards Charikar and then came to a turn off for Bamian but did not take that road. He was not near the Panjshir Valley. 13 The second applicant told the Tribunal that his family farmed and they had a truck. They hired a driver and drove people and goods (including food) around. They drove to various places including Ghazni, Jaghoori and Bamian. He was asked in the four years he was there whether the truck had any difficulty moving around. He said there was some fighting between Wahdat factions. 14 The Tribunal observed the second applicant to be evasive when asked what he did on the land to help his father. He would not describe the irrigation system. He said the water came from Behsud. He was said to be evasive in answering questions about farming methods. According to the Tribunal the second applicant was asked if where he lived was between the Panjshir Valley and Bamian and he replied in the negative. Bamian was north of his town and the Panjshir Valley north-east. He confirmed his village was near Behsud. It was put to him that Behsud was not in Parwan. It was put to him that if his village were south of Bamian then it must have been west of Kabul. In that event he was asked why he would travel north from Kabul via Charikar to get to it. He said they had to go around the mountains. It was put to him there was a road west from Kabul through a valley to Behsud. 15 The second applicant confirmed that he lived in an Hazara area. He was asked if there were any problems moving goods around and he said this happened sometimes. Sometimes factions would set up road blocks. When the Taliban took over there were not so many problems moving goods around. It was put to him that the Taliban had imposed a blockade in the area for eighteen months as they were trying to starve people in the Panjshir Valley. He said his family did not have to get its supplies from Kabul as there were supplies coming from Jaghoori. 16 He was asked about the Taliban's conduct and, in particular, if they had searched his house. He said they didn't have enough people to do that. The first time they came he went to the mountains and hid there for four months before he left. He had never mentioned hiding in the mountains before as no one had asked him. He said he left his village in December 1998 and with a friend hid in the rear of a truck and drove to Kabul. The truck was stopped a few times at check points. He was asked questions about his travel to Indonesia and his second trip and the amount of money that he had to pay the smuggler. 17 He was asked if he could explain any Hazara culture or traditions. According to the Tribunal he was unable to do so. He said he celebrated Nawroz. At that time, according to the translation of the evidence to the Tribunal, family members said happy new year to each other, children played and they visited family graves. He also said he observed Ashura, a religious festival commemorating the day the 12th Immam was killed and his wife was taken hostage. Only one other Immam had been killed and that was Abbas. Ali was said to be the first Immam and important because he replaced the Prophet Mohammed. The Tribunal asked the second applicant if Ali was related to the Prophet Mohammed and, according to the Tribunal, he said he was a descendant. Asked what the relationship was he replied he did not know because he never did any religious studies. 18 It was put to the applicant by the Tribunal that he did not have the typical physical features of the Hazara and he said that maybe his forefathers were Tajik or Pashtoon a few generations back. He said he can speak Hazaragi. He was asked if he spoke Kabuli and at first it was said, appeared not to understand, and then said he could speak Kabuli and Hazaragi. He was asked about typical Hazara food. He described Ogrha and said it was eaten at any time. The Tribunal's Findings and Reasons 19 In its findings and reasons the Tribunal referred to the second applicant's claim that he was a Hazara Shia. It found he knew very little about the Muslim Shia religion. He did not know that Ali, who is very important in the Shia religion, was Mohammed's grandson. In reference to the festival at Ashura he did not mention that there is mourning and that people flagellate themselves during the festival. In addition, it was said that the second applicant was unable to explain any Hazara culture or traditions. He claimed that they celebrated Nawroz but did not mention that during the celebration people dress in new clothes and visit one another or other important aspects of New Year. 20 In relation to the second applicant's claim that he could speak Hazaragi, linguistic analysis was said to indicate that he had a very faint Hazaragi accent. Given that he claimed to have lived from the age of 4 to 28 in Kabul and only four years in the north, the Tribunal expressed the view that it would expect him to speak Kabuli. When asked what the Taliban did when they took over, he did not indicate that they imposed restrictions on his religion. In his evidence to the Tribunal, the second applicant did not indicate that they targeted Hazaras. The Tribunal found the second applicant to lack knowledge in matters to do with the Shia religion and in relation to the traditions and customs of Hazaras. It referred also to his claim that his forefathers were probably Tajik and Pashtoon. The Tribunal did not accept that he was an Hazara Shia. 21 In relation to the claim that Pul-e Matak was where his family did their shopping, the Tribunal observed that Pul-e Matak is about 20 kilometres north of Charikar and not in the district of So Kheparsa, but on the opposite side of Parwan. The second applicant was said to have been very evasive when questioned as to the location of the village at the hearing. He claimed he did not know what direction his village was from Kabul. In the event, his inability to describe the location of his village particularly in relation to the towns of Bamian and Charikar and to describe how he travelled there from Kabul meant that the Tribunal could not accept that he was from Parwan Province. It was put to the second applicant in the course of the hearing that there was a road due east from Kabul to Behsud through a valley. Reference was made to a UNDP map and physical map. The second applicant claimed the mountains were in the way. 22 In relation to the Taliban takeover of Kabul, the Tribunal did not accept that the applicant was in Kabul at the time he claimed. 23 The Tribunal concluded that the second applicant was a most unsatisfactory witness. It set out in detail why it doubted the truthfulness of his account. If he had made one or two errors in relation to when things occurred in Afghanistan or the mistakes in dates were minor, the Tribunal might have accepted it was the result of a mistake in converting between the two calendars. It went on: "However the Tribunal finds that his lack of knowledge of the situation in Afghanistan was fundamental. He appeared to have known a few isolated events/facts but was unable to explain a more general picture of his life in Afghanistan. Many of these factors discussed above would not, on their own, be determinative. Due to the extent of his inconsistencies with country information, his reluctance to provide evidence to the Tribunal and the implausible nature of much of his evidence, the Tribunal finds that he has fabricated a claim for refugee status." Grounds of Review 24 The applicant, being represented by pro bono counsel at the hearing, a substituted application for an order of review was lodged at the time and by leave treated as the application. 25 The grounds of the application were as follows: "a) The Tribunal failed to observe the procedures required to be observed under the Migration Act in that the interpretation of the Applicant's statements into the English language at the hearing before the Tribunal was of such poor quality of English and contained errors of interpretation so that the Applicant was deprived of a proper opportunity of presenting his case to the Tribunal and was deprived of a hearing before the Tribunal. PARTICULARS i. The Applicant stated that the Taliban entered part of Kabul and took and killed a militia commander Mazeri in 1373. The Interpreter interpreted the Afghan year 1373 as 1994 when in fact it comprised the period from 21 March 1994 to 20 March 1995. The Country information relied on by the Tribunal showed the Taliban were in the outskirts of Kabul on 8 March 1995, suffered defeats between 12 and 19 March 1995 and were forced to withdraw south and that the Taliban killed Mazeri on 13 March 1995. The Tribunal concluded that the Applicant could not have been in Kabul at the relevant time as he did not know what was happening there. ii. When asked to nominate the largest town near his village, the Applicant described Pul-e Matak as a former bazaar, which had been destroyed. The Interpreter stated that the Applicant said that Pul-e Matak was situated south of his village. The Tribunal relied on Country Information to the effect that Pul-e Matak was 20 km north of Charikar (and would therefore have been north-east of the location of the Applicant's village as otherwise described by the Applicant). When the Applicant was further asked to describe where his village was and how to get to it, the Interpreter interpreted the Applicant's answers in a confusing and inaccurate way. The Tribunal concluded that the Applicant was unable to state accurately where his village was. iii. When asked about the festival of Nawroz the Applicant stated that the people celebrated by visiting Sakhi (meaning the Shrine of Sakhi a Muslim name for the Immam Ali at Karte Sakhi the place having taken the name of the shrine) in Kabul or the Shrine of Sakhi in the villages which was located in the cemetery. The Interpreter stated the Applicant said that in Kabul the people would go to Sakhi (without interpreting that word) and that in village they would go to the family grave. The Tribunal relied on Country Information, which did not mention that the people visited family graves and concluded that the Applicant knew little of the Shia celebration of Nawroz. iv. When asked about the festival of Ashura the Applicant stated amongst other things that the people beat themselves with chains. The Interpreter stated that the Applicant said that the people help themselves with chains. The Tribunal relied on Country Information to the effect that people beat themselves during this festival and that as the Applicant had not said this, the Tribunal concluded that the Applicant knew little of the Shia celebration of Ashura. v. When the Applicant was asked as to whether the other 12 Immam were killed the Applicant's answers continued to be focused at who had died on the day commemorated by Ashura. The Interpreter interpreted the Applicant's answers in a confusing and inaccurate way and thereby failed to clarify to the Tribunal that the Applicant's answers were directed to the day of Ashura. The Tribunal concluded that the Applicant knew little of the Shia celebration of Ashura. vi. When the Applicant was asked whether Immam Ali was related to the Prophet Mohammed, the Applicant replied that he was a relation of the Prophet Mohammed. The Interpreter stated that the Applicant said that the Immam Ali was a descendant of the Prophet Mohammed. The Immam Ali was a cousin and the son in law of the Prophet. Strictly speaking he was not a descendant. The Tribunal concluded that the Applicant knew little of the Shia religion and its beliefs. b) There was no evidence or other material to justify the making of the decision, in that the Tribunal based the decision on the existence of certain facts which did not exist. PARTICULARS i. That the Immam Ali was Mohammed's grandson. In fact the Immam Ali was the Prophet Mohammed's cousin and son-in-law. ii. That the Applicant had not mentioned that the Shia beat themselves during Ashura. The Applicant had stated that people beat themselves with chains. iii. That the Applicant had stated that of the 12 Immam only Hussain and Abbas had been killed. In fact that the Applicant had stated that only Hussain and Abbas had been killed on the day of Ashura. iv. That the Applicant had stated that people visited graves as part of the Nawroz celebration. In fact the Applicant had stated that the people visited the shrine of the Sakhi (namely the Immam Ali). v. That the Applicant had stated that the Applicant's forefathers were Tajik and Pashtun a few generations back. In fact the Applicant had stated that the forefathers of the Hazara people of his area, namely in the Turkman Valley, were Tajik or Pashtun a few generations ago. vi. That if the Applicant's forefathers were Tajik and Pashtun, that would suggest that the Applicant was a Tajik or Pashtun and not Hazara. In fact it would only mean that the Applicant had some Tajik or Pashtun ancestry. vii. That the Applicant had stated that Behsud was north of his village. In fact the Applicant had stated that Bamian is to the north of his village. viii. That the Applicant's statement that it took 3 1/2 hours by taxi from his village to Charikar was consistent with his village being near Pul-e Matak. In fact, as the Tribunal had noted, Pul-e Matak was only 20km from Charikar and it would not be consistent to travel only 20 km in 3 1/2 hours by taxi. ix. That the Applicant had stated that Pul-e Matak was one of the closest towns to his village. In fact the Applicant stated Seyagrid was the closest town where people did daily shopping and Pul-e Matak was the nearest large town. x. That the Applicant was evasive in his answers as to the location of his village. In fact the Applicant had described the location of his village. xi. That the Applicant said that his village was near Behsud a town marked on the Tribunal's map. In fact the Applicant had stated that his village in the Turkman valley was near the district of Behsud. xii. That the Applicant claimed that there were mountains in the way between Kabul and Behsud. In fact the Applicant stated there were mountains in the way of proceeding directly to his village. xiii. That the Applicant was unable to describe the location of his village or to describe how he travelled there from Kabul. In fact the Applicant did describe the location of his village and how he travelled there from Kabul. xiv. That the Applicant had stated and when queried had repeatedly confirmed on a number of occasions that the Taliban had approached Kabul and had killed a militia leader Mazeri in 1994 when in fact such events had taken place between 8 and 19 March 1995. In fact the Applicant had confirmed that such events had taken place in 1373 and the relevant period in March 1995 was in 1373." Affidavit Evidence 26 Affidavit evidence was put before the Court to demonstrate errors in interpretation of the second applicant's oral evidence to the Tribunal, matters of local geography relevant to the Tribunal's findings and an issue related to the Islamic faith. 27 The deponent, Ali Madani was born in Afghanistan and is of Sahdat ethnicity. He migrated to Australia in 1992 and is now an Australian citizen. He is employed part time at Central TAFE College in Perth teaching, inter alia, interpreters in the Dahri language. Before leaving Afghanistan he was a professor in the School of Journalism at Kabul University. He is involved in assisting the Afghan community in Western Australia and is chairperson of the Afghan-Australia Human Rights and Charitable Association. Reference to his affidavit will be made when dealing with the second applicant's submissions. Error of Interpretation - Failure to observe Procedures 28 The first ground of review alleges a failure by the Tribunal to observe procedures required by the Act to be observed. At the hearing before the Court, counsel for the applicants submitted that the errors of interpretation would also go to jurisdiction. Moreover a failure to provide an interpreter would give grounds for review under pars 1(b), 1(c) and 1(e) of s 476 of the Migration Act 1958 (Cth). The substituted application raises only failure to observe procedures as its first ground and this was the primary focus of the submissions. 29 There is no provision of the Act or Regulations which deals expressly with the use of interpreters in Tribunal hearings. Section 425 of the Act provides: "425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal." 30 In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J accepted that a failure in the standards of interpretation could amount to a failure to afford an applicant an opportunity to give evidence as required by s 425 of the Act as it then stood and on that basis to give rise to want of jurisdiction on the part of the Tribunal. In that case her Honour held the departures demonstrated from the requisite standard of interpretation related to matters which were significant for the applicant's case and for the Tribunal's decision. They were shown to be relevant departures in the interpretation of his evidence on matters crucial to his application. On that basis he was "… prevented from giving evidence on matters relevant to his application for refugee status". Counsel for the respondent argued that Perera's case could be distinguished on the basis that s 425(1) was amended with effect from 1 June 1999. Where previously it required the Tribunal to "give the applicant the opportunity to appear before it to give evidence" it now requires the Tribunal to "…invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". The only obligation on the Tribunal under s 425(1), it was submitted, is to invite an applicant to appear before the Tribunal where the Tribunal cannot decide in favour of the applicant on the papers. The subsection now provides only a formal requirement and does not place any further procedural requirements upon the Tribunal. 31 In Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759, Goldberg J considered whether the provision of an incompetent interpreter resulting in an applicant being prevented from giving evidence is a breach of s 425(1) in its present form. His Honour reviewed recent authorities going to the effects of the amendment to s 425. It is not necessary to recite that review here. Goldberg J however agreed with the observations of Wilcox J in Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 that notwithstanding the current language of s 425(1) events subsequent to the invitation are not necessarily immaterial. The invitation must remain open. As Goldberg J said: "The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal. If that situation arises the Tribunal will not have fulfilled its obligation under s 425(1). " It is to be noted, however, that in that case while Goldberg J identified a number of departures from the requisite standard of interpretation they were not critical to the presentation of the applicant's case nor did they influence the Tribunal in its reasoning and the findings which it made. The Tribunal's conclusions there were based mainly upon its analysis of the documentation supplied and the inconsistencies and difficulties within it. None of the passages in the transcript which demonstrated incompetent interpreting bore upon those conclusions. 32 Counsel for the respondent submitted that in any event the decision of the Tribunal was critically based upon a finding that the second applicant lacked knowledge of the situation in Afghanistan and that as a result it could not be satisfied that he was a national of that country. Its decision was said to be critically based upon a comprehensive rejection of the veracity of the second applicant's account of things. 33 The interpreter errors identified by Mr Madani were not challenged at the hearing. Having regard to his background and qualifications, I have no reason not to accept the correctness of his evidence in this respect. 34 Matters of significance affected by inadequacies in interpretation, by reference to the particulars of ground 1 were: