WAFV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

INTRODUCTION 8 This is an appeal from a judgment, delivered by a judge of this Court on 17 January 2003, dismissing the appellant's application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 8 March 2002. The Tribunal affirmed the decision of a delegate of the respondent, made on 20 December 2001, not to grant a protection visa to the appellant.

factual and procedural background 9 The appellant arrived in Australia by boat on 22 August 2001. He claimed to be a citizen of Afghanistan and, on 20 September 2001, applied for a protection visa. The appellant's claims for entitlement to such a visa were as follows. He was an Hazara, Shi'ite Muslim whose father had been conscripted and killed by the Taliban some three years before his departure from Afghanistan. The Taliban had attempted to conscript him but he had escaped with assistance. If returned to Afghanistan he feared for his life because if the Taliban caught him they would kill him. In later claims he asserted that as a Hazara and Shi'ite Muslim he would be the subject of persecution on grounds of race and religion if returned to Afghanistan. 10 The appeal is, in part, concerned with whether the Tribunal breached the requirements of procedural fairness in relation to linguistic analysis reports obtained from Sweden. Accordingly, it will be necessary to descend into some detail about the factual background of that matter. 11 On 14 September 2001 the appellant was interviewed by a delegate of the respondent. He was again interviewed on 28 September 2001. 12 On 5 December 2001 the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") wrote to the appellant (with a copy to his migration agents) advising that a linguistic analysis of the tape of an interview (it is common ground that this was the interview on 14 September 2001) had been conducted by Eqvator, a language analysis service based in Stockholm, Sweden. The letter continued in these terms: 'The analyst's conclusion is that the dialect/language variant occurring in the text/tape recording may with considerable certainty be said to originate from of (sic)'Pakistan, Baluchistan'. This information leads me to doubt your claim to be a citizen of Afghanistan, Hazara and a Muslim Shi'ite.' 13 The appellant was invited to make representations or comments about that conclusion. 14 On 12 December 2001 the appellant's migration agents wrote to the Department requesting a copy of the tape and the report. In that letter the migration agents referred to their experience of errors in such reports and, in one case, a report which indicated words allegedly spoken which had not in fact been spoken. 15 It appeared that the appellant had previously been supplied with a tape recording of the relevant interview, but the delegate did not comply with his migration agents' request for a copy of the tape which had been supplied to Eqvator. 16 On 20 December 2001 the respondent's delegate refused the appellant's application for a protection visa, stating that she was satisfied that he was not a citizen of Afghanistan as he had claimed. 17 Following the appellant's application to the Refugee Review Tribunal for review of the decision made by the Minister's delegate, the Tribunal wrote to the appellant (again with a copy to his migration agents) on 9 January 2002. The first three paragraphs of that letter were in the following terms: 'The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The Tribunal has before it the results of language analysis which indicates that your dialect/language variant "may with considerable certainty be said to originate from Pakistan, Baluchistan". Specifically, the analyst said that your mother tongue is Dari but your "Hazaragi dialect is Pakistani". The analyst said that you pronounce "many words with a Pakistani pronunciation, for example 'ONJAGA', 'BAZI', 'NERGAW', 'MEDGAW', 'KHATOM', 'NOMAZ', and 'TOBGANTAI'. He said that you use the Urdu words 'PAN', 'BAD', and 'TASOWA', and made the point that the Urdu language is not spoken in Afghanistan. [Enclosed is information about the firm Eqvator, which conducted the analysis, and the particular analyst who was used. This information has been prepared in this format by the Tribunal and is based upon information provided to DIMA by Eqvator.] This information is relevant because if the Tribunal were to conclude, on the basis of it, that you are not from Afghanistan, that would lead it to conclude that your claims about your experiences in that country are not truthful, and that your claimed fears are not well-founded.' 18 The letter continued by referring to what it said were inconsistencies between information provided by the appellant at an interview on 2 September 2001 and the subsequent interview on 28 September 2001. The letter concluded with an invitation to the appellant to provide comments. 19 On 15 January 2002 the appellant's migration agents wrote to the Tribunal explaining that they could not comment about the Eqvator report until they were provided with a copy of it. They requested a copy of the tape used for the linguistic analysis report and a copy of the report. The Tribunal did not comply with that request. The migration agents enclosed in their letter some hand-written submissions from the appellant commenting on the observations extracted from the Eqvator report and set out in the Tribunal's letter dated 9 January 2002. 20 On a date which is not disclosed by the evidence, but was probably in late January or early February 2002, the Tribunal wrote to Eqvator setting out some of the objections raised by the appellant to its report and asking four questions arising out of the submissions made by the appellant and his migration agents. 21 On 20 February 2002, the Tribunal sent to the appellant and his migration agents a copy of its communication to Eqvator and a copy of Eqvator's response, the latter being dated 11 February 2002. In the covering letter the Tribunal invited the appellant to comment. The appellant's migration agents did so by letter dated 26 February 2002. They again noted that they had not been provided with copies of the tapes on which the original Eqvator report was based, or information about the length and quality of the recording of the tapes provided to Eqvator and the name and qualifications of the analyst. They also noted that the Swedish analyst, when asked the four questions by the Tribunal, had not been provided with a copy of the original tapes and was thus unable to make specific comments or check the usages of words or context when answering the questions raised by the Tribunal. They informed the Tribunal that they had requested a linguistic analysis from an expert in Arizona, USA. 22 The Tribunal hearing took place on 27 February 2002. On 28 February 2002 the appellant's migration agents forwarded to the Tribunal a linguistic analysis of the appellant's speech prepared by Mr Jan Mohammed a Ph.D student at the University of Arizona. Mr Mohammad's report started with a short biography. In it Mr Mohammad stated that he was born and raised in Afghanistan, spoke Dari and some other languages spoken in that country and received an MA degree in theoretical linguistics from Ohio University in 1991. He was a Ph.D candidate in the Department of Linguistics, University of Arizona. His area of specialisation was syntax and his doctoral dissertation was being written on the subject of constituent order in Dari. He had carried out several research projects concerning various aspects of the grammar of Dari. He had taught Persian for eight semesters in the Department of Near Eastern Studies, University of Arizona from 1994 to 1999. As a linguist who spoke Dari and was familiar with its dialects, he considered himself qualified to analyse the speech of any subject from a linguistic point of view. 23 Mr Mohammad's report was faxed at 5.42 pm on 26 February 2002 (given the time difference this was probably at or about the time of the Tribunal hearing) from a fax machine which was identified as "SAFI. DOLLAR STORE". 24 Mr Mohammad's report was described by the learned primary judge as containing reasoning which was detailed and particular to the applicant's case. Having read that report I agree respectfully and unreservedly with his Honour's assessment. 25 Mr Mohammad's report has all the hallmarks of a professionally prepared expert's report. It gives very detailed reasons for his conclusion that there was no trace of any influence in the appellant's speech from Urdu, English or any other local language spoken in Pakistan. 26 The Tribunal saw fit to make what I consider to be most extraordinary and unwarranted imputations about Mr Mohammad's report. They were expressed in the following terms: 'The report submitted by the applicant's agent purports to come from a qualified linguist from the University of Arizona. However, as noted above, the documentation was printed on plain paper and was dispatched from a "dollar store". The Tribunal would have expected that, if the person concerned was associated with the University, his report or at least the covering letter would have written (sic) on paper bearing some official letterhead, and would have been sent from the university.' 27 As the primary judge observed, this criticism overlooked the fact that the appellant's analyst was a Ph.D student at the University of Arizona, not a member of its staff, and that the report was required as a matter of urgency. I respectfully agree with those observations. I would add this. It would seem that the Tribunal member would have been more impressed by Mr Mohammad's report if he had misused university letterhead and used a university fax machine to send a fax internationally. The Tribunal completed its reasoning in relation to the matter of language analysis in these terms: 'Moreover, though admittedly lacking linguistic qualifications, the Tribunal was not impressed by some of the reasoning in the report [i.e. Mr Mohammad's report]. For example, the writer questioned the Eqvator analyst's conclusion about the applicant's accent in the following words:

"It is not clear from the Eqvator's conclusion how these words are said with a "Pakistani pronunciation". First of all the phrase 'Pakistani pronunciation' itself is vague because there are many languages spoken in Pakistan and it is not clear which one of the languages have influenced the [applicant's]pronunciation of the above words."

In the Tribunal's opinion, it is clear from the context of the Eqvator report that the analyst was maintaining that the applicant spoke the Hazaragi dialect of Dari in the manner with which Pakistani Hazaras speak it as their mother tongue, not that he was speaking the language as if he had been raised speaking another Pakistani language. In contrast, the Tribunal was impressed by Eqvator's response to the objections raised by the applicant which, to the Tribunal, appeared to be logical and well-reasoned. The Tribunal therefore gives significantly greater weight to the results of the analysis conducted by Eqvator than it gives to the report commissioned by the applicant's agent. The Tribunal is satisfied that the applicant does have speech patterns which suggest a language background in Pakistan. Having regard to its lack of satisfaction about the applicant's claims about his family's interactions with the Taliban, its reservations about some of his evidence, and the results of the language analysis, the Tribunal is not satisfied that the applicant is a citizen of Afghanistan.' 28 Immediately before dealing with the matter of language analysis in its reasons, the Tribunal had considered the appellant's claims that his father had been taken by the Taliban either two or three years previously before the appellant's departure from Afghanistan and that he had been also sought by the Taliban for service at the front in its war with the Northern Alliance. On the basis of what the Tribunal perceived to be certain inconsistencies about the dates upon which the appellant's father had been taken by the Taliban, the Tribunal had said this: 'The Tribunal is not satisfied that the applicant's father was taken by the Taliban, whether at one of these times or at any other. Following from this, the Tribunal is not satisfied that he himself was ever sought by the Taliban.' 29 The Tribunal then noted what it considered to be the appellant's lack of knowledge of certain Afghan matters which it thought he would be likely to know. The Tribunal said that it had been led "… to wonder whether he had learned certain facts, rather than been personally aware of them from his own experience." 30 Finally, after making its finding that it was not satisfied that the appellant was a citizen of Afghanistan, the Tribunal stated that even if it were satisfied about that, it would not be satisfied that he would now have a well-founded fear of persecution in Afghanistan. It gave its reasons for this, which were based on the fact that the situation had changed significantly in Afghanistan since the appellant had left that country.

the decision at first instance 31 His Honour's judgment was given before the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. His Honour applied the principles explained by a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. In that context the issue before his Honour was whether there had been a want of good faith on the part of the Tribunal. His Honour made the following observations in relation to the linguistic analysis: 'Both the Department and the Tribunal in this case appear to have failed to accord the applicant the degree of fairness which might have been expected in the way in which they dealt with the linguistic analysis. Given its importance, it should have been provided in full to the applicant. No convincing reason has been advanced to explain why this did not occur. . . . In the present case however, although in my opinion the way in which the Tribunal dealt with the linguistic analyst's report left much to be desired, it did not amount to or evidence want of good faith. The Tribunal did draw to the attention of the applicant the particular points from the analyst's report which it regarded as adverse to him and invited a response. Its failure in fairness did not amount to want of good faith. The Tribunal's dismissal of the report prepared by the applicant's expert and its treatment of the respective merits of the linguistic analyses was less than satisfactory. But it was open to the Tribunal to prefer one report over another and to give such weight to the respective reports as it thought appropriate. [Authorities cited]. The Tribunal's approach, while it may be open to criticism, is not indicative of recklessness or capriciousness or want of good faith. In any event, the Tribunal proceeded to assess the applicant's case on the assumption that he was of Afghan nationality and found against him on the question whether he had a well-founded fear of persecution for a Convention reason if returned to Afghanistan. It held by reason of the overthrow of the Taliban regime, that he could be returned. That finding was open to the Tribunal.' 32 An allegation of error of law on the Tribunal's part was based on the same particulars as the alleged want of good faith.

the issues in the appeal 33 There are two issues in the appeal. The first is whether a breach of procedural fairness occurred in relation to the proceedings before the Tribunal to such an extent as to constitute jurisdictional error. The second was whether the Tribunal's decision should be quashed, or whether its decision should be allowed to stand on the so-called alternative basis summarised by his Honour in the last of the paragraphs from his reasons set out above. 34 The respondent concedes that in the light of the decision of the High Court in Plaintiff S157/2002, his Honour was in error in concluding that a breach of the rules of natural justice on the part of the Tribunal would not vitiate its decision. 35 The respondent contended that, on the facts of this matter, there had not been any such breach because sufficient adverse material had been put to the appellant and his advisers to enable them to deal with the allegation that he was from Pakistan. 36 The respondent submitted that, by comparing the full Eqvator's analyst's report and the information which was provided to the appellant by the Tribunal in its letter dated 9 January 2002, it was apparent that the appellant had been provided with sufficient information to enable him to deal with the adverse matters contained in that report. Accordingly, so it was put, there was no breach of procedural fairness by the Tribunal. 37 Alternatively, the respondent submitted that if there had been a breach of procedural fairness, that did not make any difference to the result because the Tribunal had assessed the position on an assumption that the appellant was of Afghan nationality.

my reasoning 38 I do not accept the respondent's submissions. 39 In my view, the Tribunal should have made available to the appellant's migration agents a further copy of the precise tape which was first submitted to Eqvator. This would have enabled the appellant to check whether it was the right tape, whether he had in fact used the expressions referred to in the Eqvator report, and to check that the tape was of a length normally required by Eqvator in its description of its modus operandi. 40 Furthermore, in my opinion, a comparison of the full Eqvator report [handed up at the hearing of the appeal] with the information provided to the appellant shows that substantial portions of the matters adverse to the appellant were not included in the particulars supplied to him. The Tribunal selected one paragraph dealing with matters of pronunciation. It did not put to the appellant the two previous paragraphs and a subsequent paragraph which dealt with such matters as his Pakistani accent, and his colloquial language. 41 The appellant's expert should have been provided with all of the information which would have resulted if these simple and inexpensive steps had been taken. Furthermore, both experts should have had access to each of the tapes upon which they had respectively relied, and a copy of each other's reports when expressing their responsive opinions. 42 In my view, his Honour was correct to find that there had been a breach of procedural fairness on the Tribunal's part. 43 The respondent accepts that ordinarily a breach of natural justice would entitle the person affected to relief, unless the Court is satisfied that such breach could not have made any difference to the decision sought to be challenged. The respondent contends that this is such a case, because the Tribunal went on to assess the appellant's claims on the assumption that he was a citizen of Afghanistan. Accordingly, any breach of procedural fairness could not have made any difference and the appeal should be dismissed. 44 I accept the appellant's submissions that, if procedural fairness had been observed, there could have been a different result. 45 The Tribunal's finding that the appellant was not a national of Afghanistan who had been brought up and lived all his life in the Jaghuri district of Ghazni Province, but was rather from Pakistan, went directly to his credibility. It meant that the whole of his claims of past persecution and fears of future or continuing persecution were a fraud. I am satisfied that the Tribunal's adverse finding about nationality would have affected and lent support to its finding that the appellant's father had not been taken by the Taliban and that he had not been sought by the Taliban. Similarly, I accept the likelihood that the Tribunal's decision not to accept his claims of having a fear of continuing persecution from Pashtuns based on his past experience, would have been affected by its finding that his claims to be an Afghani were fabricated. 46 I accept the appellant's submissions concerning the sequential nature of the Tribunal's reasoning. They were to the following effect. The fact that the Tribunal's findings were made sequentially, with the adverse credibility findings preceding the finding that the appellant was not a citizen of Afghanistan, does not mean that each factual issue was decided in isolation from the others. Common to both, supposedly alternative, bases for the Tribunal's conclusion was its refusal to accept the credibility of the appellant's claims. In the absence of any evidence to the contrary, in my view, the Tribunal is to be taken as having reviewed the whole of the evidence before it set about its task of forming its conclusion and reducing its reasons for that conclusion into writing. As Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S106/2002 [2003] HCA 30, at par [14]: 'Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.' 47 Since the defeat of the Taliban government in Afghanistan, the Tribunal has given several decisions in relation to Hazaras from Ghazni Province claiming persecution by reason of race and ethnicity. Some of those decisions were favourable to the refugee claimants and others were not. The applicant is entitled to have a fair hearing of his claims of continuing persecution. 48 In my opinion, it does not matter how much evidence there may have been on one side of the scale to support the Tribunal's ultimate conclusion on the so-called alternative basis. What does matter is that the appellant's evidence, on the other side of the scale, should have been tested without the tarnish of having been found to be a Pakistani fraudster by a process that was (as the primary judge correctly found) unfair. The appellant's evidence on the other side of the scale did not go solely to assessment of his subjective fears. It was also very relevant to whether on an objective basis, there was in his particular circumstances a real chance of persecution if he were returned to Afghanistan. He was unfairly denied proper consideration of that evidence. 49 In fairness to the primary judge, I do not think that in the last of the paragraphs extracted from his reasons and set out at [24] above, he was turning his mind to the question whether the breach of procedural fairness would have made any difference to the outcome. On the state of the authorities at the time, that was not something he was obliged (or possibly allowed) to consider. 50 I accept also the additional submission made on behalf of the appellant, and set out in Ground 5 of the amended notice of appeal. The substance of that ground is that the appellant remains adversely affected by the breaches of procedural fairness described above. He remains in detention as a Pakistani impostor, rather than as someone who had genuine reasons to flee from Afghanistan, even if those reasons may no longer exist. At best, he may be regarded as a person of unidentified nationality. The appellant's status, resulting from the flawed process of the Tribunal, is likely to affect the destination to which the respondent will send him. 51 I note also that it is apparent from the Tribunal's reasons that it referred to information from the United Nations which it obtained on 7 March 2002, the day before it handed down its decision and about a week after the hearing, in relation to then current circumstances in Afghanistan. It does not appear that the Tribunal gave the appellant an opportunity to comment on this information. If it did not do so, it may have again breached the requirements of procedural fairness: WAHT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 593; Applicants S194 of 2002 v Refugee Review Tribunal [2003] FCA 615 and VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678. I am also not satisfied that such a breach could not have made any difference to the decision. But as this point was not raised or argued in the appeal it can play no part in its disposition.

Conclusion 52 For the foregoing reasons (other than those in the immediately preceding paragraph) I would allow the appeal, set aside the decision at first instance, set aside the Tribunal's decision, remit the matter to the Tribunal for consideration in accordance with the law and order the respondent to pay the appellant's costs at first instance and of the appeal. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate: Date: 31 October 2003 Counsel for the Appellant: Mr H N H Christie

Solicitor for the Respondent: Australian Government Solicitor