FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523

MIGRATION – review of decision by Refugee Review Tribunal affirming respondent’s refusal to grant protection visa – applicant unrepresented and unable to speak English – Court’s role in such circumstances – whether any reviewable error – applicant claimed to be citizen of Afghanistan – Tribunal disbelieved him and found, on evidence which included expert evidence, that applicant was not from Afghanistan and thus had not been persecuted in that country as he had claimed – whether Tribunal obliged to find (and set out its finding) the applicant’s real nationality or country of former habitual residence – whether any reviewable error discernible in Tribunal’s reasons.

Migration Act 1958 (Cth), ss 430(1)(c), 476(1)(a), (g), 476(4)(b)

Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 referred to

Minister for Immigration and Multicultural Affairs v Singh (2000) 989 FCR 469 applied

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 applied

MOQBOOL HUSSAIN v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

W 19 of 2001

CARR J

4 MAY 2001

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

introduction

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 10 January 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant arrived in Australia on 23 March 2000.  On 1 June 2000 he applied for a protection visa.  On 9 October 2000 a delegate of the respondent refused to grant him a protection visa.  On 12 October 2000 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal.  This matter is somewhat unusual in that both the respondent’s delegate and the Tribunal disbelieved the applicant’s claims to be a citizen of Afghanistan and to have lived there all his life until he came to Australia.  The Tribunal did not actually find that the applicant came from Pakistan, but there was evidence, which the Tribunal accepted, to the effect that he originated from the Quetta region of Pakistan.

the applicant’s claims and the Tribunal’s decision

2                     The applicant’s claims, in summary were as follows:

·          That he was born in 1981 in the village of Shekhchagoo, Baba, Jaghouri in Afghanistan.

·          He is of Hazari ethnicity, speaks Hazaragi and is a Shi’a Muslim.

·          His father is dead, but his mother and sisters and two of his brothers are living in Afghanistan with the whereabouts of his two other brothers not known.  His father was killed three years ago, but he did not know who killed him.  Two of his brothers fled Afghanistan about 20 months ago.

·          He never attended school, was apprenticed to his brother as a tailor and worked in his brother’s shop in Baba from 1991 to 1999.

·          When the Taliban came to his area they rounded up all the young Hazara boys to fight the opposition in Pangsher.

·          He was arrested by the Taliban in January 2000 and he and four other people were held for 10 days because the Taliban intended to send him and them to the front line.  While in detention he was kicked and punched and warned that if he tried to escape he would be blown up by anti-personnel mines.

·          He was able to escape from the prison because one of his friends picked the padlock.

·          After he escaped he returned home, but his mother sent him to his uncle’s house in Baba where he hid for about one month during which he was ill for about a week because of the torture inflicted on him by the Taliban.

·          His uncle decided that he (the applicant) should leave Afghanistan and made arrangements with a smuggler for his departure.

·          He travelled for two nights on a truck and stayed in the middle of the desert for one night.  Thereafter he travelled for several more days until he arrived close to water and then travelled by boat, and sometimes by bus, for two months.

·          He feared that he would be killed by the Taliban if returned to Afghanistan because he is a young Hazara boy and because he is a Shi’a.

3                     The Tribunal noted that the interview of the applicant by the respondent’s delegate on 8 June 2000 had been taped and that the tape had been sent to a Swedish agency specialising in translations and linguistic analyses.  The analyst had concluded that the applicant’s dialect or language variant could (with considerable certainty) be said to originate from the Quetta region of Pakistan.  The applicant disputed this.

4                     The Tribunal also noted that, on arrival in Australia, the applicant had a number of documents in his possession which had later been translated.  The applicant claimed that these papers probably belonged to his uncle as they were in a wallet which his uncle had given to him.  There were four such documents:

(a)        an Afghan military service certificate dated in Kabul In 1966.  This document was translated from Pushtu;

(b)        a hand-written diagram of places surrounding Bazar Baba and a list of names for relatives, such as grandfather and uncle.  This document was translated from Dari;

(c)        hand-written financial calculations for the costs of hotel accommodation, tickets, food and clothing based on a rupee exchange to the dollar.  This document was translated from Urdu; and

(d)        hand-written financial calculations for a deposit and a ticket based on a rupee exchange rate for the dollar.  This document was also translated from Urdu.

5                     The applicant’s evidence to the Tribunal was interpreted from the Dari language.  The Tribunal noted that Urdu is not used in Afghanistan.  The evidence before the Tribunal was that the currency of Afghanistan is the Afghan, not the rupee.

6                     The Tribunal summarised the evidence given to it by the applicant including his responses to various questions, put to him by the Tribunal, which were designed to test his knowledge about Afghanistan and in particular the area from which he claimed to have originated.

7                     Rather than attempt to summarise the Tribunal’s findings and reasons, I set them out below in full:

FINDINGS AND REASONS

It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras. 196-197 and 203- 204).  However, it is necessary and appropriate that the Tribunal assess the specific claims advanced in support of an applicant's case, bearing in mind that:

     A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out (Selvadurai v TheMinister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347, at 348).

The Tribunal is not required to accept uncritically all claims made by applicants. In Randhawa v MILGEA (1994) 52 FCR 437 Beaumont J observed (at page 451) that a liberal attitude concerning proof of persecution in the context of an application for refugee status:

should not, however, lead to ‘an uncritical acceptance of any and all allegations made by suppliants’.

It was also stated in Chan (per McHugh J at 428) that under the 1951 Convention:

     "It was unlikely that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality.”

The Full Federal Court has ruled, in Kopalapillai vMlMA (1998) 86 FCR547, that the Tribunal must be sensitive to the special considerations that arise in the assessment of credibility issues in refugee matters.

More recently in Abebe vTheCommonwealth of Australia (1999) 162 ALR 1 the High Court observed:

     the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not for life. (per Gummow and Hayne JJ at [191]

The Tribunal has, in considering this application, been mindful of all these principles in assessing the applicant's credibility.  Nevertheless, the Tribunal has come to the conclusion that the applicant is not a credible witness.

The applicant has claimed that he is a national of Afghanistan.  He has also claimed that he is of Hazara ethnicity, and that he is a Shi’a Muslim.

The Tribunal notes the following information about Hazaras:

      The Hazara population, currently numbering about 1 to 1,5 million, are of unknown Central Asian, probably Mongolian, descent and have traditionally lived in their homeland of Hazarajat in central Afghanistan. Hazarajat consists of the northern pan of the Helmand valley and parts of the provinces of Ghor, Uruzgan and southern Bamian. There are also smaller Hazara communities in northern Bamian and Badakhshan. Since the middle of this century, quite a number of Hazaras have emigrated to Kabul and other major urban centres, in the first place as labourers or servants for the urban population, but since going on to get themselves educated and hold down more skilled jobs in towns and cities. Especially in large urban centres, however, the Hazara population have traditionally formed the lowest rung in the ethnic hierarchy. Both in their physical appearance and in their cultural customs, Hazaras show their Asian origins, but they speak a variant of Persian and most of them are Imami Shia Muslims. (Danish Immigration Service, Fact-finding mission to Afghanistan, 1 November-29 November 1997; published July 1998. Section 4 H1).  

      The Hazaras, numbering some 1.2 million, have traditionally been an underprivileged minority in Afghanistan. Unlike most Afghans, who are Caucasoid in appearance, the Hazaras have Mongol features - slanted eyes, high cheek bones, and sparse beards - which are the result of intermixing between the early Indo-Iranian inhabitants of central Afghanistan and the Mongols who swept through central Asia, starting with Genghis Khan in the 13th century. (CX 33997, Guerrillas and Refugees wage War on their own Disunity, by Tym Lenderking, The Christian Science Monitor, p.2, 26 January 1987).

The Tribunal is satisfied that the applicant is an Hazara. As noted by the language analyst, he speaks the Hazaragi dialect spoken by Hazaras, and he has the physical appearance of an Hazara. The Tribunal is also prepared to accept that the applicant is a Shi’a Muslim which is the faith of most Hazaras. He was able to satisfactorily describe differences in the religious practices of Sunni and Shi’a Muslims and showed familiarity with Shi’a religious leaders.

The Tribunal notes that there are Hazara communities outside Afghanistan, and in particular, that there are large numbers of Hazaras living in Pakistan. The Australian Department of Foreign Affairs and Trade has provided the following advice:

     According to an international organisation in Islamabad, there are between 120,000 and 160,000 Hazaras currently in Pakistan. Of that number, between 80,000 to 100,000 have Pakistani nationality - most if not all having been born in Pakistan, the remaining 40,000 to 60,000 are considered to be refugees.

     Eighty per cent of Hazaras living in Pakistan are located in the city of Quetta, with around the remaining 20 per cent located in other areas of the province of Balochistan. There are also small communities of Hazaras scattered in the North West Frontier Province and in the city of Karachi. (DFAT Country Information Report 97/00, 10 May 2000, CX41933)

The Tribunal is not satisfied that the applicant is an Hazara from Afghanistan or that he has lived in Afghanistan all his life prior to his departure for Australia as he has claimed. The Tribunal does not accept that the applicant is a national of Afghanistan for the following reasons.

The applicant was unable to describe the geography of the area he claimed to come from in Afghanistan in any detail at all, either in his interview with the delegate or in his Tribunal hearing. He claimed to have visited the nearby town of Balahingar on only a few occasions even though it was only half an hour's walk away, and could not say how large it was. He professed ignorance of every place in Afghanistan apart from his own village and the village of Baba where he claimed he worked as a tailor and where his uncle lived. Even though the applicant is young and says he is uneducated, in the Tribunal's view it is reasonable to expect him to have a far more detailed knowledge of the area where he claims to have lived for 18 years.

When the Tribunal asked the applicant about the history of the Hazara people in Afghanistan, the applicant responded that he knew nothing at all. When asked about recent events in Afghan history, in particular the situation after the soldiers from the former Soviet Union had withdrawn from the country, he denied that he had been born at that time. When told by the Tribunal that the Soviet forces had withdrawn in 1989 when he was eight or nine years old, the applicant continued to insist that he had not been born at that time. The Tribunal notes the following information which confirms that the Soviet forces withdrew from Afghanistan in 1989:

      Civil war broke out in Afghanistan in 1979 after Soviet troops invaded the country to back the communist government in power. Islamic and tribal groups opposed to the policies of the communist government and the Soviet occupation responded by mounting armed opposition. For ten years the country became a Cold War battleground, as Soviet and Afghan government troops fought against armed Islamic guerrilla fighters backed by the USA and its European allies, Pakistan, Saudi Arabia and Iran.

      After the Soviet withdrawal in 1989, fighting continued between government and opposition forces until the communist government finally collapsed in 1992. The fall of the government did not bring peace, however, as the loosely allied and fractious Mujahideen groups started fighting each other for control of territory and administrative institutions. Despite the formation of a coalition interim government, central political authority was weak and unstable, and Afghanistan plunged into lawlessness. (Amnesty International report,

      http://www.amnesty.org/ailib/aipub/1999/ ASA/31101299.htm, 11 November 1999, CX44544)

The Tribunal considers it reasonable to expect that an Hazara from Afghanistan would have known something about the history of his own people, and that he would have had at least some awareness of a significant, and relatively recent event, such as the withdrawal of Soviet troops from Afghanistan.

The applicant showed a lack of familiarity with the Afghan calendar, and was unable to place any event, including the year of his birth, within the Afghan calendar even when the Tribunal attempted to assist him to do so. He refused to estimate how old he was when he attended school for two months.

The Tribunal has considered carefully the responses of the applicant to questions put to him at his interview with the delegate and at his hearing with the Tribunal. The delegate has provided a detailed record of the reasons for his decision, and having reviewed the tape of the interview, the Tribunal agrees with the delegate's assessment that the applicant's knowledge of Afghanistan is limited.  In coming to this conclusion the Tribunal has taken into account the letter written by the applicant explaining why he had problems answering some of the delegate's questions. On the basis of the applicant's lack of familiarity with the part of Afghanistan from which he claims to have come, his lack of knowledge of recent events in Afghan history and his inability to nominate significant national days or to fix any date within the Afghan calendar, the Tribunal finds that the applicant is not from Afghanistan and has not lived there all his life until he came to Australia.

The Tribunal is strengthened in its view that the applicant has not been living in Afghanistan by the unsatisfactory account provided by the applicant of his situation in Afghanistan after the Taliban came. The applicant was unable to explain why he was working in his brother's tailor's shop in Baba if he was afraid of the Taliban finding him. At one point in the hearing he said he was in hiding in the mountains after the Taliban came, but when the Tribunal noted that he had claimed to have been working in the shop during this period, he said that the Taliban only came infrequently. He gave a detailed description of planting and harvesting wheat, but when the Tribunal suggested he would have been safer working on the farm than in the shop in the bazaar, he said that he did not know how to farm the land. When describing the place where the Taliban had kept him after he was arrested, he said that there were no other buildings near by. He later said that the guards were stationed in a small building near by. When the Tribunal asked why he had not left Afghanistan with his older brothers, the best explanation he could offer was that his mother loved him more than his brothers and wanted to keep him with her. These inconsistencies in the applicant's claims about events after the Taliban's arrival and his inability to satisfactorily explain aspects of the claims, reinforce the Tribunal's view that he was not in fact in Afghanistan at this time as he has claimed. The Tribunal does not accept that the applicant was ever in hiding from the Taliban or that he was arrested by them or that he escaped from their custody. The Tribunal finds that the applicant has fabricated the story to make a case for claiming to be a refugee.

The Tribunal has considered the documents which were in the applicant's possession when he arrived in Australia. The applicant has stated that the Afghan military service record belonged to his father. The Tribunal notes that the applicant has stated that his father's name was Mir Afghan (no family name) and that the military service document is in the name of Khudai Rahim Afghan, but in view of the discrepancy between the names, the Tribunal does not accept that this document did belong to the applicant's father or that it supports the applicant's claim that he is a national of Afghanistan. The applicant claimed at the hearing that the other documents in his possession - the financial calculations written in Urdu and the diagram showing the location of villages in the area where the applicant claims to have come from which was written in Dari - must have belonged to his uncle, who may have needed them when he travelled away from home for periods of up to one month. The applicant claimed that the papers were left by his uncle in the wallet which he gave to the applicant. The Tribunal does not accept this explanation. As agreed with the applicant at the hearing, the Tribunal has reviewed the tape of his interview with the delegate, and the applicant clearly said that his uncle only travelled on business to places near by and returned the same night. There would therefore be no requirement for the applicant's uncle to make financial calculations in Urdu, which is not used in Afghanistan, about the cost of hotels and tickets and exchange rates. The applicant's possession of these documents gives the Tribunal cause to doubt his claims that he is illiterate and that he had no knowledge of the countries he travelled through on his way to Australia.

The Tribunal notes that the language analysis states that the applicant's dialect/language variant may "with considerable certainty" be said to originate from Pakistan, the Quetta region. The applicant has stated that the analyst must not be familiar with the particular dialect of his area, and that the analysis is incorrect. The applicant has not, however, provided an alternative language analysis which supports his claims. The Tribunal agrees that there are issues concerning familiarity with the dialect of the area in question, and for this reason would not accept the language analysis as the sole determinant of whether or not the applicant is from Afghanistan. However, as the Tribunal has already found that the applicant is not from Afghanistan, it accepts the language analysis as being supportive of this finding.

Taking into account all of the above, the Tribunal finds that the applicant is not a national of Afghanistan, and that he has not lived there all his life prior to coming to Australia.  The Tribunal finds that the applicant has not been persecuted in Afghanistan in the past as he has claimed. As the Tribunal has found that the applicant is not a national of Afghanistan, and is not required to return there, his claims that he will be persecuted if he returns to Afghanistan are not well-founded. The applicant has not claimed that he will be persecuted in any other country.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

grounds of the application

8                     The applicant was unrepresented and does not speak English.  He faxed his application from the Immigration Detention Centre in Port Hedland.  The person who drafted the grounds of the application expressed them in the following terms:

“I am Moqbool Hussain an Afghan man from Afghanistan.  My religion is Sheia Muslim.  My race is Hazara.  The Taliban are Pushtoons.  They are killing us.  They put us in jail.  They burn our mosques.  I am not allowed to pray according to my religion practice etc so I am under persecution by Taliban.  Recently I left my country Afghanistan and I came here as asylum seeker.  Unfortunately the RRT didn’t grant me a protection visa.  There is a big mistake of RRT in decision.  Therefore if I return to my country the Taliban will kill me in one minute.  They are ruthless unsophisticated people and don’t have proper law so if I return the(y) will not leave a life one minute.  That’s why I applyed for Federal Court to return me back to RRT untill grant me a protection visa.  Then my life will be safe.”

9                     The applicant also (on 13 March 2001) faxed a letter dated 13 March 2001 to the Court containing his submissions.  He sent a further set of very similar submissions by fax to the Court on 27 April 2001.  Both sets of the applicant’s submissions take issue with the Tribunal's findings against him on credibility.  They also deal with factual matters.

10                  In my view, nothing proffered to the Court by the applicant is of any assistance in deciding this application.  That is to be expected.  I agree, respectfully, with the fairly recent observation of Stone J in Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 at par 13:

“… that in cases where an applicant is not legally represented the court takes a more active role than is usually the case.  This requires or involves the court in examining the reasons for the decision of which review is sought in order to ascertain for itself whether any reviewable error has been made.”

11                  When the matter first came on for hearing before me, on 2 April 2001, I raised certain concerns with Mr M T Ritter, of counsel, who appeared for the respondent.  The first was that if the application were dismissed, was there any prospect that the applicant would, nonetheless, be returned to Afghanistan.  I asked Mr Ritter whether the Minister was prepared to give an undertaking to the effect that this would not happen.  The Minister was not prepared to give such an undertaking, but Mr Ritter referred to the respondent’s discretion to allow a further application for a protection visa to be made.  Counsel suggested that it would be inappropriate for the respondent to give an undertaking which might hamstring that discretion.  Accordingly, I adjourned the hearing (having indicated a provisional view that the application was unlikely to succeed) to see whether arrangements could be made to repatriate the applicant to Pakistan on the basis that if it appeared that this could be done, that course might be put to the applicant to see whether he wished to proceed with this present application in those circumstances.  Another purpose of the adjournment was to ascertain whether the respondent might give an undertaking not to repatriate the applicant to Afghanistan and whether, if further information became available suggesting that the applicant is in fact a citizen of Afghanistan, the respondent would allow the applicant to make a further application for a protection visa. 

12                  At the resumed hearing of the application, on 30 April 2001, the respondent tendered an affidavit of Mr Wally Vlado Gotovac, a senior officer in the respondent’s Department.  That affidavit dealt with several matters.  First it exhibited a letter sent by the respondent’s Department to the High Commission for Pakistan in Canberra seeking assistance in the form of the issue of a travel document for the applicant.  Mr Gotovac swore that, based on his past experience (which is extensive), it was likely that the Pakistan High Commission would refer the applicant’s details to the relevant authority in Islamabad to identify him as a Pakistani national and that this was likely to take several months.  He said that if the applicant had not provided correct personal details, he may not be identified by the Pakistani authorities as a citizen of that country.  Mr Gotovac referred to his experience that failed asylum seekers who have no outstanding application before the respondent’s Department and who have exhausted all avenues of appeal, are often more forthcoming with details of their true identities and rights of residence.  This enabled the respondent’s Department to identify their nationalities and consequently obtain travel documents expeditiously.  He referred to more than 86 such cases having occurred since June 2000.  Mr Gotovac confirmed that the respondent was unable to give an undertaking that the applicant would not under any circumstances be removed to Afghanistan.  The position of the Department was that if the applicant is not identified by the Pakistani authorities as a citizen of that country, it would be obliged under the Migration Act 1958 (Cth) (“the Act”) to remove the applicant to another country, which could be Afghanistan if he is identified as a citizen of that country. 

13                  Mr Gotovac swore that officers of the respondent’s Department responsible for the applicant’s removal were -

“… acutely conscious of Australia’s obligation under Article 33 of the Refugees Convention not to expel or return (“refouler”) a refugee to a country where he or she may face persecution for a Convention reason”.

14                  Finally, Mr Gotovac swore as follows:

“11.  If new information is provided to the Department that establishes that the applicant is in fact a citizen of Afghanistan, officers of the Department would approach the respondent on behalf of the applicant and seek approval pursuant to s 48B of the Act for him to make a further application for a protection visa.”

15                  In those circumstances, bearing in mind this Court’s very limited jurisdiction for review of the Tribunal’s decision in this matter, I decided that it was my duty to proceed to decide whether the Tribunal had made any reviewable error.  I did not consider, as I had initially thought, that it was appropriate for this Court to exercise some discretion in postponing the delivery of judgment until it became clear that there was absolutely no risk of the applicant being returned to Afghanistan.  I decided that to take such a course would be to go beyond judicial review and trespass into the province of the Executive.  Accordingly, I now proceed to my reasoning in relation to the disposal of the application.

my reasoning

16                  The Tribunal's conclusion that the applicant did not have a well-founded fear of persecution was based on a finding that the applicant was not a national of Afghanistan, that he had not lived there all his life as claimed, and had not been persecuted in that country in the past as he had also claimed.  It found that the applicant would not be required to return to Afghanistan. 

17                  These were all findings of fact based to a considerable extent on the Tribunal’s assessment of the credibility of the applicant.  In its reasons the Tribunal set out the relevant law in an unexceptionable manner.  It showed its awareness of the need to take care in relation to credibility findings against refugee applicants.  It gave detailed reasons for its findings.  These were based on evidence that:

·          there were Hazara communities living outside Afghanistan and in particular in Pakistan;

·          the applicant was unable to describe properly the geography of the area from which he claimed to have lived in Afghanistan;

·          he did not know anything about the history of the Hazara people in Afghanistan and in particular the withdrawal of Soviet troops from that country;

·          he showed a lack of familiarity with the Afghan calendar and was unable to place any event, including the year of his birth, within that calendar. 

18                  The Tribunal considered that the applicant gave an unsatisfactory account of his situation in Afghanistan after the Taliban came to the area and that he had fabricated his story of hiding from them.  Then there were the problems, referred to above, about the documents which were found in his possession.  Finally, the Tribunal referred to the Swedish agency’s language analysis as supporting its earlier findings.

19                  I was concerned that in the very first line of its reasons for decision the Tribunal had stated “The applicant, who is a citizen of Afghanistan, arrived in Australia on 23 March 2000”.  [Emphasis added]

20                  I decided that, as the Tribunal’s reasons must be read beneficially and as the Tribunal made two express findings later in its reasons that the applicant was not a national of Afghanistan (and that was fundamental to its decision) the words which I have emphasised above should be read as “… who claims to be a citizen of Afghanistan.”

21                  I gave consideration to the question whether the Tribunal, having decided that the applicant was not from Afghanistan, was obliged to make a finding as to what was the applicant’s correct nationality or country of former habitual residence.  I considered whether that might be a material fact in the sense explained in Minister for Immigration and Multicultural Affairs v Singh (2000) 989 FCR 469 at pars 55-56.

22                  It was obvious to the Tribunal that the applicant was outside the country of his nationality (if he had one) and, if he did not have any nationality, that he was outside the country of his former habitual residence.  I wondered whether it was possible to find that, in those circumstances, the applicant did not have a well-founded fear of being persecuted for a Convention reason, without making a finding as to his actual nationality or country of former habitual residence.  The potential problem, as I thought it might have been, was that although the Tribunal found that the applicant was not from Afghanistan, it did not find, as some of the evidence suggested, that he was from Pakistan. 

23                  I have decided that a failure to make such a finding of fact in this particular case would not have given rise to what, on the current state of the authorities, would constitute reviewable error by non-compliance with s 430(1)(c) when read with s 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”).  That was because when the applicant presented himself at the Australian border as a candidate for refugee status, and at all times subsequently, he did so on the basis that he was a national of Afghanistan who had a well-founded fear of being persecuted on grounds of both race (Hazara) and religion (Shi’a).  He made no other claims to refugee status.  Once he was disbelieved on those claims there was nothing left in his application for refugee status.  In my opinion, in those circumstances, there was no legal requirement on the Tribunal’s part to go on and make a finding as to the applicant’s actual nationality.

24                  It seems reasonably clear from the translation of the military service certificate (page 68 of Exhibit R1) that the Tribunal has made a factual mistake in its conclusion that there was a discrepancy between the name which the applicant said was his father’s name and the name “Khudai Rahim” which the Tribunal thought was the name of the person who was the subject of that certificate.  The certificate shows that the name of the person whose military service it certifies was “Afghan” (which corresponds closely to what the applicant said) and that that person’s father’s name was “Khudai Rahim”, who the applicant identified in written submissions to the Court as his grandfather.

25                  But such a mistake (if it be one) does not, on the authorities, constitute reviewable error in the circumstances of this matter.  Even if it be assumed that the Tribunal’s decision on credibility (and hence its decision that the applicant was not a refugee from Afghanistan) was based on the existence of this particular fact (that there was a discrepancy in the names) and that that fact can be “a particular fact” within the meaning of that term in s 476(4)(b) of the Act, there was evidence or other material to justify the making of the decision: Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28] (a decision of a Full Court of this Court).  The Tribunal referred to that evidence and other material in its reasons which I have set out above.

26                  I would only add that I think it would be considered, by right-minded persons, to be unconscionable and unthinkable if the respondent were to cause the applicant to be removed to Afghanistan.  A very significant basis of the Tribunal’s decision was that as the applicant was not a national of Afghanistan he would not be required to return there.  In my view, to remove the applicant to Afghanistan without giving him an opportunity to make a fresh application for a protection visa would be to make a mockery of Australia’s compliance with the Refugees Convention. 

Conclusion

27                  For the foregoing reasons the application will be dismissed.

A/g Associate:

Dated:              4 May 2001