FEDERAL COURT OF AUSTRALIA

Abedi v Minister for Immigration & Multicultural Affairs [2001] FCA 1081

No question of principle

Ex parte Durairagasingham (2000) 168 ALR 407 cited

Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 applied

W63 v Minister for Immigration & Multicultural Affairs [2001] FCA 890 referred to

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

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 140 ALR 1 referred to

Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 referred to

ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955 referred to

Minister for Immigration & Multicultural Affairs  v Al-Miahi [2001] FCA 744 referred to

Migration Act 1958 ss 420(2), 430(1)(d), 476(1)(g), 476(4)(a), (b)

ALI JUMA ABEDI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 104 OF 2001

HELY J

10 AUGUST 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application under Part 8 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision made by the Refugee Review Tribunal (“RRT”) on 15 March 2001.  That decision affirmed a decision of the Minister’s delegate not to grant a protection visa to the applicant.

2                     The applicant claims that he is a citizen of Afghanistan who lived in a village populated by members of the Hazara ethnic group.  He is a Shi’a Muslim, and his occupation is that of a shepherd.  He claims that about two years ago the Taliban took control of the area, and began arresting the young men and sending them off to the front line of their war.  Around that time the applicant’s father went missing.  People in the village told the applicant’s family that the Taliban had taken him.

3                     The applicant claims that in September 2000, the applicant’s mother told him that he had to leave Afghanistan before he was also arrested by the Taliban.  His mother arranged his marriage to Nadia, and her father arranged a smuggler and paid the money for the applicant to leave Afghanistan.  In November 2000 the applicant claimed to have been “smuggled across the border”, and to have entered Pakistan illegally.  From Lahore he flew to Indonesia using a false passport.  He arrived in Australia by boat on 17 December 2000 without any travel documentation.  He was detained in the Curtin Detention Centre.

4                     The applicant claims that he fled from the Taliban in Afghanistan to save his life.  He said that he used a false, dark green passport on his voyage to Australia.  He did not know what name was on the false passport, as the smuggler told him not to open it.

5                     The Department of Immigration & Multicultural Affairs (“DIMA”) had in its possession (CB 49-50) a photocopy of a Pakistani passport bearing a photograph apparently that of the applicant.  According to the Minister’s delegate (CB 56), the passport appeared to have been issued on 16 October 2000.  Again, according to the delegate (CB 57): “Intelligence reports obtained by the Department indicated that there were many Pakistanis posing as Afghans among the Protection Visa applicants in Australia”.  According to a file note at CB 66 Indonesian authorities intercepted a bus load of “boat people” and took their passports for checking.  The passports were photographed and then returned to the occupants of the bus.  Copies were then passed on to the Australian authorities.  The document at CB 49-50 is one of these copies.

6                     By letter sent to the applicant on 16 February 2001 (CB 75) the applicant was advised:

“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 information is as follows:

The Tribunal has received information that the Indonesian authorities intercepted a group of people in Indonesia and photocopied their passports.  One of those passports that has been photocopied has a photo in it that you have identified as being your own.  It notes the holder’s usual address as Quetta in Pakistan.  The passport is a Pakistani passport.

This information is relevant because it suggests that you were in Indonesia with a Pakistani passport which suggests you are a national of Pakistan not Afghanistan.

You are invited to comment on this information.  Your comments are to be in writing and in English.”

7                     The applicant’s response to this enquiry (CB 78) was as follows:

“I write this letter in response to your enquiry pertaining my passport.  Naturally, any person travelling abroad needs travel documents such as passport.  However, Afghans are exception to this rule due to the fact that the ruling authorities persecute certain race such as myself.  Therefore, most Afghans are forced to cross the borders to neighbouring countries without a passport.  Once these Afghans arrive in either Pakistan or Iran, they have no choice but to seek assistance of a smuggler who then arrange false documents for them to travel to their final destinations.

These smugglers usually arrange and keep the travel documents during the course of the journey.  It has happened that these smugglers use the same travel documents over and over by changing the photos.  I was one of these Afghans as I have explained in my interview.

Pertaining the passport you have pointed out, I must state that I have no information as it was the first time I have travelled overseas.  Besides, the smuggler never let me have my passport.  I don’t know how the Indonesian police has obtained this passport.  Furthermore, I am not sure that the photo belongs to me as the photocopy is not clear.

If I have acknowledged previously that the picture resembles me, this doesn’t mean that it is my photo.  Besides, this acknowledgment was partly arranged by the Interpreter who recommended me to say ‘yes’ because it would help my case.

If you can provide my fingerprints, I would be satisfied.  Otherwise, I must say that I don’t know whose passport it is!”

8                     On 8 March 2001 a further response was prepared with the assistance of a migration agent.  It was as follows (CB 82):

“In response to your letter regarding the Passport.

Firstly the passport is not mine.  The photo was not of me, when questioned I replied no, however the interpreter said I must say yes or otherwise I could be jailed for 10 years.

I have never lived in Quetta in Pakistan.  I only transited in Pakistan for 5 days.

The smuggler prepared the passports, the passport was a green colour.  I said at my interview it was dark green.  I never hid that fact.  I noticed that all of the people had the same colour.  None of us come from Pakistan just had the passports prepared and bought in Pakistan.”

RRT’s decision

9                     RRT noted that the applicant initially denied to the Minister’s delegate (CB 94) that the photograph on the Pakistani passport was his, but then acknowledged to the delegate that it was his photograph (CB 96 – and at CB 56).  In the letter to RRT of 8 March 2001 the applicant asserted that “the photo was not of me”.  He told RRT that “the interpreter either purposely misinterpreted his answer when asked if it was his photo, or put pressure on him to say it was his photo”.  RRT did not accept that a professional interpreter would behave in that way.  RRT found that when the Indonesian authorities photocopied the Pakistani passport, it contained the applicant’s photograph (CB 97).

10                  Nor did RRT accept the applicant’s other explanation that he gave his photograph to the smuggler who re-used it by giving a passport containing it to someone else to use, and that it was the someone else who was intercepted by the Indonesian authorities (CB 96).

11                  The evidence in relation to the Pakistani passport “together with the applicant’s other contradictions and lack of knowledge about aspects of his claimed life in Afghanistan” led RRT to conclude that it was not satisfied that the applicant was from Afghanistan and that he had fabricated his claim to refugee status.

12                  The “contradictions” referred to by RRT consisted of the applicant’s explanations in relation to the passport.  The “lack of knowledge about aspects of his claimed life in Afghanistan” consisted of:

-                     not knowing how often the market in the nearby village was held, or when market day was, even though the family earned their income from selling dairy products at the market;

-                     inability to provide the dates according to the Afghan calender for events such as when his father’s disappearance occurred, even though he knew what the current year was according to that calendar;

-                     vague and scant knowledge of the circumstances of his father being taken by the Taliban.

13                  The passport suggested that the applicant is from Quetta in Pakistan.  The Department of Foreign Affairs and Trade (“DFAT”) information indicates that there are between 120,000 and 160,000 Hazaras currently in Pakistan.  Of that number between 80,000 to 100,000 have Pakistani nationality.  However, it was not necessary for RRT to determine finally where the applicant is from or of which country he is a national.  RRT was not satisfied that he was a national of Afghanistan, and he did not make claims in relation to any other country.

The proceedings in this Court

14                  The application for an order of review filed on 10 April 2001 does not specify the grounds on which review is sought.  The applicant claimed to be aggrieved by RRT’s decision because:

“The photocopy of passport is not mine.  It photocopy of Pakistani passport would be so big problem.  There were also people with Pakistani photocopy passport, they were given visa from the case officer, but I am Afghani and from Afghanistan.  On the third interview the interpreter threat me to tell it is your picture on the passport though it is not mine.  He said otherwise you will jail for ten years.”

A note sent by the applicant on 26 June 2001 asserted that this “had been written wrong” and should be deleted.  An order was made on 4 May 2001 that the applicant file and serve before 1 June 2001 a written statement why he considers RRT’s decision is wrong, but this direction was not complied with.

15                  On 3 August 2001 a document styled “Notice and Grounds of Appeal” was filed which contains the grounds on which the applicant now relies.  Those grounds are:

“1.       The Respondent committed an error of law in that there was no evidence or other material to justify the making of the decision in the manner effected by the Refugee Review Tribunal, pursuant to section 476(1)(g) of the Migration Act 1958.

2.                                          Further, or in the alternative, the respondent committed an error of law in that the decision was an improper exercise of the power conferred by the Migration Act 1958, pursuant to section 476(1)(d) in that the Refugee Review Tribunal when making its decision on the application of the Applicant did not set out findings on material questions of fact as required by section 430(1)(c) of the Migration Act 1958.”

The document does not contain any particularisation of those grounds.

16                  The applicant’s written submissions criticise the decision reached by RRT as to the applicant’s credibility.  The submissions seek to explain why an Afghani refugee might enter Indonesia on a Pakistani passport, which was described in the submission as the “natural choice” for a smuggler transporting an Afghani.  The submission refers to the detailed account given by the applicant of his life in Afghanistan, and to the fact that he spoke through an Afghani interpreter without apparent difficulty.  It criticises RRT’s reasoning process on the grounds that it lacks cogency.

17                  The decision of the Tribunal depended to a large degree upon its assessment of the applicant’s credibility.  The assessment of credibility is for the Tribunal of fact to determine (Ex parte Durairagasingham (2000) 168 ALR 407 at [67]) per McHugh J.  RRT is the body which is entrusted with the determination of the merits of the application, and this Court is not entitled to embark upon a merits review.  In Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 at [10] the Full Court said:

“ It is not an error of law, within the grounds of review set out in s 476 of the Act, that conclusions of fact drawn by the Tribunal are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion.”

Thus, supposed lack of cogency in RRT’s reasoning process on the issue of the applicant’s credibility does not disclose a reviewable error.

18                  The applicant’s written submissions also assert that RRT proceeded on the basis that many Pakistanis dishonestly apply for refugee status by claiming to be Afghanis, that the applicant entered Indonesia on a Pakistani passport, and therefore that the applicant is a Pakistani applying for refugee status under the pretence that he is an Afghani.

19                  If that were RRT’s reasoning process, it may well have involved an error of law.  As French J pointed out in W63 v Minister for Immigration & Multicultural Affairs [2001] FCA 890 at [26] and [27], the determination of whether a person has a well-founded fear of persecution for a Convention reason is not to be informed by generalisations about categories of persons.  However, that is not what RRT did.  The applicant failed not only because he entered Indonesia on a Pakistani passport, but also because RRT did not believe the various explanations which he gave about that matter, and because, in RRT’s assessment, deficiencies in his knowledge of matters in relation to Afghanistan were such that RRT was not persuaded that he was a national of that country.

20                  In oral submissions, the applicant’s counsel criticised RRT because it was “not proven” that the passport was a Pakistani passport, or that the photo on it was that of the applicant.  Reference was made to its grainy character, and as to how the applicant might genuinely entertain reservations as to whether it was his photo.  RRT is not bound by the rules of evidence (s 420(2)) and may take into account materials which it regards as probative, whether or not those materials would be admissible in a Court in accordance with those rules.

21                  Other criticisms raised in oral submissions were:

-                     RRT failed to comply with s 430(1)(d) in that it did not quote the source materials which were the basis for its conclusion that inconsistent explanations had been given in relation to the passport;

-                     RRT addressed the wrong question, because it failed to make a finding as to whether or not the applicant was a Pakistani.  The question which RRT was required to address is: what is the applicant’s nationality?  Had RRT addressed that question it could not have concluded, as it did, that it was not necessary for RRT to finally determine where the applicant is from or of which country he is a national;

-                     RRT ignored relevant material, namely the comprehensive and credible account which the applicant gave of his life in Afghanistan;

-                     RRT took into account irrelevant material, namely trivial inadequacies in the applicant’s knowledge of conditions in Afghanistan.

22                  None of these criticisms is made good.  RRT identified the inconsistent explanations in terms of what they were, and when and to whom they were given.  RRT was not required to do more.  RRT’s introductory observations, and its conclusion, demonstrate that it asked and answered the correct question.  The applicant claimed to be a national of Afghanistan, and RRT was not satisfied that he had made good that claim.  It was not required to go on and enquires whether the applicant was a national of some other, and if so which, country, because the applicant has not made any claims as to any country other than Afghanistan.  In Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523, a case which has many similarities to the present, Carr J held that once RRT rejected the applicant’s claim to be a national of Afghanistan, there was no legal requirement that RRT should make a finding as to his actual nationality.  RRT did not “ignore” the material referred to – it was simply not persuaded by it.  Nor can the assessed lack of knowledge of conditions in Afghanistan be meaningfully characterised as an immaterial consideration simply because, in the applicant's contention, RRT ought not to have been persuaded by it.

23                  In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 140 ALR 1 McHugh, Gummow and Hayne JJ said at [74]:

“… the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

See also Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736; ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955.  A relevant consideration was whether the applicant was a national of Afghanistan as he claimed.  That was a consideration which RRT was bound to address, and which it did address.

24                  Finally, the applicant relied upon s 476(1)(g) of the Act and asserted that there was no evidence or other material to justify the making of the decision.  It is hard to see how s 476(1)(g) is enlivened when the decision is one of lack of satisfaction that the relevant criteria for the grant of a protection visa have been made out.  Further, s 476(1)(g) is not to be taken to have been made out unless s 476(4)(a) or (b) is satisfied.  It was submitted that the “particular matter” in s 476(4)(a) was the nationality of the applicant.  That is not so.  Section 476(4)(a) is only enlivened where there is a precondition to the making of a decision and there was no evidence or other material from which the decision-maker could reasonably be satisfied that the precondition was established.  Section 476(4)(a) can have no relevant application here.  Section 476(4)(b) is enlivened where the decision-maker based the decision on the existence of a particular fact, and that fact did not exist.  The “particular fact” is said to be that the applicant travelled to Indonesia on a Pakistani passport.  I leave aside the question as to whether RRT “based” its decision on that fact.  Assuming it did there was material before RRT as to that fact, and the applicant has not established that this fact did not exist.  For both of those reasons, this ground fails.  The relationship between s 476(1)(g) and s 476(4)(b) was explained by a Full Court in Minister for Immigration & Multicultural Affairs  v Al-Miahi [2001] FCA 744 at [35].

25                  The application should be dismissed with costs.

Associate:

Dated:              10 August 2001