FEDERAL COURT OF AUSTRALIA

Naz v Minister for Immigration and Multicultural Affairs [2001] FCA 1591

JAWAD ALI NAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 164 OF 2001

O’LOUGHLIN J

12 NOVEMBER 2001

ADELAIDE

THE COURT ORDERS THAT:

1.         The matter be remitted to the Tribunal, differently constituted, to review the application for a protection visa according to law.

2.         The respondent pay the applicant’s costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     Jawad Ali Naz (“the applicant”) arrived in Australia on 8 April 2001.  He applied for a protection visa shortly thereafter but it was refused.  He then applied to the Refugee Review Tribunal (“the Tribunal”) to have that adverse decision reviewed, but again he was unsuccessful.  He now seeks from this Court its review of the Tribunal’s decision.

2                     Although it will be necessary to examine the circumstances surrounding the applicant and his application in some detail, the issue that must be resolved in these present proceedings can be shortly stated:  did the Tribunal commit a reviewable error when it concluded that it could not be satisfied that the applicant was born in Afghanistan or that he is a national of Afghanistan?

3                     The applicant claimed that he was born in the Jaqhuri district in the province of Ghazni in a village called Kondeh; it was said to be close to San-e-Mashar.  He said that he was aged twenty-six and that he was married with two children; his wife and the children have remained in Kondeh.

4                     The applicant gave evidence that his father was a trader at the Bazaar and that his mother was a housewife; he claimed that a brother had been taken by the Taliban and, so he asserted, later killed by the Taliban.  He also said that he had another brother and a sister, both of whom are still in Afghanistan.  He claimed that he had left Afghanistan and that he had travelled via Pakistan, en route to Australia, because of harassment by the Taliban and his fears of persecution by the Taliban.

5                     The applicant’s claim for refugee status suffered because of the many perceived inconsistencies in the oral and written statements that were attributed to him during the lengthy interview process.  That process commenced with his first interview by a departmental officer shortly after his arrival in Australia and it extended to and included questioning of him by the Tribunal member.  It is necessary to refer to statements having been attributed to him because he had no knowledge of the English language.

6                     The Tribunal made two important findings of fact that assisted the applicant in his efforts to obtain refugee status.  In the first place the Tribunal accepted that he was an Hazara and in the second place it accepted that he was a Shi’a Muslim.  The Tribunal recorded that the Hazaras are believed to be the descendants of Genghis Khan’s Golden Horde who arrived in Afghanistan in the thirteenth century; it went on to observe that their Mongol features – the slanted eyes, the high cheek bones and the sparse beards of the men – are said to make them easily distinguishable from Afghanis.

7                     The Tribunal spent much time tracing the shifting alliances that have come and gone in Afghanistan since the Russian invasion in 1979.  However, it is sufficient, for present purposes to note the Tribunal’s finding about the current relationship between the Taliban and the Hazaras:

“When the Taliban seized Mazar-i-Sharif in August 1998 they reportedly massacred several thousand Hazaras.  While one motive may have been revenge for the casualties inflicted on the Taliban in their previous attempt to capture Mazar-i-Sharif in May 1997, another motive appears to have been sectarian hatred for the Shia Muslim Hazaras.  The new Taliban Governor of Mazar-i-Sharif reportedly gave many anti-Shia, anti-Hazara speeches around Mazar-i-Sharif (Kazuhiko Fujiwara, ‘Massacre of Hazaras shows divisions in Islam’, The Daly Yomiuri, 21 November 1998, CX 34001; US State Department, Country Reports on Human Rights Practices for 1998 in relation to Afghanistan, Section 1.a, Political and Other Extrajudicial Killing).”

8                     The Tribunal recorded that the Danish Immigration Service takes the view that Hazaras “were a vulnerable group” and it also recorded that the Australian Department of Foreign Affairs and Trade “has advised that it would be unsafe for Hazaras to return to Afghanistan for fear of persecution”.

9                     The applicant participated in an exercise described by the Tribunal in its reasons as “a language analysis” on 23 May 2001.  An extract from the consequential report was quoted by the Tribunal and was in the following terms:

“The person speaks Dari was [sic: with?] a Hazaragi dialect.  This dialect is spoken in central parts of Afghanistan, in Baluchistan in Pakistan and in southeastern parts of Iran.  Hazagari is obviously his mother tongue and he uses typical local words … He seems to have a good religious and cultural knowledge but he does not know anything about the geographical location of Afghanistan, not even of the area he was living in …”

10                  It is difficult to know what weight should have been attached to that report.  Its author was not identified nor were the qualifications of the author.  Presumably he or she had expertise in the Dari language and the Hazaragi dialect but what expertise did the author possess with respect to the geography of Pakistan?  None is apparent from the Tribunal’s reasons yet the asserted inability of the applicant in this report to discuss with clarity certain matters of geography were held against him by the Tribunal.  There is a further matter to which reference must be made when considering this language analysis report.  It assists that applicant in his efforts to be accepted as an Hazara (for the Tribunal accepted that Hazaras are subjected to sectarian hatred by the Taliban) but it also said that there are Hazaras who live in parts of Pakistan and Iran who speaks in a similar dialect.  Perhaps the applicant came from one of those countries!

11                  In matters such as these, much depends on the impression that the Tribunal forms when an applicant gives his or her evidence – and when there has been a history of perceived inconsistencies it is easy to understand how a Tribunal member might form a jaundiced view about the authenticity of an applicant’s story.  In her reasons for her decision the Tribunal member referred to and acknowledged the many authorities in this Court which have counselled against taking too hard a line because of the inconsistencies in the stories that applicants for refugee status tell to the many interviewing authorities.  As Gummow and Hayne JJ observed in Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510 at 577:

“Secondly, 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 itself.”

12                  Yet, even so, I feel that the Tribunal has fallen into error.  The inconsistencies, with one exception that dealt with the number of times that the Taliban visited the applicant’s village, were peripheral matters.  The principal matters that were to be considered by the Tribunal included the identification of the applicant’s nationality and there was no inconsistency there.  Next, the Tribunal had to consider whether, because of one of the five convention reasons, there was a real chance of persecution.  There was no inconsistency there.  By implication, the Tribunal accepted that if he were an Afghani, his Hazara Shi’a background could justify a finding in his favour.

13                  The areas of inconsistency could in many cases just as easily have been called areas of misunderstanding – particularly having regard to the environment in which the applicant was questioned and the need for translators and interpreters.  For example, on one occasion he said that he used to travel to Sang-e-Mashur to buy goods, having elsewhere said that he had never worked.  Bearing in mind that his father was a trader in the Bazaar and that he accompanied his father to the Bazaar, this subject should have been further explored before concluding that there was an inconsistency or a contradiction.

14                  As the Tribunal pointed out, it relied on the totality of the inconsistencies in concluding that the applicant had “fabricated his claim for refugee status”.  It added that it could not be satisfied “that the applicant has ever been pursued by the Taliban or that his brother was killed by the Taliban”.

15                  However, in my opinion these conclusions were influenced impermissibly by relying upon an assertion in a “language analysis report” that the applicant had an inadequate geographical knowledge and by placing undue emphasis on those inconsistencies that were of peripheral importance only.

16                  A more important subject of inconsistency is the attendance on the applicant by members of the Taliban.  The Tribunal in its reasons said:

“In his entry interview the applicant stated that the Taliban came to his home on two occasions.  In his statement to the Department the applicant claimed that they came on one occasion while at his Tribunal hearing the applicant claimed that they came to the village – including his house – at lease once a week and sometimes more often.”

17                  Having regard to the fact that the attitude of the Taliban is the basic cause for the applicant’s asserted fear of persecution, one would normally expect a pattern of consistency to emerge from the applicant’s interviews when discussing the activities of the Taliban so far as they might affect him.  But, at the same time, it must be remembered that the applicant was a stranger in a strange land, striving to convince the authorities that he should be permitted to stay here, perhaps embellishing his story or changing it in the hope that it may persuade the authorities to favour him.

18                  The power of this Court on a review of a Tribunal’s decision is limited.  The grounds of review are those, and only those, that are contained in s 476 of the Migration Act 1958 (Cth) (“the Act”).  It is not sufficient for this Court merely to find dissatisfaction with the decision of the Tribunal.  In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Gleeson CJ and McHugh J at par 56 had this to say:

“No error of law was shown.  What emerged was nothing more than a number of reasons for disagreeing with the Tribunal’s views of the merits of the case.  The merits were for the Tribunal to determine, not for the Federal Court.”

19                  Ms Maharaj, counsel for the respondent, submitted that even if the decision contained unreasonable or illogical conclusions, this would not, in itself, be enough to demonstrate an error of law in the Tribunal’s decision-making process reviewable under s 476 of the Act.  In Brakni v Minister for Immigration and Multicultural Affairs [2000] FCA 1082 (Brakni) Lee J stated at par 20:

“Under the terms of s 476 of the Act, an unreasonable conclusion will not, in itself, permit an inference to be drawn that the decision-making process involved a error of law …”

I agree with this proposition.

20                  Of course, an arbitrary, capricious or wholly illogical decision which constitutes a complete failure by the Tribunal to perform the statutory function reposed in it by s 414 of the Act, could well provide a ground for review under s 476(1)(a) and perhaps s 476(1)(c) of the Act (see Lee J in Brakni at par 21).  Brakni was appealed (Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48) and Spender J (with whom Carr and Tamblyn JJ agreed) said at par 10:

“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.”

21                  Kenny J, sitting as a member of a Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 said:

“A tribunal such as the RRT does not commit an error of law merely because if finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning.”

That was a case where the Full Court was asked by the Minister to intervene because the review judge had questioned the sufficiency of the Tribunal’s explanation for its opinion about the circumstances in which the applicant came to leave his country of origin.  In this present application, there is no cause to question the sufficiency of the Tribunal’s reasoning:  it is quite clear.  The question in this case is whether that reasoning has disclosed an error of law.

22                  In Minister for Immigration and Multicultural Affairs v Yusuf [2001] 180 ALR 1 McHugh, Gummow and Hayne JJ said at [82]:

“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

23                  I have come to the conclusion that the Tribunal may have concentrated too much on inconsistencies in what I have called peripheral issues, and, in doing so, has identified wrong issues.

24                  The matter should be remitted to the Tribunal, differently constituted, to review the applicant’s application for a protection visa.  The Minister should pay the applicant’s costs.

Associate:

Dated:              12 November 2001