FEDERAL COURT OF AUSTRALIA

Hussein v Minister for Immigration & Multicultural Affairs

[2001] FCA 1651

Migration Act 1958 (Cth)

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 referred to

Long v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 183 referred to

Applicant C v Minister for Immigration & Multicultural Affairs [2001] FCA 229 referred to

MIRZA HUSSEIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 101 of 2001

MANSFIELD J

29 NOVEMBER 2001

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay to the respondent costs of the application to be taxed.

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 to review a decision of the Refugee Review Tribunal (the Tribunal) given on 20 June 2001.  The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant to the applicant a Protection (Class XA) visa for which he had applied on 24 January 2001, shortly after his arrival in Australia on 30 December 2000.

2                     To be eligible to be granted that visa, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that the applicant met the criterion for the grant of the visa specified in s 36(2) of the Migration Act 1958 (Cth) (the Act).  That is, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  In practical terms, in relation to the applicant, that satisfaction had to relate to the issue whether he is a refugee as defined in Article 1A(2) of the Convention, namely a person who:

“ … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3                     The Tribunal in its reasons for decision recorded the material claims of the applicant as made to officers of the respondent both in person and through his migration agent, and at the hearing before the Tribunal on 17 May 2001.  On each occasion he was interviewed, he had the assistance of an interpreter.

4                     The applicant claimed to be a 23 year old national of Afghanistan, of Hazara ethnicity and Shi’a religion.  He said that he had been born in Patto, a village which is a sub-village of Sawoosang in the Jaghouri district of Ghazni province of Afghanistan.  He claimed to be illiterate and “weak” minded.  He had been brought up in that area all his life, where his father was a wheat farmer, and he had worked only as a shepherd since reaching working age.  He said that he was married and had two children, and that his family was still in Afghanistan as well as eight siblings.

5                     The applicant claimed that he fled Afghanistan on 5 November 2000 on a false passport because of fear of the Taliban.  He said that the Taliban were nearing his village when he fled, and had the policy of killing persons of Hazaran ethnicity by using them to fight compulsorily or to clear land mines.  He also claimed that the Taliban had a policy of assaulting and punishing those of the Shi’a religion.

6                     The interview of the applicant with an officer of the respondent soon after his arrival in Australia had been recorded and had been submitted for linguistic analysis.  The analyst reported on 9 March 2001 that the applicant speaks Dari with an Hazaragi dialect, a dialect which is mainly spoken in Central Afghanistan but also in parts of Pakistan and Iran.  Having regard to the use of words and pronunciation of words, although noting that the recording available was a short one, the analyst reported the view that the applicant’s Hazaragi dialect is Pakistani.  The formal conclusion is that the applicant’s dialect/language variant as judged on the tape recording originated from the Quetta region of Pakistan, a conclusion which the linguist reached “with considerable certainty”.

7                     In recording the information provided by the applicant to the delegate of the respondent, the Tribunal noted that the applicant did not then know the traditional tribal structure of the Hazara people, nor how Hazara graves were marked, nor the date on which Hazara New Year (Nawruz) occurred.  The Tribunal noted that at that time the applicant also could not name the Afghan months, and that the applicant’s knowledge of places in the area he claims to have lived was very limited.  A number of matters of concern then raised by the delegate, and noted by the Tribunal, were the subject of a written submission made by the applicant’s migration agent in advance of the hearing before the Tribunal.  The Tribunal noted those submissions.

8                     Apart from information provided through or on behalf of the applicant, the Tribunal adverted to independent information concerning Afghanistan and the treatment of persons of Hazara ethnicity and of Shi’a religion in Afghanistan by the Taliban.  It noted that the Taliban is dominated by Pashtuns and that it is an ultra-conservative Islamic movement.  That information confirmed that the Taliban had policies which were adverse to those of the Shi’a religion.  It also noted that, although there was conflicting information on the topic, there was information which indicated that the Taliban targeted persons of Hazara ethnicity and mistreated them.

9                     Having referred to the information concerning the applicant available to it, the Tribunal then addressed its findings and conclusions.  It accepted that the applicant is of Hazara ethnicity.  It also accepted that he is of the Muslim Shi’a religion.  However, it had concerns about whether the applicant is a national of Afghanistan as he claims.  In addressing those concerns, it recognised that the assessment of the credibility and reliability of information provided by a visa applicant in the circumstances of the applicant is a difficult task, particularly having regard to difficulties in communication, the circumstances in which the applicant found himself, including what may have been a bewildering succession of procedures, and the fact of his detention.  The Tribunal also recognised that there are cultural characteristics which may make it difficult to fairly assess the reliability of evidence provided to it.

10                  Having reminded itself of those matters, the Tribunal nevertheless identified difficulties with several important aspects of the applicant’s claims.  Before addressing those aspects, the Tribunal referred to the linguistic analysis.  Because of the porosity of the borders between Afghanistan and neighbouring countries, and that the applicant’s Dari Hazaragi dialect is spoken both in Afghanistan and in Pakistan, the Tribunal discounted the language analysis as weighing in its conclusions.

11                  The Tribunal nevertheless then referred to certain matters which, so far as I can discern, were the difficulties with “several important aspects” of the applicant’s claims and which led the Tribunal to the conclusion that:

“Taken altogether, the difficulties with the applicant’s evidence mean that I have been unable to be satisfied that he has been truthful about his life and where he has lived.

I am unable to be satisfied from the evidence before me that he is a national of Afghanistan as he claims.”

Consequently, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution in Afghanistan.  He made no claim to have a well-founded fear of persecution from any other country.  He was not therefore, in the Tribunal’s view, a person to whom Australia has protection obligations under the Convention.

12                  The matters which appear from the Tribunal’s reasons to have represented the difficulties which taken together led to that lack of satisfaction on the part of the Tribunal about the applicant’s truthfulness are threefold. 

13                  The first is that, although he claimed to have lived in the village of Patto in the Jaghouri district, and took his animals to the mountains on a daily basis involving a journey walking of some four hours or so, he did not know the names of any of the places which he passed along the way.  That led to the Tribunal considering that he either did not travel from Patto past villages to the mountains as he described, or that he chose not to tell the Tribunal of the names of those villages, in an attempt to demonstrate that he was a “simple person who knew very little about his surroundings”.  Secondly, even accepting that the Taliban took control of the area including Patto on a peaceful basis, as the applicant described, the Tribunal found it difficult to accept that Taliban members had not visited Patto itself, a town of some 500-600 houses.  The Tribunal’s third difficulty arose from the way the applicant gave evidence.  The applicant told the Tribunal that he had been selected by his brother to be the person who should leave Afghanistan because the applicant was an impatient person who spoke his mind, and so was the one member of the family most likely to come to the adverse attention of the Taliban if they came to the area.  The Tribunal found that that evidence did not sit well with the applicant’s demeanour at the hearing.  He was apparently composed, courteous and articulate.  Moreover, the Tribunal found that his explanation for why he was selected by his family to be the person who should escape from the Taliban did not sit well with the applicant’s claim to be completely uneducated and illiterate with a “weak brain”.

14                  It is not for the Court to form a view as to whether the Tribunal’s reasons, so far as they are disclosed, for rejecting the applicant as a reliable reporter of facts are sufficient to satisfy the Court, or some other person, of the strength of the conclusion.  Having noted those three points, the Tribunal was clearly aware of the need to be cautious in reaching a conclusion about the applicant’s credit worthiness.  It said:

“The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992 para.196) states that if an applicant’s account appears credible, then they should, unless there are good reasons to the contrary, be given the benefit of the doubt.  However, it also states that the benefit of the doubt should only be given when the examiner is satisfied as to the applicant’s general credibility.  ‘The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.’.”

It was in the light of that caution that the Tribunal nevertheless expressed itself as being unable to be satisfied that the applicant had been truthful about his life and where he had lived.

15                  The applicant was not represented at the hearing of this application for judicial review.  His application for review to the Court did not identify any grounds of review which could be understood as relating to a ground of review available under s 476(1) of the Act.  It really only asserted that the Tribunal’s decision was wrong.  The applicant did provide a written submission to the Court.  Apart from repeating his claims about his background and about the reasons why he left Afghanistan, that document complained:

(1)               That the interpreter who assisted when the applicant was interviewed by the respondent’s officer was biased against the applicant by reason of an anti-Hazaran attitude, and so misinterpreted the applicant’s claims to his disadvantage.

(2)               That the interpreter who assisted at the applicant’s hearing before the Tribunal was non-Hazaran and so was unable to interpret adequately.

It also contended that, whilst the Tribunal had referred accurately to the evidence the applicant had given upon which it based the first and second of the three difficulties with the applicant’s evidence referred to above, it had not done so fairly.  The applicant claimed that he could describe the local geography where he lived and worked in intimate physical detail, even if he could not put names to the villages and other areas through which he passed on the way to the mountains.  He also adhered to what he had told the Tribunal, that the Taliban had not come to his village, and pointed out that it was putting its efforts into war and territorial annexation.  In fact, the Taliban were not reported by the applicant as having had much impact upon the applicant’s way of life, or that of his family including the female members of his family, when they peacefully annexed the area where the applicant lived.  That is material which the Tribunal considered did not lie easily with the independent evidence of the Taliban’s influence and behavioural requirements  in the areas of Afghanistan which it controlled.

16                  Apart from the matters raised by the applicant, I have also considered the Tribunal’s reasons to determine whether any possible reviewable errors emerged which require detailed consideration.  I adopted that course because the applicant, given his language difficulties, his lack of legal knowledge, and his circumstances, was clearly disadvantaged in presenting his claim for review.  I did not discern other matters which required consideration by the Court in the light of the grounds of review available under s 476(1) of that Act.

17                  In my judgment, the complaint concerning the quality of, or motivation of, the interpreter when the applicant was first questioned by an officer of the respondent does not establish reviewable error by the Tribunal.  In the first place, that process is not one under the control of the Tribunal, so that even if inadequate interpreting was established at that point, that would not demonstrate that the Tribunal had fallen into error.  That step in the process of consideration of the claim for the protection visa was not a procedure which the Tribunal was required to follow in making its decision:  cf s 476(1)(a).  Secondly, the Tribunal’s reasons for not being satisfied as to the applicant’s claimed Afghani nationality were not based upon information provided by the applicant at that first interview.  As its reasons themselves indicate, the Tribunal’s views were formed essentially on the basis of what the applicant told the Tribunal at the hearing on 17 May 2001 and how the applicant then responded to questions of the Tribunal.  Finally, the alleged inadequacy of the interpreting at that time is not made out as a fact.  It is not sufficient for the applicant to make the assertion of inadequacy in the interpretation.  He did not seek to demonstrate any such inadequacy.  I have reviewed the material before the Tribunal to determine whether any foundation for the claim might exist.  There are no complaints made by the applicant to the Tribunal about the quality of the interpreter provided at his initial interviews until the hearing before the Court.  In my view, no such foundation is apparent.  At the interview on 13 January 2001, the applicant said he spoke Farsi and Dari.  He acknowledged that he understood the interpreter.  The record of that interview does not suggest any inability to convey the applicant’s comments.  The questions and his answers are recorded in what appears as a consistent and coherent manner.  Similarly, the applicant completed his application for a protection visa on 24 January 2001 with the assistance of a Dari interpreter; that document does not give any indication of the applicant’s version of events being frustrated in its expression in any way.  Similar comments apply to the applicant’s interview with the delegate of the respondent on 31 January 2001.  He was assisted at that time by a registered migration agent, so any concerns about the quality of interpreting could then readily have been raised.  No such concerns were raised.  Accordingly, I do not accept that complaint, both because it is not established factually and because it could not in any event enliven any available ground of review under s 476 (1) of the Act.

18                  I am also not satisfied that the Tribunal committed reviewable error by providing an inadequate interpreter at the hearing before the Tribunal.  In my view, the complaint is simply not made out.  When responding to the invitation to attend the hearing, the applicant (through his migration agent) asked for a Dari interpreter.  His migration agent, in the written submissions to the Tribunal, asserted that he spoke Dari.  A Dari interpreter was provided.  At the hearing, at an early stage, the applicant in response to questions from the Tribunal said that he could understand the Dari interpreter.  The applicant was told by the Tribunal to indicate if he had any difficulty during the hearing understanding the interpreter.  He did not raise any difficulty.  Assuming in favour of the applicant that the Tribunal was obliged by s 424 and s 424A of the Act to provide a competent and independent interpreter for the applicant at the hearing (see e.g. Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; Long v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 183), the Tribunal is not shown to have failed to meet that obligation.

19                  The other matters referred to by the applicant do not amount to grounds of review available under s 476(1) of the Act.  They are an attempt to have the Court reconsider findings of fact by the Tribunal by reviewing the evidence upon which those findings of fact were made and by now seeking to assert evidentiary material or arguments which were not in precisely those terms put before the Tribunal.  In my view the Tribunal is not shown to have erred in any reviewable way by having reached the conclusions of fact which the applicant now seeks to revisit.

20                  For those reasons, in my judgment, the application must be dismissed.  The applicant should pay to the respondent costs of this application to be taxed.

21                  I note that this is a matter in which there is now no determination as to the applicant’s nationality.  The Tribunal was satisfied that he is of Hazaran ethnicity and of the Shi’a religion.  It affirmed the decision of the delegate of the respondent because it was not satisfied that the applicant is a national of Afghanistan.  The respondent could not now send the applicant to Afghanistan without considering Article 33 of the Convention, effectively requiring an assessment of his claim to have a well-founded fear of persecution by the Taliban in Afghanistan by reason of his ethnicity or religion.  As counsel for the respondent pointed out, the applicant may be sent to another country if he would be received there and if, by sending him to that country, Australia would not be in breach of Article 33 of the Convention.  Counsel for the respondent rightly said that such issues are for the respondent to address.  They are not matters directly relevant to this application.  The circumstance is one which has not gone unremarked in other matters;  see e.g. per Carr J in Applicant C v Minister for Immigration & Multicultural Affairs [2001] FCA 229.

22                  The orders of the Court are that the application be dismissed and that the applicant pay to the respondent costs of the application to be taxed.

Associate:

Dated:              22 November 2001