FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural Affairs [2001] FCA 1677

Migration Act 1958 (Cth) ss 65(1), 425, 476(1)

Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 applied

MUHAMMAD ALI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 111 of 2001

MANSFIELD J

3 DECEMBER 2001

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent costs of the application.

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) made on 23 July 2001.  The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant to the applicant a protection visa, for which he had applied under the Migration Act 1958 (Cth) (the Act) on 22 January 2001 shortly after his arrival in Australia on 31 December 2000.

2                     To be eligible to be granted that visa, the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant was a person to whom Australia had 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, that means that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant 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 applicant claimed to be a citizen of Afghanistan, of the Shi’a religion, and of Hazaran ethnicity.  He claimed to have left Afghanistan because of oppression by the Taliban.  He said that he had spent a year in the mountains away from his village avoiding the Taliban, because they wanted to take him to war.  If he were to return to Afghanistan, he feared that his life would be in danger as the Taliban would either kill him or conscript him to fight.  He said that the Taliban would take him and send him to the front line because of his religion and ethnicity.

the tribunal’s decision

4                     The Tribunal accepted that the applicant is of the Shi’a religion and is an Hazara.  However, it was not satisfied that the applicant has ever lived in Afghanistan or is a national of Afghanistan, and consequently it was not satisfied that he was ever at risk of being recruited, arrested or killed by the Taliban.  It made no positive finding as to the country of his nationality.  The reason that the Tribunal was not satisfied that the applicant was a national of Afghanistan was because it took a firm adverse view as to his credibility.  It found that the applicant had deliberately sought to mislead the Tribunal as to his circumstances, that he was an unreliable witness, and that his evidence was not credible.  It gave reasons for those views.  It then concluded:

“If considered in isolation, each of the problems with the applicant’s evidence might not be determinative of the lack of credibility of his claims.  However, when the overall unsatisfactory nature of the applicant’s evidence is considered, I am led to conclude that he has fabricated his claim to be a Hazara from Afghanistan in an attempt to create for himself the profile of a refugee.  In the circumstances, I cannot be satisfied that the applicant has ever lived in Kandahar province as he has claimed.  The applicant did not claim that he had ever lived in any other part of Afghanistan.  I therefore cannot be satisfied that the applicant has ever lived in Afghanistan.  As I cannot be satisfied that the applicant has ever lived in Afghanistan, I cannot be satisfied that he is a national of Afghanistan, that he was ever at risk of being recruited, arrested or killed by the Taleban, or that he was smuggled out of Afghanistan.”

Having reached that view as to the past, it followed, as the Tribunal said, that it was not satisfied that he has a well-founded fear of persecution for a Convention reason in Afghanistan.

5                     The consequence of the Tribunal’s decision is that there has been no adjudication by it upon whether the applicant has a well-founded fear of persecution if he were to be sent to Afghanistan.  The Tribunal has not addressed his claims on the basis that he is a national of Afghanistan.  It has not determined whether, if he were to be sent to Afghanistan, he has a fear that he may be subject to victimisation in some form by the Taliban, or whether that fear if it exists is well-founded, or whether that fear if it exists is by reason of his ethnicity or his religion.  In those circumstances, the respondent would not appear to be in a position to send the applicant to Afghanistan even though he claims it to be his country of nationality, at least without those issues being addressed because of Article 33 of the Convention.  Nor has the Tribunal expressed any satisfaction on the question of the applicant’s nationality.  It has not referred in its reasons to any information suggesting that the applicant is a national of some other country.  The respondent in the light of the findings of the Tribunal would be entitled to send the applicant back to some other country than Afghanistan provided that country is prepared to accept him and provided that Article 33 of the Convention was not thereby infringed.  Those matters now confronting the respondent do not, however, indicate that the Tribunal erred in law in a reviewable way in making its decision.  The obligation of the Tribunal is to be satisfied as to whether the criteria for the grant of the visa exist, and if it is not satisfied that those criteria exist, it is directed by s 65(1) of the Act to refuse the visa.

the grounds of review

6                     The applicant appeared in person on this application.  Neither his notice of application to the Court, nor his affidavit in support of that application, identified any grounds of review which could be related to the available grounds of review specified in s 476(1) of the Act.  That is hardly surprising, given his inability to speak English, his apparent substantial illiteracy, and his lack of education, as well as his lack of legal knowledge.  He did, however, with the assistance of another detainee in the Woomera Immigration Detention Centre, provide a written submission to the Court which was supplemented by his oral contentions before the Court.  As has become the practice in the Court, I have also, because of his circumstances, considered the reasons for decision of the Tribunal to determine whether any clear reviewable error emerges.

7                     The applicant contended that the Tribunal erred in not being satisfied that he was born in the village of Darbish near the city of Quandhar (Kandahar) and that that error was caused through interpreting difficulties.  He claimed that he speaks Dari with an Hazaragi accent, and that no proper allowance had been made for that “language” complication.  He asserted that he challenged the reliability of the interpreter, at the time of the initial interview with an officer of the respondent at which “deliberate technical mistakes” were made by the interpreter.  He criticised the material from a linguistic analyst that he was using a Dari dialect occurring in Pakistan, and said that the linguistic analyst’s conclusion was erroneous because the quality of the recording on which that linguistic analysis was conducted was poor. 

8                     There appear to be two linguistic analyses provided to the delegate of the respondent, and to the Tribunal.  The first is dated 9 April 2001.  It described the applicant as speaking Dari, but using words and expressions that are typically Hazaran.  That expert could not give an opinion as to the country of socialisation of the applicant upon the basis of the available recording.  Only 20 minutes recording of the 115 minutes of the interview was available, and the sound quality was bad.  That report said that it was difficult, if not impossible, to hear what the applicant said.  That report is not a matter which the Tribunal took into account in reaching its decision.  Its conclusion is not adverse to the applicant’s claims.  The applicant’s concerns about the Tribunal having had regard to that report in not being satisfied that he is a national of Afghanistan as he claimed is therefore misplaced.  The other linguistic analysis report is dated 18 April 2001.  It too commented upon the poor quality of the recording, making it difficult to hear what the applicant said.  It reported on the applicant’s language background as follows:

“The speech on the tape is Dari and the person speaking most probably uses the dialect occurring in Afghanistan.”

That report confirmed that the applicant speaks Dari with an Hazaragi accent and that his dialect is most probably the one spoken in Afghanistan.  It also observed that there was nothing in the recording which indicated that the applicant has his language background in any other country than Afghanistan.  That linguistic analysis, contrary to the applicant’s apparent understanding of it as being adverse to his claim, clearly supports his claim as to his national background, or is consistent with the claim that he is from Afghanistan.  The Tribunal in its reasons noted that linguistic analysis.  However, ultimately that information did not satisfy it that the applicant was from Afghanistan.  The Tribunal expressly said that it did not consider that that linguistic analysis report outweighed the other significant problems with the applicant’s evidence.  That report also is not, therefore, a matter which the Tribunal had regard to adverse to the applicant’s interests.  Again, in my view, the applicant’s understanding of the effect of that report is erroneous and his concerns about the use to which it was put is misplaced.  The Tribunal is not shown to have fallen into reviewable error in the way in which it approached the linguistic analysis.

9                     The suggestion by the applicant that, somehow, the Tribunal’s decision was tainted by some inadequacy or impropriety in the process of interpretation at an earlier stage in the course of the hearing also is not, in my judgment, made out.  The Tribunal was obliged to provide to the applicant an invitation to appear before it at a hearing: s 425.  The applicant accepted that invitation.  At the time the applicant was represented by a legal practitioner as his migration agent.  As is the Tribunal’s practice, it invited the applicant to nominate whether he required a hearing, and if so whether he required the assistance of an interpreter.  On 13 June 2001, his solicitors accepted that invitation and indicated that he required a Dari interpreter at the hearing.  On 14 June 2001, apparently independently of his solicitors the applicant responded accepting the invitation to attend the hearing, and requested an Hazaragi interpreter.  In the written submission made by the applicant’s solicitors on his behalf to the Tribunal sent on 3 July 2001, they indicated that the applicant spoke Dari.  At the hearing a Dari interpreter was provided.  At an early point in the hearing the Tribunal member asked the applicant if he had any difficulty understanding the interpreter.  The applicant indicated that he did not.  The Tribunal asked the applicant whether he had any objection to using the particular interpreter who was then present.  The applicant indicated that he did not.  The transcript of the hearing before the Tribunal on 18 July 2001 does not indicate any apparent difficulties in interpretation in the course of that hearing.

10                  In the course of the hearing before the Tribunal, the applicant was asked some questions to explain apparent inconsistencies between his evidence as given to the Tribunal and his evidence given to a delegate of the respondent or in his initial application for a protection visa.  The applicant did not, at any point in response to those questions, suggest that the information recorded by the Tribunal as having been provided in the application for the protection visa or in the interview with the delegate of the respondent was not in fact provided on those occasions.  He did not suggest that the information which the Tribunal asserted had been so provided was a consequence of any interpreter’s error or inadequacy. 

11                  Furthermore, there was only one issue of apparent inconsistency between what the applicant had earlier said and what he said to the Tribunal to which the Tribunal had regard when deciding on the applicant’s unreliability as a witness.  It noted that when the applicant was interviewed by the delegate of the respondent, he was unable to nominate either the year or the month in which he was born, claiming that he could not do so because he is illiterate.  At the hearing before the Tribunal the applicant was able to provide the current year and that he was born in Jadee 1348.  The applicant was asked to explain why he knew that at the hearing but did not know it when the delegate interviewed him.  He was unable to do so.  He did not suggest on that topic that he had any communication difficulties with the delegate at the time of that earlier interview.  That interview took place on 29 January 2001 in the presence of a representative of the applicant, and with a Dari interpreter.  No complaint was made about the adequacy of the interpretation at that time.  On that occasion, the applicant confirmed that he spoke Dari and other languages.  He is recorded as having asked what year he was born, and responding simply by saying that he was illiterate.  He said he was born during winter.  He did not name the month of his birth or the year of his birth.  The Tribunal presented the applicant with that difference in his answers on those occasions in a proper way, and was entitled to have regard to his response to that issue.  The applicant did not, at the hearing before the Tribunal, contest that he had given those answers at that earlier interview.  Even if there were interpreting difficulties at that time as alleged, they have not been shown to have lead to any misrecording or possible misrecording of the matters which the Tribunal specifically had regard in reaching its findings and conclusions.

12                  The balance of the applicant’s contentions represent responses on matters of fact to which the Tribunal referred in its reasons for decision.  Some of those responses were put to the Tribunal at the hearing.  Some were not.  For example, he now explains that he had been able to learn of his month and year of birth and the current year in the Afghan calendar because he had learnt those things from other persons in the detention centre in anticipation of being asked them by the Tribunal.  Some of those responses involved the provision of information which the applicant had not previously provided to the Tribunal.  It is not the function of the Court to re-hear the applicant’s claim for the visa on the merits.  It is to determine whether, in the making of its decision, the Tribunal erred in a manner which is reviewable under s 476(1) of the Act.  The Tribunal does not err in such a manner by having regard to the material before it, and where necessary preferring certain material over other material which might tend to point in a different way.  In respect of claims about past events, if the determination of those claims might serve to enlighten the question whether the applicant has a well-founded fear of persecution for a Convention reason, it is appropriate for the Tribunal to make such determinations:  Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 574 – 575.  Sometimes that will involve the Tribunal making an assessment of the reliability of a particular visa applicant about the account given of those past events.  In this instance, in my judgment, it has not erred in a reviewable way by not accepting the applicant’s evidence about his background as reliable.  It is also clear that the Tribunal did not err by reaching its decision upon the material presented to it.  Assuming that the applicant is now able to adduce material to advance his claims which he did not adduce to the Tribunal, as the Tribunal followed the procedures prescribed by the Act and the Migration Regulations directed to providing the applicant with the opportunity to be heard, the availability of such material does not demonstrate any reviewable error on the part of the Tribunal.  I am not to be taken as accepting that the material now presented by the applicant has that character in any event.

13                  In assessing the reliability of the applicant’s claims, the Tribunal has recognised the need to be sensitive to the difficulties confronting persons such as the applicant in presenting his claim.  It has recognised that it should give the benefit of the doubt to those who are generally credible.  In this matter, however, the Tribunal found the applicant to be vague and unconvincing in his evidence to the Tribunal.  It considered the applicant had avoided answering a number of questions which he was asked during the hearing.  It placed weight upon the applicant’s evidence which was inconsistent with independent evidence available to the Tribunal.  And it considered that the applicant was unaware of matters which would have been known to him if he were, as he claimed, from Afghanistan.  It provided examples of what it regarded as the unsatisfactory nature of his evidence.  My review of those examples does not indicate that the Tribunal erred in a reviewable way in the matters to which it refers, and to which it had regard in concluding:

“… that the applicant has deliberately sought to mislead the Tribunal as to his circumstances.  Overall, I consider the applicant to be an unreliable witness and I do not find his evidence credible.”

14                  It was in respect of certain of those examples that the applicant sought to re-argue the merits of the Tribunal’s observation, or to suggest that there is other material which he might have put to the Tribunal in response to his concerns.  For the reasons given above, I do not consider that those matters demonstrate reviewable error on the part of the Tribunal.

15                  In my judgment, the Tribunal is not shown to have erred in any way which is reviewable under s 476(1) of the Act.  The application should be dismissed.  The applicant should pay to the respondent costs of the application to be taxed. 

Associate:

Dated:              28 November 2001

Counsel for the Applicant:                     The Applicant appeared in person.

Counsel for the Respondent:                 Ms S Maharaj with Ms J McIntyre

Solicitors for the Respondent:                Sparke Helmore

Date of Hearing:                                   3 October 2001

Date of Judgment:                                 3 December 2001