FEDERAL COURT OF AUSTRALIA

Latif v Minister for Immigration and Multicultural Affairs [2001] FCA 1701

MIGRATION – application for an order of review – where the applicant claims to be a citizen of Afghanistan – where the Refugee Review Tribunal (“the RRT”) was not satisfied that the applicant was a national of Afghanistan – linguistic analysis – whether the RRT erred in principle or law in taking into account the findings of a linguistic analysis – where the applicant had made submissions to the RRT in relation to the shortcomings and claimed inadequacy of the language analysis – the RRT was entitled to give some weight to the linguistic analysis and the amount of weight to be given to it was a matter for the decision-maker – where the applicant was not found to be a national of any state

Hussein v the Minister for Immigration and Multicultural Affairs [2001] FCA 523

MOHAMMAD LATIF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 116 OF 2001

TAMBERLIN J

ADELAIDE

21 NOVEMBER 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the costs of the respondent 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 for review of a decision of the Refugee Review Tribunal (“the RRT”).  The applicant, who arrived in Australia in mid-December 2000, claims to be a citizen of Afghanistan.  The decision of the RRT was that it could not be satisfied that the applicant had a well‑founded fear of persecution for a Convention reason, on the basis that it was not satisfied that the applicant was an Afghani national.

2                     After referring to a number of specific matters in relation to the implausibility, in the mind of the decision‑maker, of the applicant’s evidence concerning his activities in Afghanistan and events taking place there, the RRT summed up its determination as follows:

“Many of these factors would not, on their own, be determinative however taking all of these factors into account I am left with no doubt that the applicant has fabricated his claim for refugee status.  I am not satisfied that the applicant has ever lived on a farm in Afghanistan as he claims.  I am mot satisfied as to his general credibility.

Nevertheless I must determine whether I am satisfied that the applicant is a national of Afghanistan.  In concluding that she could not make a finding of fact that the applicant was a national of Afghanistan who has not enjoyed third country protection the primary decision-maker relied in part on the linguistic analysis.  The analysis concluded the applicant uses an accent, which occurs in Afghanistan but that the applicant most probably has his language  background in Quetta, Pakistan.

There are problems with this type of linguistic analysis.  There is no substantial indication of the qualifications or experience in linguistics of the persons providing the analysis.  The language analysis must be given limited evidentiary weight because of its shortcomings.  However, when combined with the applicant’s lack of general credibility it leads me to conclude that I am not satisfied that the applicant is a national of Afghanistan.   The only personal details I have available to me are those provided by the applicant, indicating he was born in Afghanistan.  However because the applicant is not credible I am not satisfied that these personal details are true.  There is insufficient credible material before me to determine where the applicant is from or of which other country he is a national.

I find that the applicant deliberately fabricated the fundamental aspects of his claim this aspect of his claim [sic].As I am of the view the applicant has fabricated the claims he has put forward and there is no other material in which the Tribunal can be satisfied  that he has a well founded fear of persecution for reasons of a Convention ground.  I am not satisfied that he is a refugee within the meaning of the Convention.”

3                     The submission advanced on behalf of the applicant in this matter was that there had been an error in principle or in law because the decision‑maker had taken into account the findings of a linguistic analysis made by a Scandinavian organisation and forming part of the evidence.  The conclusion of the analyst was in the following terms:

“To sum up the case, the person’s intonation, his choice of words, his sentence structure and his pronunciation indicate that he most probably has his language background in Quetta, Pakistan.”

4                     In his or her explanation of the assessment, the analyst said that the person spoke Dari, with a Hazaragi dialect, from the border area between Afghanistan and Pakistan, and that it was clear that Hazaragi is his mother tongue.  Reasons for this conclusion are given.

5                     The applicant had made, through a representative, detailed submissions to the RRT in relation to the shortcomings and claimed inadequacy of the language analysis.  This subject matter was dealt with at some length and referred to matters such as the language analysis company’s alleged lack of reliance on a recognised method of evaluating the merits of their employees and their adoption instead of a seemingly ad hoc in-house developed process.  Furthermore, reference was made to the fact that no indication was given in the language analysis report of the qualifications or experience in linguistics of the person providing the analysis.  It seems that the only information provided on this question is contained in the statement appearing at the bottom of the language analysis report, which reads:  “[t]he analyst who has performed this analysis originates from Afghanistan”.  It was said that for these reasons it was not open to the RRT to give any weight whatsoever to the linguistic analysis.  Further, it was submitted that because no weight could be given to the linguistic analysis, then the conclusion of the RRT in relation to the claim for Afghani nationality was flawed because it was reached on the basis of both the linguistic analysis and on the findings of the general lack of credibility.  The decision-maker noted, as can be seen from the applicant’s quotation at [2], that the only personal details available were those provided by the applicant indicating that he was born in Afghanistan.  Because the applicant was not credible, the decision-maker was not satisfied that these personal details were true. 

6                     In my view, the decision-maker was entitled to give some weight to the linguistic analysis and the amount of weight to be given to it was, of course, a matter for the decision‑maker.  The decision makes clear that the shortcomings in the linguistic analysis were appreciated and, for this reason, reference was made to giving it limited evidentiary weight.  However, weight was also given to a strong finding of the applicant’s lack of general credibility, for reasons that were given.  In my view, there is no error in principle or law shown in the reaching of the conclusion of non‑satisfaction by the RRT on these bases.

7                     I am concerned with the outcome of this application because firm findings were made by the decision-maker to the effect that the applicant is Hazara and also that, in general, Hazaras in Afghanistan are particular targets of discriminatory action by the Taliban, ranging from killings, torture, disappearances and other intimidatory treatment.  The basis on which the applicant, in the present case, was held not to be a refugee was non‑satisfaction as to his nationality in what might be described, to some extent, as a borderline case on the evidence, having regard to the fact that the linguistic analysis indicated that the applicant’s speech patterns were consistent with a border area between Afghanistan and Pakistan.

8                     However, the exercise for the Court is to determine whether there has been any error of law in this case, and I am not satisfied that there has been.  I should add that I share the concern of Carr J in the case of Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523, expressed in the final paragraph, and also as indicated by his Honour’s granting of an adjournment so that some evidence might be adduced before his Honour as to what might happen to a person in the circumstances of an applicant such as the present applicant.  At [11]-[15], his Honour had regard to material furnished in this respect, and I will not repeat those matters here. 

9                     The concern is that the applicant, not having been found to be Afghani and not, in effect, having been found to be a national and/or citizen of any other state, is in a somewhat suspended situation that could be regarded as potentially of great danger to the applicant.  I make these remarks simply to express disquiet that I have in relation to what may occur in relation to this applicant.  There is some assurance, however, to be gained from the material and approach indicated in the decision of Carr J, referred to above.

10                  Therefore, my conclusion in this matter is that the application should be dismissed and that the applicant should pay the costs of the respondent.  I want to thank both counsel for their very considerable assistance in this case, and particularly you, Mr Swan, for taking on these matters.  You are performing, I think, a very helpful service both to the Court and to applicants in these proceedings.

Associate:

Dated:              6 December 2001