FEDERAL COURT OF AUSTRALIA

Adil v Minister for Immigration and Multicultural Affairs [2001] FCA 1801

MIGRATION – review of decision by Refugee Review Tribunal affirming respondent’s refusal to grant protection visa – applicant claimed to be citizen of Afghanistan – Tribunal disbelieved him and found that applicant was not from Afghanistan and thus had not been persecuted in that country as he had claimed – whether Tribunal, having disbelieved applicant, was obliged to consider other evidence – whether Tribunal had failed to consider such other evidence – whether Tribunal obliged to decide upon the applicant’s real nationality – whether Tribunal fell into error of law, other reviewable error or jurisdictional error.

Migration Act 1958 (Cth), s 476(1)(b), (c), (e)

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

MUHAMMAD ADIL v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

W 423 of 2001

CARR J

13 DECEMBER 2001

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 27 August 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who claims to be a citizen of Afghanistan, arrived in Australia on 1 March 2001.  On 3 April 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth)(“the Act”).  On 7 June 2001 a delegate of the respondent refused to grant a protection visa and on 8 June 2001 the applicant applied for review of that decision.

the applicant’s claims and the Tribunal’s decision

2                     The applicant’s claims, in summary, were as follows:

·          In his application for a protection visa, the applicant stated that he was born on 10 April 1983 in Buki, Seroo, Orozgan Province in Afghanistan and had lived there all his life before coming to Australia.

·          He was of Hazara ethnicity and a Shi’a Muslim.

·          His parents and four siblings are still in Afghanistan.

·          He is uneducated and did not work prior to his departure from Afghanistan.

·          The Taliban had been in his province for about five years; they came to his village about three years ago.

·          The Taliban would come to his sub-village on a weekly basis to find out whether anyone belonged to the Wahdat Party.  They would search the area for guns and ammunitions and on many occasions visited his house.

·          Before the Taliban arrived, he would leave and hide in the mountains and remain there until he thought it was safe to return.

·          On about three or four occasions in the last three years he was caught by the Taliban while he was trying to run away and he was beaten by them.

·          Many people had been taken from his sub-village and have never returned.

·          His paternal uncle was taken by the Taliban about a year ago and had not been seen since.  The people who were taken were all Hazaras; he did not know if the Taliban just killed them or took them to the frontline.

·          He began to fear for his own life and felt that he must escape; his mother asked him to leave because he was the eldest and so at most risk of being captured.

·          The elders in his village said that the Taliban did not want Shi’as and Hazaras in Afghanistan, and do not allow them to practise their religion or lead their lives according to their tradition and customs.

·          A school in Orozgan which was established with foreign aid had been closed by the Taliban, who put a religious school in its place and forced young people to go there and learn about the Taliban’s practices.

·          His father made arrangements for him to depart Afghanistan in January 2001; a smuggler collected him from the centre of Orozgan and drove him across the border into Pakistan.

·          He fears that if he returns to Afghanistan he will be killed because he is an Hazara and a Shi’a and because he left the country illegally.

3                     On 10 April 2001 the applicant was interviewed by the respondent’s delegate.  The delegate sent a tape of that interview to a Swedish agency specialising in translations and linguistic analyses.  The agency provided an analysis which I will summarise as follows.  The analysis included an explanation that the speech on the tape was Dari and that the person speaking most probably had his language background in Afghanistan.  This was because he spoke Dari with a Hazaragi accent.  This dialect was spoken in the central and western parts of Afghanistan, Baluchistan in Pakistan and in the south-eastern parts of Iran.  The pronunciation was very typical for Hazaragi.  Hazaragi was obviously his mother tongue and he used typical Hazaragi and Afghan local words.  The speaker appeared not to be educated and had only a little knowledge about his neighbourhood, the villages around, the culture and traditional celebrations.  He did not use any specific Pakistani words but had a slight Quetta accent, which indicated he had been living for some time in Pakistan. 

4                     In response to the respondent’s delegate’s offer to comment on the language analysis, the applicant submitted a letter stating that he spoke Hazaragi in the way everyone did in the area from which he came, that the language had changed over the years and had been influenced by the languages of neighbouring countries.  He stated that he had never been out of his village because it was a very mountainous area and it was almost impossible to visit nearby villages.  The applicant noted that Mullahs were educated in Iran and Pakistan and taught new Farsi and Urdu words to the people in Afghanistan.  His father was in partnership with his uncle and his uncle travelled to Pakistan to buy goods and he may have picked up a Pakistani accent from him. 

5                     The applicant was represented at the hearing in this Court by Mr H Christie of counsel.  Mr Christie tendered in evidence a transcript, which he had caused to be prepared, of the proceedings before the Tribunal.  The transcript ran to some 28 pages, almost all of which comprised intense questioning by the Tribunal of the applicant about his knowledge of the area in which he lived, his knowledge of his father’s business, the local population, recent history of Afghanistan affairs and the like.  It is apparent from the transcript and from the Tribunal’s reasons that it was unimpressed by what it considered to be how little the applicant knew of these matters.

6                     I shall not attempt to summarise the Tribunal’s findings and reasons, but I set them out below with the excision of some country information (indicating where I have done this).  I have numbered the paragraphs to facilitate references which I make later in these reasons.

“FINDINGS AND REASONS

1.  It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras. 196-197 and 203- 204). However, it is necessary and appropriate that the Tribunal assess the specific claims advanced in support of an applicant's case, bearing in mind that:

      A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out (Selvadurai v TheMinister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347, at 348).

2.  The Tribunal is not required to accept uncritically all claims made by applicants. In Randhawa v MILGEA (1994) 52 FCR 437 Beaumont J observed (at page 451) that a liberal attitude concerning proof of persecution in the context of an application for refugee status:

      should not, however, lead to ‘an uncritical acceptance of any and all allegations made by suppliants’.

It was also stated in Chan (per McHugh J at 428) that under the 1951 Convention

      It was unlikely that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality.

3. The Full Federal Court has ruled, in Kopalapillai v MIMA (1998) 86 FCR 547, that the Tribunal must be sensitive to the special considerations that arise in the assessment of credibility issues in refugee matters.

4.  More recently in Abebe v The Commonwealth of Australia (1999) 162 ALR 1 the High Court observed:

      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. (per Gummow and Hayne JJ at [191]

5.  The Tribunal has been mindful of all these considerations in assessing this application. Nevertheless, the Tribunal has come to the conclusion that the applicant is not a credible witness. His evidence to the Tribunal was implausible, vague, and lacking in detail as discussed below.

6.  The applicant has claimed that he is a national of Afghanistan is of Hazara ethnicity, and that he is a Shi’a Muslim.

7.  The Tribunal notes the following information about Hazaras

      The Hazara population, currently numbering about 1 to 1,5 million, are of unknown Central Asian, probably Mongolian, descent and have traditionally lived in their homeland of Hazarajat in central Afghanistan. Hazarajat consists of the northern part of the Helmand valley and parts of the provinces of Ghor, Uruzgan and southern Bamian. There are also smaller Hazara communities in northern Bamian and Badakhshan. Since the middle of this century, quite a number of Hazaras have emigrated to Kabul and other major urban centres, in the first place as labourers or servants for the urban population, but since going on to get themselves educated and hold down more skilled jobs in towns and cities. Especially in large urban centres, however, the Hazara population have traditionally formed the lowest rung in the ethnic hierarchy. Both in their physical appearance and in their cultural customs, Hazaras show their Asian origins, but they speak a variant of Persian and most of them are Imami Shia Muslims. (Danish Immigration Service, Fact-finding mission to Afghanistan, 1 November-29 November 1997; published July 1998, Section 4 H1)

      The Hazaras, numbering some 1.2 million, have traditionally been an underprivileged minority in Afghanistan. Unlike most Afghans, who are Caucasoid in appearance, the Hazaras have Mongol features - slanted eyes, high cheek bones, and sparse beards - which are the result of intermixing between the early Indo-Iranian inhabitants of central Afghanistan and the Mongols who swept through central Asia, starting with Genghis Khan in the l3th century. (CX 33997, Guerrillas and Refugees wage War on their own Disunity, by Tym Lenderking, The Christian Science Monitor, p.2, 26 January 1987).

8. The Tribunal is satisfied that the applicant is an Hazara. He speaks the Hazaragi dialect spoken by Hazaras, and he has the physical appearance of an Hazara. The Tribunal also accepts that the applicant is a Shi’a Muslim which is the faith of most Hazaras. He was able to satisfactorily describe Shi’a religious practices and showed familiarity with Shi’a religious festivals.

9.  The Tribunal notes that there are Hazara communities outside Afghanistan, and in particular, that there are large numbers of Hazaras living in Pakistan.

10.  The Australian Department of Foreign Affairs and Trade has provided the following advice:

      According to an international organisation in Islamabad, there are between 120,000 and 160,000 Hazaras currently in Pakistan. Of that number, between 80,000 to 100,000 have Pakistani nationality - most if not all having been born in Pakistan, the remaining 40,000 to 60,000 are considered to be refugees.

      Eighty per cent of Hazaras living in Pakistan are located in the city of Quetta, with around the remaining 20 per cent located in other areas of the province of Balochistan. There are also small communities of Hazaras scattered in the North West Frontier Province and in the city of Karachi. (DFAT Country Information Report 97/00, 10 May 2000, CX41933)

11.  In his book, The Hazaras of Afghanistan - An Historical, Cultural, Economic and Political Study, S.A. Mousavi made the following observations in relation to Hazaras in Pakistan:  [text excised] 

12. The Tribunal is not satisfied that the applicant is an Hazara from Afghanistan. The Tribunal does not accept that the applicant is a national of Afghanistan for the following reasons

13. The applicant claimed that until he came to Australia he had never left his sub-village which consisted of 20-25 houses. He had not even visited the main village of Seroo or the other sub-villages comprising Seroo. The Tribunal finds implausible the applicant's claim that at the age of eighteen he had never been out of his small sub-village, and that he had found no reason ever to visit the main village of Seroo. The applicant informed the Tribunal that his father did not allow him to leave the sub-village after the Taliban came, but as the applicant stated in his protection visa application that the Taliban only came to his village three years ago, this does not explain why he did not visit Seroo prior to their arrival in the area.

14.  The applicant claimed that the closest town with shops and a bazaar was the village of Husseini, which was over six hours walk away from his sub-village. As discussed with the applicant, according to his estimate of the size of Seroo and its sub-villages, and given that extended families live together in the one dwelling in Hazara societies (Mousavi, The Hazaras of Afghanistan - An Historical, Cultural, Economic and Political Study, cited above, pages 45-46), at least 1,000 people must live in Seroo and its sub-villages, and the Tribunal does not accept as credible the applicant's claim that there is no shop at all for the population of greater Seroo and that any purchase required a six hour walk to Husseini.

15.  The Tribunal has studied the map of the area from which the applicant claims to come (Microsoft Encarta Interactive World Atlas 2000, "Khaz Orozgan"). It is certainly a mountainous area, but there are quite a large number of villages in the area and several roads linking these villages. The distance between the town of Khaz Orozgan and the village of Baki, (whose location accords with the applicant's village according to the account he gave to the delegate of other nearby villages such as Baghucari and Kondelan) is approximately 5 kilometres (although there is no road directly linking the two). Baki, does however, appear to be situated on a road leading to the town of Khakeran. The Tribunal would not wish to place too much weight on any map of Afghanistan given the difficulties involved in mapping the country in recent years, but it does seem clear that the location of the applicant's village is not as remote as he claimed. As there are roads in the area, and villages are only a few kilometres apart, the Tribunal does not accept as credible the applicant's claim that it was a six to seven hour walk to the nearest shop and it took a further two hours by car to get to Khaz Orozgan.

16.  The Tribunal's doubts about the accuracy of the applicant’s description of the remoteness of his village, which he used to account for his inability to describe basic activities such as shopping and going to school, are further strengthened by his claims that his father used to sell his goods in Khaz Orozgan and the Taliban used to come frequently to his sub-village. It is not plausible that the applicant's father would choose to live in a place which was an eighteen hour return trip away from where he based his business activities. Nor is it likely that the Taliban would appear with such frequency to look for weapons in a small sub-village of 20-25 houses if they had to walk considerable distances on foot to get there each time. The Tribunal finds that the applicant's description of the remote location of his village does not accord with country information nor is it consistent with other claims made by him, and this gives the Tribunal cause to doubt that he did live in this part of Afghanistan all his life as he has claimed before coming to Australia.

17.  The Tribunal is not satisfied that the applicant is an uneducated person as he claims to be. He was able to read in Arabic passages selected at random from the Koran. The Tribunal does not accept that the applicant's mother would have been able to teach him to read Arabic if he could not read his own language, Dari. The applicant appeared able to follow instructions in English. The Tribunal finds that the applicant has not been truthful about his lack of education.

18.  The applicant's knowledge of his father's business was very limited and he was vague and evasive about the reasons his uncle used to travel to Pakistan on business. He used his uncle's connections with Pakistan to explain in part why the language analyst had concluded that he had been living for some time in Pakistan, but when asked to explain his uncle's business activities in Pakistan he was unable to do so and claimed that he had been misrepresented by the person who assisted him in writing his letter to the delegate of 25 May 2001. The Tribunal considers it reasonable to expect that, as the oldest son, the applicant would have had greater knowledge of his father's business and his limited knowledge and his inability to explain his uncle's activities give the Tribunal cause to doubt that the applicant’s family conducted a business in Afghanistan as he has claimed.

19.  The applicant showed very limited knowledge of recent political events in Afghanistan.  The Tribunal notes the following information about the political situation in Afghanistan since the fall of the monarchy in 1973:  chronology of a quarter-century of afghan war.   [Text excised].

20.  The applicant knew very little about the ten years of Soviet occupation of Afghanistan. He was able to name Hekmatyar as a former leader of Afghanistan, and to name current factional leaders, but his answers were hesitant, lacking in detail and he had difficulty responding to follow-up questions. Even allowing for the applicant's young age and his claimed lack of education, his limited knowledge of the tumultuous history of Afghanistan over the past 25 years causes the Tribunal to doubt that he has lived in Afghanistan all his life as he has claimed.

21. The applicant's knowledge of the history of the Hazara people and the Hazara's party, Hezb-I-Wahdat, was also limited. His description of the parties involved in the formation of Hezb-I-Wahdat was not consistent with the following country information about the party, which the Tribunal accepts as accurate. The applicant was able to name only one of the eight groups involved in the formation of Hezb-I-Wahdat, and although he stated that Hezb-I-Islami and Jamaat were among the parties which formed Hezb-I-Wahdat, the country information shows that several years after its formation, Hezb-I-Wahdatjoined with Hezb-I-Islami joined with Hezb-I-Islami to fight against Jamaat.  [Text setting out some history of the Islamic Unity Party excised].

22. Taking into account the applicant's inability to provide a satisfactory description of the location of his village and his life in Afghanistan, including his family's business activities, the Tribunal's doubts about his claim to be uneducated because there was no school in his village, his lack of knowledge of the history of the Hazara people in Afghanistan and the Hezb-I-Wahdat party, and his very limited knowledge of recent political developments in Afghanistan, the Tribunal finds that the applicant is not from Afghanistan as he has claimed.

23. The Tribunal is strengthened in its view that the applicant has not been living in Afghanistan by his unsatisfactory responses to questions he was asked about the activities of the Taliban.  The applicant was uncertain about the operations of the Taliban, even though he claimed that they came to his sub-village frequently over a period of three years.  As discussed with the applicant at the hearing, if the Taliban had come to his sub-village so often over a three year period, even if he was in hiding while they were in the sub-village, it was reasonable to expect that the people of the sub-village would have been well aware of how the local Taliban operated, and would have communicated this knowledge to him.

24.  The Tribunal asked the applicant twice about the situation for his mother and his sisters since the Taliban came.  The applicant was vague about changes affecting women, and responded that since the Taliban came his mother “could not participate in happy days and her life was sad and fully of worry”.  The following list of restrictions imposed on women by the Taliban was prepared by the Revolutionary Afghan Women’s Alliance, which is based in Pakistan:  [Text setting out 29 restrictions and mistreatment of women excised.] 

25.  Although the applicant claims to live in a remote, mountainous area of Afghanistan, and it is therefore possible that the Taliban’s restrictions on women are not applied as rigorously there as they are in the cities, given his claim that the Taliban came to his sub-village frequently over a three year period, the Tribunal does not accept that women in the village would not have been affected by a number of these restrictions, such as the ban on women’s activities outside the home unless accompanied by a close male relative, and the requirement for them to wear the burqa.

26.  The applicant’s limited knowledge of the activities of the Taliban in his local area causes the Tribunal to disbelieve his claim that he has lived in Afghanistan when it has been under the control of the Taliban.

27.  As the Tribunal does not accept that the applicant is from Afghanistan and has lived there under Taliban rule, it does not accept his claims that the Taliban came to his house many times, that he had to hide from them but that he was caught and beaten on several occasions, that his father was caught by them several times and that his paternal uncle was taken by the Taliban and his whereabouts are unknown.  The Tribunal finds that the applicant has fabricated these claims to make a case for claiming to be a refugee. 

28.  The Tribunal has considered carefully the language analysis provided by the Swedish agency and the applicant’s comments on this analysis.  The analyst concluded that the applicant most probably had his language background in Afghanistan, but he had lived for some time in Pakistan.  Taking into account its assessment that the applicant was not a credible witness and the reasons outlined above as to why it does not accept his claims to be a national of Afghanistan, the Tribunal finds that the language analyst’s conclusion that it was “most probable” that the applicant had his language background in Afghanistan is not sufficient to satisfy the Tribunal that he is a national of Afghanistan.  The analyst’s assessment that the applicant had been living for some time in Pakistan is not supportive of his claim that he lived in Afghanistan all his life and had never been out of his sub-village until he came to Australia.

29.  As the Tribunal has found that the applicant is not a national of Afghanistan it does not accept his claims that he will be persecuted by the Taliban for Convention reasons if he returns to Afghanistan, and finds that his claims are not well-founded.

30.  The Tribunal notes the country information discussed above about the Hazara community living in Pakistan, and has considered whether the applicant might be a national of Pakistan.  However, the Tribunal has concluded that there is insufficient evidence to make a finding that the applicant has rights of residence or citizenship in relation to any country other than Afghanistan.  The applicant’s claims have therefore been considered in relation to Afghanistan only.  The applicant has not claimed that he will be persecuted in any other country.

CONCLUSION

31.  Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.” 

grounds of the application

7                     The grounds of review set out in the applicant’s amended application were as follows:

“a)      The Tribunal erred in law in determining that the Applicant did not have a well-founded fear of persecution for a convention reason, on the basis that the Tribunal was not satisfied that the Applicant was an Hazara from Afghanistan and the Applicant had made no other claims of persecution:

PARTICULARS

            i.    The Applicant claimed that he was a Hazara Shia, 18 years of age, a citizen of Afghanistan, from the sub-village of Baki, part of the village of Seroo, in the Province of Orozgan and that he fled Afghanistan because he feared being taken by the Taliban and killed.

ii.   The Tribunal accepted that the Applicant was a Hazara and that he was a Shia Muslim.

iii.  The Hazara people originate from Afghanistan and from no other country and the vast majority of all Hazaras are nationals of Afghanistan.

iv.  There was material before the Tribunal that there were Hazara communities in Pakistan and that some members of those communities were Pakistan nationals.

v.   The language analysis indicated that the Applicant spoke Hazaragi with only Afghani words and that he had a slight Pakistani accent.  The analyst’s conclusion was that the Applicant was from Afghanistan, but had spent some time in Pakistan.

vi.  In determining that the Applicant was not a citizen of Afghanistan the Tribunal considered that in relation to the Applicant’s claims, it was implausible:

·          That the Applicant as a young boy would not have left his village in rural Afghanistan;

·          That the Applicant’s father would operate his business from the nearest town, but continue to live in a remote village several hours walking away;

·          That the Applicant could study and learn to read the Koran in Arabic without reading his own language Dari;

·          That the Applicant would not have a greater knowledge of his own father’s business;

·          That the Applicant would not have a greater knowledge of the Political events in Afghanistan over the last 25 years;

·          That the Applicant would not be aware of the parties comprising the Hesb-e-Wahdat formed in Iran in 1987;

·          That there was no school or shop in the Applicant’s village;

·          That the Applicant did not mention any of 29 matters by which the Taliban imposed restrictions and punishments upon Afghani women.

                  There was no material before the Tribunal concerning the ordinary village and family customs and/or the personal knowledge of a person claiming to be in the position of the Applicant namely an 18 year olf Hazara from an isolated village in Orozgan.

vii.    None of the matters which the Tribunal relied upon to doubt the Applicant’s claims were inconsistent with the Applicant’s claims to have lived all his life in his village of Baki.

viii.   None of the matters relied upon by the Tribunal indicated that the Applicant was a national of any country other than Afghanistan.

ix.     There was no material before the Tribunal, which indicated that the Applicant was not an Afghani citizen.

x.      There was country information before the Tribunal which showed that the Taliban (who ruled 90% of Afghanistan and the whole of the areas generally populated by the Hazara people at the time the Tribunal decision) in particular persecuted the Hazara people because of their Shia religion.

xi.     In those circumstances the Tribunal failed to allow for the possibility that the Applicant was a citizen of Afghanistan and that he was therefore be at risk of persecution from the Taliban if returned to Afghanistan.

xii.    The Tribunal failed to apply the correct test for well founded fear of persecution namely whether there was a real chance of persecution but rather dealt with the issue of the Applicant’s nationality simply on the basis that it could not be satisfied that the Applicant was telling the truth and therefore could not be satisfied as to the Applicant’s nationality.

xiii.   If the Tribunal could not be satisfied that the Applicant was telling the truth the Tribunal had at least country information that the vast majority of Hazaras are Afghani citizens and secondly a language analysis which stated that the Applicant was of Afghani origin.

xiv.   The Tribunal's decision was illogical in the sense that it was perverse and was based on material, which was incapable of supporting the conclusions reached by the Tribunal.

b)         The Tribunal erred in law, alternatively made its decision without jurisdiction, alternatively its decision was not authorised by the Migration Act. 

PARTICULARS

            i.    The Tribunal relied on irrelevant considerations in making its decision and the Applicant repeats Particulars contained in (a)(vi) above.

            ii.   There was no material before the Tribunal, which could support the Tribunal’s a finding that the Applicant was not a national of Afghanistan.”

the applicant’s submissions

8                     The applicant’s written submissions were based largely (but not exclusively) on the eight matters listed in paragraph (vi) of the particulars to the first ground of review.  I shall refer to those matters as “the Eight Matters”.  These were said to be matters which the Tribunal considered to be implausible when it determined that the applicant was not a citizen of Afghanistan.  Although the Tribunal did not always use the word “implausible” in this connection, and although I could find no reference to the Tribunal stating that it was implausible that there was no school in the applicant’s village, I think that it is fair to say that these were matters upon which the Tribunal relied in deciding not to believe the applicant.  This can be seen by reference to paragraphs numbered 13, 16, 17, 18, 19, 21, 14, 24 and 25 of the Tribunal’s reasons set out above. 

9                     There were at least two other matters upon which the Tribunal relied.  For example, in paragraph numbered 17 in which the Tribunal said that it was not satisfied that the applicant was an uneducated person as he claimed to be, it noted that the applicant appeared to be able to follow instructions in English.  It made the same observation at the hearing – see the relevant passage at page 14 of the transcript.  At this stage of the hearing, the Tribunal had asked the applicant to pick up the Koran, open it and read something from it.  First he read from the first page of the Koran and then the Tribunal (through the interpreter) asked the applicant to open the Koran at another page.  The applicant, according to the Tribunal’s observation, followed that instruction before the interpreter had time to translate it.  The Tribunal put that observation to the applicant quite clearly – see page 15 of the transcript.  In the light of the responses from the applicant, it was open to the Tribunal, in my opinion, to disbelieve the applicant’s evidence about his state of education. 

10                  There was also a map of Afghanistan on which the Tribunal relied.  The map showed that Khaz Orozgan was about 5 kms from the applicant’s sub-village, not the long journey which the applicant had described.

11                  The applicant submitted that the Tribunal had fallen into error of law in relation to the Eight Matters because there was no material before it concerning the ordinary village and family customs of Afghanistan, or what would be the personal knowledge of an eighteen year old from an isolated village in Orozgan.  None of the Eight Matters, so it was put, was capable of supporting the conclusion by the Tribunal that the applicant’s claims were implausible.  Further, so the applicant contended, none of the material before the Tribunal supported or was capable of supporting the inference that the applicant was a national of any country other than Afghanistan. 

12                  In my view, these submissions do not pay sufficient attention to the fact that, to the extent that the Tribunal relied on the Eight Matters, it was doing so in the course of making a credibility finding i.e. that it did not believe the applicant’s claim that he was from Afghanistan. 

13                  Other minds might regard the Eight Matters as not forming a strong enough basis for such a credibility finding but, in my view, this part of the Tribunal’s reasoning process does not disclose reviewable error or jurisdictional error.  The first in the list of Eight Matters was the applicant’s claim that he had never left his village even to visit the main village of Seroo of which his own village was a sub-village.  The applicant told the Tribunal that this was because his father did not allow him to leave the sub-village after the Taliban came.  The Tribunal (see paragraph numbered 13 of its reasons) noted that the applicant had stated that the Taliban only came to his village three years ago and that this did not explain why he had not visited Seroo before that i.e. at any time during the first 15 years of his life.  It was open to the Tribunal to reach that conclusion.

14                  In my view, many of the particulars listed at paragraphs (vii) to (xiii) constitute an attempt at merits review of the Tribunal’s decision.  I shall deal only with some of them.  At paragraph (ix) there is the assertion that there was no material before the Tribunal which indicated that the applicant was not an Afghani citizen.  This simply ignores the fact that the language analyst expressed the opinion that the applicant had spent “some time” in Pakistan.  Similarly, at paragraph numbered 10, the Tribunal referred to country information about the substantial number of Hazaras currently in Pakistan. 

15                  The applicant abandoned his assertion [see paragraph (xiv)] that the Tribunal’s decision was perverse.  But it pressed the contention that the Tribunal’s decision was illogical in the sense that it was based on material which was incapable of supporting the conclusions reached by the Tribunal. 

16                  The conclusions which the Tribunal reached were that the applicant was not an Afghan national, did not come from Afghanistan and had not lived there under Taliban rule.  It reached those conclusions on the basis that it disbelieved the applicant’s evidence to that effect.

17                  As I have mentioned, that credibility finding might be open to criticism, but in reaching it I do not think that the Tribunal fell into error of law or jurisdictional error.  In my view, the material to which I have referred above when coupled with the Tribunal’s adverse credibility finding constitute sufficient material to support its conclusions.

18                  In oral submissions Mr Christie advanced what he described as his strongest argument.  That was that the Tribunal, having found that the applicant was not to be believed, should have had regard to the general country information about the large number of Hazaras living in Afghanistan (see paragraph numbered 7 of the Tribunal’s reasons) and the language analysis from Sweden.  This was independent evidence from which it was open to the Tribunal to find that the applicant was an Afghan national.  

19                  In my opinion, the Tribunal did not fall into error in the manner claimed.  At paragraph numbered 7 of its reasons it noted the country information about the Hazaras.  It also had the further information, which it noted at paragraph numbered 10 of its reasons, about the large number of Hazaras currently in Pakistan. 

20                  As to the language analysis, the analyst explained that his or her opinion that the person speaking has “most probably his language background in Afghanistan” was based on various matters.  The first of these was that the person spoke Dari with a Hazaragi dialect which was spoken in the central and western parts of Afghanistan, Baluchistan in Pakistan and in the south-eastern parts of Iran.  Later in that report there was the reference to a slight Quetta accent indicating that the speaker had been living for some time in Pakistan. 

21                  Mr Christie contended that the Tribunal was in a situation where there were only two choices open to it.  It had to decide whether the applicant was an Afghan national.  If it decided that the applicant was not an Afghan national, it was obliged to decide whether or not he was a national of Pakistan.   

22                  In my opinion, the Tribunal having made clear findings to the effect that the applicant was not an Afghan national, was not obliged to decide whether he was a national of Pakistan.  The Tribunal dealt with this question at paragraph numbered 30 of its reasons above.  It considered whether the applicant might be a national of Pakistan, but concluded that there was insufficient evidence to make a finding that the applicant had rights of residence or citizenship in relation to any country other than Afghanistan.  I do not think that it erred in taking that course.  While acknowledging that the facts of Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 are not on all fours with the present matter, I adhere to the view which I expressed at [22] and [23] in that case.  The main difference between the two cases was that in Hussain the language analyst’s conclusion was squarely against the applicant, whereas part of the evidence from the language analyst in this matter favoured the applicant.  The Tribunal, having disbelieved the present applicant’s claims, can be seen (at paragraph numbered 28 of its reasons above) to have focused on that part of the analyst’s assessment, to the effect that the applicant had been living for some time in Pakistan, as being contrary to his claim of having lived in Afghanistan all of his life and never having left his sub-village. 

23                  In my view, the Tribunal was under no obligation to make a positive finding on the question whether or not the applicant was a national of Pakistan or had rights of residence or citizenship in relation to any other country. 

24                  The applicant submitted that even if the Tribunal were entitled to reject and disregard the applicant’s claims as “untrustworthy”, it was still required to determine on the remaining material before it whether the applicant was a refugee. 

25                  In my view, that is not the case.  One of the essential bases of the applicant’s claims to be a refugee was that he came from Afghanistan and was fleeing from Taliban persecution.  He was disbelieved.  The Tribunal found that he did not come Afghanistan and had not lived there under Taliban rule.  In those circumstances, I do not think that the Tribunal was obliged to consider the remaining material bearing on the question whether the applicant was a refugee. 

26                  The applicant submitted that the Tribunal had failed to apply the correct test for well-founded fear of persecution on the basis that a consideration of its findings as a whole showed that it had not applied that test. 

27                  The Tribunal correctly set out the relevant principles of law in the initial part of its reasons.  In my opinion, there was nothing later in its reasons to indicate that it did not correctly apply those principles.  The essence of the applicant’s criticism is that the Tribunal dealt with the issue of the applicant’s nationality simply on the basis that it could not be satisfied that the applicant was telling the truth.  As I have said, I think that as a matter of law it was entitled to take that approach. 

28                  Next the applicant complained that the Tribunal in reaching its conclusion that it was not satisfied that the applicant was a national of Afghanistan had equated such a state of satisfaction as being something more onerous than a balance of probabilities. 

29                  Nowhere in its reasons did the Tribunal refer to an onus of proof or to the “balance of probabilities”.  The applicant relied heavily on the language analysis as being “clearly probative”.  As I see it, the Tribunal had regard to the language analysis but, because it could not believe the applicant, decided not to rely on the language analyst’s conclusion that it was “most probable” that the applicant had his language background in Afghanistan.  Its reasoning was that the analyst’s assessment that the applicant had been living for some time in Pakistan was “not supportive” of his claim that he had lived in Afghanistan all his life and had never been out of his sub-village until he came to Australia – see paragraph numbered 28 of its reasons.

30                  Finally, the applicant submitted that the considerations or material on which the Tribunal relied to draw its conclusions were incapable of supporting the conclusion and accordingly were irrelevant.  Having relied on such irrelevant material it had, so the applicant submitted, exceeded its jurisdiction.

31                  As I have already expressed the view that the material upon which the Tribunal relied to make its credibility assessment cannot be regarded as irrelevant, I do not consider that this ground has been made out.

A/g Associate:

Dated:              13 December 2001