FEDERAL COURT OF AUSTRALIA

Askari v Minister for Immigration & Multicultural Affairs [2002] FCA 216

HASAN ASKARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W454 of 2001

CARR J

7 MARCH 2002

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 19 September 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 arrived in Australia on 13 March 2001.  On 7 April 2001 he applied for a protection visa.  On 17 July 2001 a delegate of the respondent refused to grant him a protection visa.  On 18 July 2001 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal.  On 25 September 2001 the applicant applied to this Court for review of the Tribunal’s decision. 

the applicant’s claims and the Tribunal’s decision

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

·          His age on arrival in Australia was 21.  He was born in Zabol Province in Afghanistan.

·          He was an Afghan citizen.  His Afghan identity document was in Afghanistan.

·          He had never attended school, but had had religious instruction.

·          He was a self-employed wheat farmer for five years.

·          He was a Shi’a Muslim and a Hazara by race.

·          He left Afghanistan because there was oppression by the Taliban; Hazaras were being sent to perform military service.

·          He was of a suitable age to be taken for military service or killed, so his father told him to leave home.

·          The Taliban had come to his home and asked for him at a time when he was not at home and they kept coming for him, but the applicant was away working on the farm.

·          He began planning to leave about 3 months before his departure.  He obtained the services of a people smuggler who had provided him with a blue passport with his photograph in it but it was not in his name.  It was not a genuine passport. 

3                     The Tribunal noted that on arrival in Australia the applicant had in his possession some documents.  They were geographical diagrams and text.  One showed places from Gazni province (“Sangi Masha District”) to “Arghandaw” and included a diagram of the compass.  A second showed more detail of the Sangi Masha District, with indications as to directions.  A third consisted of a text description of places in Sangi Masha District, and where they were in relation to each other.  According to the translation of that document, it contained Urdu words.  The fourth document consisted of another set of place names, headed by Zabul province and Deh Chopan district.  The word Gazak was circled.  The document also contained a list of the seasons and the months in each season with directions (including an indication of how long it took to get from place to place) to get from a place called Telom to Kandahar by utility.

4                     The Tribunal summarised the evidence given to it by the applicant, including his responses to various questions, put to him by the Tribunal, which were designed to test his knowledge about Afghanistan and in particular the area from which he claimed to have originated.  The Tribunal also referred to country information about Hazaras and the geography of the area from which the applicant claimed to have come, including the road system.

5                     Rather than attempt to summarise the Tribunal’s findings and reasons, I incorporate them into these reasons.  I have numbered the paragraphs to facilitate the references which I make to them.

“FINDINGS AND REASONS

1.   The Tribunal accepts that the applicant is a Hazara and a Shi’a, and accepts that Hazaras and the Shi’a are persecuted in Afghanistan.  However, the Tribunal is not satisfied that the applicant’s country of nationality is Afghanistan.  The evidence is that Hazaras live in Pakistan, Iran and parts of Central Asia.  So the fact that the applicant is a Hazara does not establish his nationality as Afghani.

2.   The applicant’s possession of a number of documents containing geographical and other information about Afghanistan (such as information relevant to the Afghan calendar i.e. the names of the months and seasons) indicates he is not from Afghanistan.  A genuine Afghan national would not need such information in order to satisfy the Tribunal as to their nationality.  The Tribunal is not persuaded by the applicant’s explanation for the existence of these documents among his belongings.  The coincidence that someone on the boat had coaching materials in relation to the very same area in the same district that the applicant is from is too strong to be believable.  The scenario of that other person accidentally putting these very documents into the applicant’s bag seems even further against the odds, and only makes the account appear more far-fetched.  As for the speculation that someone deliberately put the documents in the applicant’s bag: there is no evidence for this and no reason put forward why the perpetrator would not, instead, dispose of the documents completely. 

3.   The applicant’s argument that the documents could not be any use to him because he is illiterate was not persuasive – illiteracy is itself a proposition that can’t be tested, and needs to be supported by reference to other aspects of his identity, exactly the question in doubt.  The Tribunal sympathised with the applicant’s comment that Hazaras are unlucky, but was not persuaded by the applicant’s belief that the documents must be someone else’s.

4.   The applicant’s answers about the route out of Afghanistan were thin and hesitant.  He was unclear about the direction he traveled in and the main road traveled on.  The Tribunal would not rely on this factor by itself but it added to the impression that the applicant did not really come to Australia from Afghanistan.  The Tribunal does not accept that the applicant’s claimed illiteracy and lack of education were an explanation for this uncertainty.  His claim to not know the compass points, while being the son of a farmer, was not plausible. 

5.   The Tribunal found it very difficult to credit, and does not accept, that the applicant had an Afghan identity document (a Tazkera).  If he had a document that could prove his nationality to countries of asylum abroad, he would certainly have attempted to bring it with him.  The explanation offered for this state of affairs, that he did not know where he was going or that he was going to be seeking asylum, was implausible.  People do not pay thousands of hard-earned dollars to people smugglers without some sort of idea of the destination and the process to be followed on arrival. 

6.   The questions the applicant was able to answer about Afghanistan were weak as evidence that the applicant is really from there.  This sort of information is readily available.

7.   The Tribunal has not accepted the applicant is an Afghan national.  The applicant has not made claims in relation to any other country.  The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in his country of nationality, on the information before it.

CONCLUSION

8.   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

6                     The applicant was unrepresented and does not speak English.  He faxed his application from the Immigration Detention Centre at Curtin near Derby.  The person who drafted the grounds of application expressed them in the following terms:

“I am Hazara ethnicity and Shi’a religion.  I am from Afghanistan and my nationality is Afghani.  I am illiterate and except Holy Quran.  I cannot read or write Dari language.  The papers which was founded from my bag is not belong to me.  I know nothing about that papers and the papers must be someone else’s paper.  Whatever questions put to me during interview about my area, I had answered to all of the questions, because I know everything from my village, area, custom, agriculture and tradition.  In Afghanistan I had Tazkera.  I did not bring my Tazkera here and as Afghan National I had Tazkera in Afghanistan.  I escape Afghanistan because of cruelty and tyranny of the Taliban.  My life was indangered.  My ethnicity and religion was in dangered in Afghanistan.”

7                     At the hearing this morning the applicant made oral submissions.  Those submissions were concerned with the merits of his case before the Tribunal.  Essentially, the applicant asserted that the Tribunal was wrong in finding that he was not from Afghanistan.  I tried to explain to him what a limited role this Court has in relation to such factual matters.

my reasoning

8                     The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in Afghanistan was based on a finding that the applicant was not a national of Afghanistan.  This in turn was based on the following:

·          The applicant’s possession of the documents described above, which the Tribunal characterised as being coaching materials which a “genuine Afghan national” would not need.  The Tribunal rejected the applicant’s explanation for the existence of these documents among his belongings.  It also rejected the applicant’s argument that the documents could not be any use to him because he was illiterate. 

·          The Tribunal’s assessment that the applicant’s answers about the route which he took out of Afghanistan were “thin and hesitant” (see paragraph numbered 4 above). 

·          The Tribunal’s refusal to accept that the applicant had an Afghan identity document (a Tazkera); and

·          The Tribunal’s further assessment that the questions which the applicant was able to answer about Afghanistan were “weak as evidence that the applicant is really from there” and that that sort of information was readily available. 

9                     In essence, the basis for the Tribunal’s decision was simply that it did not believe the applicant was a national of Afghanistan as he had claimed.  The authorities show that decisions on credibility in matters such as these are almost exclusively within the province of the Tribunal.  In my view, it was open to the Tribunal on the evidence before it to disbelieve the applicant’s claim to Afghani nationality.  That is, there was some evidence (principally the documents found in his possession and the Tribunal’s assessment of his answers to its questions) for that conclusion. 

10                  I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error.  The Tribunal, in the initial part of its reasons, set out the relevant law correctly.  There was nothing later in its reasons to suggest that it did not apply the law as earlier recited.

11                  At the hearing this morning I asked counsel for the respondent how the Tribunal could make the statement in the last sentence of paragraph numbered 7 of its reasons above, when it had not made a finding about the applicant’s country of nationality.  Counsel’s response was that this sentence was a typographical error resulting from the use of a precedent.  He said that there was no other way to make sense of the sentence.

12                  It seems to me that counsel’s explanation is probably the correct one.  It is not necessary for me to decide the point because, in my view, that sentence does not disclose reviewable error.  The Tribunal’s reasoning process is, as I have summarised above, sufficiently clear.  It found that the applicant was not an Afghan national.  He had not made Convention claims in relation to any other country apart from Afghanistan.  Accordingly, on the basis of the applicant’s claims, the Tribunal did not err in law or commit jurisdictional error when it concluded that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

13                  As I observed in a similar case, Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 at [26] I think it would be considered, by right-minded persons, to be unconscionable and unthinkable if the respondent were to cause the applicant to be removed to Afghanistan without giving him an opportunity to make a fresh application for a protection visa, if the applicant were so minded (bearing in mind the recent developments in Afghanistan).  Counsel for the respondent indicated that the applicant would not be removed to Afghanistan “… on the basis of the present application …”.  In view of the considerable distress exhibited by the applicant during the hearing, I suggested that the respondent’s department might, as a matter of common humanity, explain to the applicant precisely what the respondent’s intentions were for the applicant’s future if his application were dismissed by the Court. 

14                  As, in my opinion, the Tribunal made no reviewable error, whether error of law or jurisdictional error, the application will be dismissed with costs. 

Associate:

Dated:              7 March 2002