FEDERAL COURT OF AUSTRALIA

SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598

SCAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 67 OF 2002

von DOUSSA J

ADELAIDE

10 MAY 2002

THE COURT ORDERS THAT:

1.                  Application dismissed.

2.                  Applicant to pay the respondent’s costs 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 for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 14 February 2002.  The Tribunal affirmed a decision of a delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the applicant a protection visa.

Background Facts

2                     The applicant arrived in Australia in April 2001.  He claimed to be a citizen of Afghanistan.  On 23 July 2001 he lodged an application for a protection visa.  His entitlement to this visa relevantly turned on whether the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, as defined in s 5(1) of the Migration Act 1958 (the Act).  Australia has protection obligations to people who are refugees within the meaning of the Refugees Convention and the Refugees Protocol.  The applicant’s claim to fall within the definition of refugee in Article 1A(2) of the Refugees Convention appears to have rested upon allegations that he was at risk of persecution by the Taliban for reasons of his race and religion (being a Hazara and a Shia Muslim), and further on the ground that he and his family were members of a particular social group (namely “rich” people, his father being the owner of a taxi).

3                     In his visa application the applicant said he was born in Aaghil Balna, Hitcha, Jaghuri, Ghazni, Afghanistan in 1986.  He said that from 1992 until 1996 he lived in Bedak, Sang-e-Masha, Jaghur, Ghazni, and during that period he completed four years of education.  He said that he left Afghanistan following harassment by the Taliban who had assumed control of Jaghuri three years prior to his departure.  As his father was considered a rich man by the Taliban they had extorted money from him.  He said his family was harassed by the Taliban because they had no weapons to donate.  He said that approximately fourteen months before his departure from Afghanistan he was beaten by the Taliban because he did not donate weapons.  He said he was taken away and only released when his father came to get him.  He was permitted to leave but his father was kept for fifteen days until he paid a fee for his release.  The applicant said his father was beaten by the Taliban whilst in detention.  He also said that two years before he departed Afghanistan his uncle was arrested by the Taliban for having two pistols.  His uncle was accused of involvement with Hezb-e Wahdat party, and that he subsequently disappeared.

4                     The applicant said that about three months before he left Afghanistan his father complained to the village elders regarding extortion by the Taliban.  Following this complaint he said his father was again detained by the Taliban and only released following further payments to them. 

5                     The applicant said that about eight months before he left Afghanistan he and his father were detained by the Taliban, held for two days, and harassed regarding their religion.  The village elders secured their release by paying a fee to the Taliban.

6                     The applicant said that his father decided to send him overseas when the family was advised that the applicant had been conscripted by the Taliban, and his name appeared on a list.

7                     The applicant was interviewed by a delegate of the respondent on 30 July 2001 when he substantially re-stated his earlier claims.  He said that he had some difficulty expressing himself and appeared not to recall all the claims he had previously made.  He said that he had no experience with interviews and he did not know what was expected of him.

8                     Following that interview the delegate commissioned a language analysis to determine the applicant’s country of origin.  A report by Eqvato Stockholm, dated 21 August 2001, found that the applicant’s “Hazaragi dialect is Pakistani”.  The examiner stated that the applicant pronounced many words with a Pakistani pronunciation and used Urdu words.  The examiner expressed the opinion that the applicant’s dialect “may with considerable certainty be said to originate from:  Pakistan, Quetta”.

9                     The applicant was informed of the language analysis and asked for his comment.  He provided a response through an adviser.  He stated that he had lived throughout his life in Ghazni, Afghanistan.  He stated that he had an uncle who lived in Quetta who had returned to Ghazni with his family, including his wife and children who were born in Quetta.  The applicant said that his uncle was taken by the Taliban and subsequently disappeared.  The applicant said that his father subsequently supported his aunt and cousins over four years.  He said they spoke with a Pakistani accent and he adopted that accent.

10                  The delegate rejected the visa application, finding that the applicant did not present a credible account of his circumstances.  The delegate considered that his claims had not been presented consistently, some were implausible, and the linguistic analysis did not support his claim that he lived his entire life in Afghanistan.

11                  The applicant sought a review of this decision by the Tribunal.  The Tribunal received a submission on the applicant’s behalf prepared by his adviser.  The adviser essentially re-stated the applicant’s claims and argued that no weight should be given to the language analysis commissioned by the department as Eqvator did not provide adequate reasons for its conclusions, and there was insufficient information regarding the analyst’s qualifications and experience. 

12                  The Tribunal also received a further submission from the applicant’s adviser with a letter to the Tribunal from a Mr Syed Hassan Hussaini who said he could confirm that the applicant was indeed from Ghazni as he claimed.  In his letter Mr Hussaini said that he came from the Jaghuri district in the province of Ghazni.  He said he knew the applicant’s father, mother and grandfather very well.  He gave details of places where he claimed to have seen the applicant’s mother and father.  He said that he saw his father in Sang-e-Masha town many times.  He wrote:

“If RRT want to know more information about (the applicant) then I am ready to give witness evidence in front of RRT at any time that (the applicant) is from Afghanistan.  Please sir send my witness evidence statement to the RRT as soon as possible and inform the RRT about my witness evidence.”

13                  Mr Hussaini gave a telephone number where he could be contacted and his home address.

14                  In yet another submission to the Tribunal the applicant’s adviser provided a brief letter from a psychologist who said that the applicant was suffering from stress and had some problems with comprehension but it was the psychologist’s view that “when his account is taken slowly and when questions are asked to suit his level” he is able to “explain many of the apparent problems raised by the case officer” in the decision under review.

15                  The Tribunal reported that at the Tribunal hearing the applicant was extremely nervous and had some difficulty expressing himself.  However, he essentially repeated his claim that if he was returned to Afghanistan he would be targeted by the Taliban and could be killed if he was forced to fight on their behalf. 

16                  The Tribunal discussed with the applicant Eqvator’s conclusion that he spoke like a person from Pakistan rather than Afghanistan.  The applicant re-stated his claim that his language was influenced by his relatives from Pakistan.  Towards the end of the hearing the Tribunal indicated to the applicant that a second linguistic analysis would be obtained by submitting the tape of the Tribunal hearing to another linguist.  The applicant said he had no objection to that course, notwithstanding a possible delay that would result.  The Tribunal said to the applicant:

“… if I accept this linguistic analysis that you’ve got a Pakistani accent and that you’re from Quettar, then your application will fail … it’s probably in the long run in your best interest if you try and hold on a bit longer, allow me some time to investigate this matter more thoroughly and possibly, you know, get a clearer idea as to how, how this language analyst was able to come up with this conclusion, and to determine whether there’s been a mistake … I guess what I’m saying to you is, in the long run, considering all you’ve been through, it’s better if you try to hold on a bit longer and allow me some time to investigate your claims further.  Because if we rush to a decision now, I will have to accept this linguistic analysis and I will have to find that you’re from Pakistan, so you have to try and be a little bit patient and wait for some further inquiries to be made.  I guess that’s what I’m, that’s basically the message I’m trying to get through to you.  Now you’ve done very well today, you’ve provided the right answers, you, you’ve um, expressed yourself very well.  We’ve just got this one problem of this linguistic analysis that, that we need to sort out.”

17                  The Tribunal informed the applicant that if the Tribunal receives anything that might contradict his claims the Tribunal would have to talk with him again. 

18                  The Tribunal commissioned a second linguistic analysis by Dr Sayed Mousavi of St Anthony’s College, Oxford University.  The Tribunal describes Dr Mousavi as an Afghan expert.  Dr Mousavi was provided with the tape of the Tribunal hearing and later provided a written report in which he expressed the following conclusion:

“The accent on ‘tape A’ suggests two possible findings.  First that the applicant is originally from Aecha of Jaghouri district (according to himself), but migrated as a child to Quetta and has grown up amongst the Hazaras of Quetta.  Or he was born in Pakistan and is from Quetta.  On the basis of his knowledge about his village it seems more likely that the former possibility is more likely, i.e. that he is originally from Aecha village of Jaghouri district.  On the basis only of a linguistic analysis of his Hazaragi accent he would appear to be a Pakistani Hazara from Quetta.”

19                  In the body of his report Dr Mousavi said:

“The Persian spoken by the Hazaras of Quetta is one of the most polluted and distorted, to the point where it is very difficult for non-Hazaras to comprehend.  For example, the interpreter in this case many times did not understand what the applicant was saying, e.g. he interpreted the word ‘balnah’ as the name of a sub-village, whereas it is a word meaning ‘higher’ in the geographical sense, i.e. higher Aecha and lower Aecha.  The applicant’s accent also bears influences of Tehrani and Kabuli accents, Pashto (Qandahari accent), Baluchi, Urdu and English.  The applicant may originally be from Aecha, but must have spent many years living in Quetta.  The phrases and colloquialisms used by the applicant suggest he has had wide social exposure to many different accents, and that he has lived mainly in the city rather than exclusively in a village.”

20                  After Dr Mousavi’s report was received, the Tribunal, by a letter to the applicant, provided him with the content of the report.  The letter concluded:

“This information is relevant because the conclusion of Dr Mousavi is essentially the same as the earlier report that you speak with a Quetta accent.  This contradicts your claim that you lived in Afghanistan throughout your life and raises doubts regarding the credibility of your claims.

You are invited to comment on this information …”

21                  The applicant’s adviser replied by letter saying that he had discussed Dr Mousavi’s report with the applicant who re-stated his claim that he lived in Afghanistan throughout his life and that his accent was greatly influenced by relatives from Quetta.  He also said that in the four years he attended school in Sang-e-Masha he was exposed to Pashtu, Tajik and Hazara dialects. 

Findings and Reasons of the Tribunal

22                  The Tribunal observed that it was not appropriate to take an overly stringent approach to questions of credibility, and that the Tribunal must be sensitive to special considerations which may arise out of their difficulties of proof and problems of communication faced by applicants, and the problems flowing from the experience of trauma and stress prior to arrival in Australia.  Nevertheless, the Tribunal concluded that the applicant did not present a truthful account of his circumstances and that the Tribunal was not satisfied as to his general credibility.  It said it could not be satisfied by the evidence that the applicant was a citizen of Afghanistan or that he ever lived there.  The Tribunal concluded that the applicant had fabricated all his claims regarding his life in Afghanistan to support his protection visa application.  The Tribunal rejected his claims regarding his life in Afghanistan and his claims regarding anticipated difficulties were he to return to Afghanistan.  The Tribunal considered there was no credible evidence on which it could be satisfied that the applicant had a well founded fear of persecution in Afghanistan and accordingly he did not satisfy the criteria for a protection visa.

23                  In its reasons for these conclusions, the Tribunal noted the submissions of the applicant’s adviser as to his background and communication difficulties, and the psychologist’s comments, but said:

“Nevertheless, irrespective of the reasons for the applicant’s poor performance during interviews, the Tribunal finds that the applicant was only able to provide general and vague details of his circumstances in Afghanistan.  For this reason the Tribunal relies on language analysis to determine the applicant’s background. 

Two language analysis independently found that the applicant speaks like a person who either spent his entire life or most of his life in Quetta, Pakistan.  The analysis commissioned by the Department found with considerable certainty that the applicant’s language originates from Quetta, Pakistan.  However, the Tribunal does not rely on that language analysis and prefers to rely on the language analysis of Dr Mousavi, a known expert on Afghanistan and Hazaras.  He found that the applicant has a distinct Quetta accent.  Dr Mousavi, advised that the applicant may have been born in Afghanistan but his language indicates that he spent most of his life in Quetta.  The Tribunal accepts Dr Mousavi’s conclusion that the applicant’s language indicates a person who spent most of his life in Quetta, Pakistan.

The applicant claims that he adopted the accent of relatives from Quetta.  He also claims that his language was further influenced by accents he heard while attending school in Sang-e-Mashah.  He also submitted a letter from a witness who claims to have known the applicant in Afghanistan.  The Tribunal does not accept any of these claims.  The Tribunal does not consider it plausible that the applicant lived in Afghanistan throughout his life and yet speaks like a person from another country.  Dr Mousavi found little trace in the applicant’s speech of the Hazaragi spoken in Afghanistan.  The Tribunal has formed the view that if indeed the applicant was raised and educated in Afghanistan, as he claims, his language would reflect that background.  The Tribunal does not consider it plausible that contact with relatives from Pakistan, and random exposure to Pashtuns, Tajiks and Hazaras in Sang-e-Mashah, could influence the applicant to such an extent as to abandon his primary language and adopt another.  The Tribunal also does not accept as credible the witness’s evidence that the applicant lived in Jaghuri before travelling to Australia.  It is the Tribunal’s view that if indeed the applicant lived in Jaghuri his language would reflect that background.  Accordingly, the information provided by the witness is not accepted by the Tribunal.”

Applicant’s submissions on review and decisions thereon

24                  Counsel for the applicant contended that the Tribunal’s reasons reflected error of law in a number of respects which are reviewable on an application under s 39B of the Judiciary Act 1903 notwithstanding the privative clause provisions of Part 8 of the Act, as the errors of law constituted jurisdictional errors:  see Boakye-Danquah v MIMIA [2002] FCA 438 per Wilcox J and Kwan v MIMA [2002] FCA 498 per Finkelstein J.  It will only be necessary to consider these decisions and the scope of the privative clause provisions if the grounds of review advanced demonstrate error of law that would otherwise constitute a ground for review of an administrative decision.

Ground 1 – the Tribunal failed to consider the possibility that it was wrong

Ground 9 – the Tribunal erred in assessing whether the applicant’s fears of persecution were well founded

25                  It is convenient to deal with these two grounds together.  Counsel for the appellant contended that the Tribunal erred in the approach which it took in deciding whether the applicant faced a real risk of persecution if he returned to his country of claimed nationality.  In relying almost exclusively on its acceptance of Dr Mousavi’s linguistic analysis it is submitted that the Tribunal failed to give any weight or significance to the fact that Dr Mousavi’s evidence expressly left open the possibility that the applicant was a person who originated from Afghanistan.  In turn this raised a possibility that he was from Aecha as he alleged, and would run the risk of persecution in the manner he claimed.  Counsel submitted that the non-acceptance of the applicant’s evidence was not sufficient to discharge the responsibility of the Tribunal to be satisfied that there was no possibility that the applicant was at risk from the Taliban.  In short, the Tribunal failed to consider the possibility that its conclusion based on Dr Mousavi’s evidence was wrong.  Counsel argued that these contentions are in accordance with the reasoning of the judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, in particular at 574.

26                  (This argument, if correct to this point, would raise further questions, not considered by the Tribunal, as to whether such a risk continued to exist given the changes in Afghanistan brought about with the ouster of the Taliban.  For the purposes of deciding the present application this is not a relevant consideration.)

27                  I do not accept that the Tribunal fell into error in these ways.  The Tribunal was confronted with information which raised a serious doubt as to the credibility of the evidence which the applicant gave about his place of origin, his claim being that he had always lived in Afghanistan.  That assertion concerned a “past fact” the determination of which was of central importance in deciding whether the applicant would be exposed to future risk of persecution.  Whilst the Tribunal has not in so many words said that it has made the adverse findings against the applicant on the balance of probabilities, the findings should be so understood.  A fact finding process based on the balance of probabilities necessarily carries with it the possibility that the finding might be wrong.  However, it does not follow that findings as to past facts made on the balance of probabilities are reached by a process that involves error of law on the Tribunal’s part.  In substance, the argument advanced by the applicant in this case is the argument which a Full Court of this Court reject in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 at 548 – 551.  In that case the Court held that the primary judge had not fallen into error in saying that:

“It (the Tribunal) is more likely to arrive at the correct or preferable decision if its obligation is to determine the existence of facts in accordance with the civil standard except in respect of those matters where the nature of what must be decided makes this inappropriate.”

28                  In Guo’s case at 575 their Honours said:

“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

29                  In making findings as to what occurred in the past, it is appropriate for the Tribunal to make findings based on the balance of probabilities.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294 Kirby J said:

“There is no suggestion in Chan that this court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood:  Chan (1989) 169 CLR 379 at 422;  87 ALR 412.  The process of determination involves the delegate’s making findings as to primary facts … as so found, and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned to China.”

30                  In the present case the Tribunal was required to make a finding regarding the assertion that the applicant had always lived in Afghanistan.  Frequently the assertions of an asylum seeker that he or she was of a particular nationality and came from a particular country would not be the subject of conflicting evidence, and accordingly would be accepted as a matter of course by a delegate and the Tribunal.  In the present case, however, there was evidence which cast serious doubt upon the applicant’s account of his personal history.  If he came not from Afghanistan but from Pakistan, his claim that he would suffer risk of persecution for the reasons he gave would lack foundation, and could not be accepted.  The Tribunal was required therefore to make a finding about the applicant’s claimed personal history.  It is apparent from the Tribunal’s reasons for decision that it appeared to have no doubt that its findings were correct, and having reached the conclusion which it did about his history no room remained for inferring that the applicant had a “well founded fear of being persecuted” for a Convention reason. 

Ground 2 – Evidence of Dr Mousavi was inherently unreliable

31                  Counsel contended that Dr Mousavi’s evidence was inherently unreliable for a number of reasons.  First it was said that the “contents of tape A” was not identified.  In my opinion there is no substance in this complaint.  It is clear from the transcript of the Tribunal hearing itself that the tape related to that hearing.  The Tribunal arranged for the analysis and there is no reason to think that there could have been any confusion as to the tape which was analysed.  The opinion of Dr Mousavi itself also supports the view that his analysis related to a recording of the hearing.

32                  Next it was said that only a portion of the tape of the hearing before the Tribunal was provided, and it is unclear what portion that was.  Again, I do not think there is any substance to this complaint.  It rests solely on the sentence in the letter instructing Dr Mousavi which reads:

“The RRT will provide an audio tape (‘tape A’) containing a sample of an applicant’s speech believed to be in a Dari dialect.”

It is not a proper interpretation of this sentence to read the word “sample” as meaning only a portion of the taped hearing.

33                  Counsel also contended that because the terms of Dr Mousavi’s contract required him to destroy the tape at the completion of his analysis, it is now not possible to identify what conversation he analysed, and the applicant cannot be assured of knowing precisely what parts of the hearing were provided.  I reject this submission as there is no reason to doubt that the tape contained a recording of the whole hearing, and is identical to the tape which was provided to the applicant, and later transcribed for the purposes of the hearing before this Court.  That tape is presumably still available to the applicant. 

34                  It was also argued that doubt as to the value of Dr Mousavi’s evidence arises from the fact that Dr Mousavi in his report makes mention of certain words spoken in English whereas the letter of instruction to Dr Mousavi says that:

“The applicant clearly identifies himself at the beginning of the hearing and speaks only in a language other than English.”

35                  The only English word used by the applicant to which Dr Mousavi makes reference is “camp”.  The transcript of the hearing shows that the word was used as part of a description of events occurring whilst the applicant was in detention in Australia.  The use of an English word or words in that context is understandable.  In my opinion there is no substance in this ground of complaint.

Ground 3 – Breach of s 420 of the Act

36                  Counsel contended that Dr Mousavi’s report indicates that the applicant was not accorded a fair hearing insofar as the interpreter at the Tribunal hearing was not able properly to interpret the words spoken by the applicant.  This contention is based on the statement in Dr Mousavi’s report that:

“For example, the interpreter in this case many times did not understand what the applicant was saying, e.g. he interpreted the word ‘Balnah’ as the name of a sub-village, whereas it is a word meaning ‘higher’ in a geographical sense …”

37                  Read in context, I do not think that statement in Dr Mousavi’s report provides any ground for contending that the interpretation available to the applicant during the hearing was other than entirely satisfactory.  The transcript of the hearing, which reflects only the words of the Tribunal and the interpreted answers of the applicant, lends no weight to the suggestion that the Tribunal and the applicant were at any time at cross purposes.  The applicant has the benefit of the tape which records the hearing.  It has not been suggested by the applicant that there was any material misinterpretation which have caused the Tribunal to proceed upon a wrong basis.  Absent an allegation of this kind and material to support it, there is no basis to argue that the Tribunal failed to act according to “substantial justice” within the meaning of s 420(2)(b) of the Act.

Ground 4 – Breach of ss 424 and 427 of the Act

38                  It was submitted that the Tribunal erred in failing to have regard, or sufficient regard, to the evidence of Mr Syed Hassan Hussaini.  In its reasons for decision the Tribunal recorded that it had received Mr Hussaini’s statement as part of a submission from the applicant’s adviser.  In its findings, relevantly set out earlier in these reasons, the Tribunal referred to the applicant’s claim that he had adopted the accent of relatives from Quetta and was further influenced by accents heard whilst he was attending school in Sang-e-Masha.  The Tribunal continued:

“He also submitted a letter from a witness who claims to have known the applicant in Afghanistan.  The Tribunal does not accept any of these claims.”

39                  In the face of these statements it is not correct to say that the Tribunal did not have regard to Mr Hussaini’s statement.  Plainly it did, but having considered it, then rejected it.  On the evidence it was open to the Tribunal to take this course.  The Tribunal acted upon the linguistic analysis of Dr Mousavi and his opinion that the applicant’s accent, phrases and colloquialisms were not consistent with him having always lived in Afghanistan.  The Tribunal did not consider the applicant’s explanation that he had adopted the accent of relatives and of others whilst he attended school as plausible.  Having rejected these explanations, Mr Hussaini’s statement did not assist in explaining the linguistic inconsistency raised by Dr Mousavi’s opinion. 

40                  Section 424 of the Act empowers the Tribunal to seek additional information that it considers relevant and s 427 gives power to the Tribunal to take evidence on oath and for that purpose to subpoena a person to appear before the Tribunal.  These are enabling powers and the mere fact that the Tribunal has not exercised them to investigate a possible avenue of enquiry suggested by other material before the Tribunal does not indicate an error of law on its part.  Of importance to this case is the provision in s 426(2) of the Act which enables the applicant to give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a notified person.  No such request was made in this case.  On the contrary, the applicant’s adviser forwarded Mr Hussaini’s letter to the Tribunal and invited the Tribunal to act on that letter.  The Tribunal cannot now be criticised for having done so, and the Tribunal did not fall into procedural error by not arranging for Mr Hussaini to give additional evidence.

41                  As Mr Hussaini’s statement of evidence did not resolve the conflict between the applicant’s claims and the linguistic analysis it was open to the Tribunal to act upon the linguistic analysis and to reject Mr Hussaini’s statement of evidence.

42                  In substance, the complaints which the applicant makes about the Tribunal’s conclusions in this and the next ground for review seek to challenge the merits of the Tribunal’s conclusions by arguing that the Tribunal should have taken a different view of the totality of the evidence, and have accepted the applicant’s claims.  Provided there was evidence upon which the Tribunal could reach the conclusions which it did, no error of law is demonstrated merely by showing that alternative conclusions would also have been open on that evidence.  It is for the Tribunal, not this Court to determine the facts.

Ground 5 – The Tribunal erred in failing to have any or any proper regard to relevant evidence

43                  Counsel contends that the Tribunal had before it the following evidence to support the applicant’s claim as to his nationality, namely the applicant’s oral evidence, the evidence from Mr Hussaini, the applicant’s claims in his visa application, and the evidence of Dr Mousavi that one of two possibilities was that the applicant came originally from Aecha.  This is a complaint that the Tribunal made the wrong findings of fact on the material before it.  For the reasons just given, error of law is not demonstrated by showing that findings could have been reasonably made on the evidence which are different from the findings which the Tribunal made. 

Ground 6 – Finding of a fact which did not exist

44                  This ground of review, although raised in written submissions, was not the subject of oral submissions.  It is in substance another formulation of the complaint that the Tribunal reached the wrong conclusions on the factual material before it.  The ground of appeal contends that the Tribunal made a finding that the applicant was born in Pakistan whereas the factual material did not justify such a finding.  Insofar as this ground raises a complaint that the wrong findings of fact were made, it does not allege an error of law.  The Tribunal did not go so far as to find that the applicant was born in Pakistan.  Its conclusion was that it could not be satisfied that the applicant was a citizen of Afghanistan or that he had ever lived there.  The Tribunal considered that the applicant had fabricated all his claims to support his visa application.  This was sufficient for the purposes of disposing of the visa application.  The Tribunal was not required to go further and consider possibilities, not advanced by the applicant, which, if correct might give rise to protection obligations on the part of Australia. 

Ground 7 – Evidence of linguistic analysis should only be used as a last resort

45                  Counsel submitted that evidence of linguistic analysis should be used by the Tribunal only where the Tribunal cannot otherwise make a decision on the applicant’s claims, and in this case it was argued that the applicant’s own evidence and that of Mr Hussaini was sufficient to enable the Tribunal to find that the applicant was from Afghanistan.  Again, this is another formulation of the complaint that the Tribunal reached the wrong conclusion on the factual material.  Whilst there may have been evidence which could have justified a conclusion in the applicant’s favour, the evidence also justified the contrary conclusion which the Tribunal reached.  The choice between the two open positions was a matter of fact for the Tribunal to resolve.

46                  There is no principle of law that requires that linguistic analysis, or analysis of any other kind, should only be used if the Tribunal cannot otherwise make a decision on the applicant’s claims.  On the contrary, the obligation of the Tribunal is to have regard to all probative material before it.  Part of that probative material will include the results of linguistic analysis where it is undertaken. 

Ground 8 – Breach of s 424A of the Migration Act

47                  It was submitted that the Tribunal failed to sufficiently comply with s 424A when it served notice on the applicant, through his adviser, seeking comment on the report received from Dr Mousavi.  Section 424A relevantly provides:

“(1)     Subject to subsection (3), the Tribunal must:

(a)                give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

(b)                ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;  and

(c)                invite the applicant to comment on it.”

Subsection 3 is not presently relevant.  The submission is that the Tribunal erred in the explanation it gave to the applicant about why the information contained in Dr Mousavi’s report was relevant to the review, and thereby failed to comply with s 424A(1)(b).  The relevant text of the notice to the applicant is set out in par 20 above.  The applicant was informed that the information in the report was relevant because Dr Mousavi’s conclusion, which was essentially the same as the earlier report, “contradicts your claim that you lived in Afghanistan throughout your life and raises doubts regarding the credibility of your claims”.  It is submitted that this explanation does not make clear that Dr Mousavi’s conclusion could be used by the Tribunal to find that the applicant was not even from the country he claimed to be from at all.  Rather, it was suggested that the notice would lead the applicant to assume that, besides his credit, the conclusion questioned whether he had spent the whole as opposed to some only of his life in the village.  Counsel contended that the letter never properly put to the applicant the possibility that the Tribunal would find that the applicant was born in Pakistan.  I have already observed that the Tribunal did not in fact make a finding that the applicant was born in Pakistan.  It did however on the basis of Dr Mousavi’s report conclude that it could not be satisfied that the applicant is a citizen of Afghanistan or that he ever lived there.

48                  In my opinion the letter forwarded by the Tribunal pursuant to s 424A to the applicant did sufficiently identify the relevance of the report received from Dr Mousavi.  Moreover, the notice elicited a submission from the applicant’s adviser which repeated the applicant’s earlier assertion that he came from the Jaghuri district of the Ghazni province in Afghanistan and that he had never, with the exception of four years of schooling as a child, been outside that area.  The response conveyed the applicant’s instruction that his manner of speaking was the same as that of his cousins and was influenced by the long period he had spent in their company.  The letter made the following submission:

“Hence, it is quite possible that his manner of speaking was influenced by his cousin’s dialect, but it does not conclusively point to his having lived in Quetta for all or most of his life.”

The letter also reported that the applicant said that, at the age of five, he was sent to school in Sang-e-Masha, which was his only venture outside his local area and was there exposed to a variety of dialects at a very early age.  That response does not indicate that those advising the applicant were under any misapprehension as to the relevance which the Tribunal attached to Dr Mousavi’s opinion.

Ground 10 – No bona fide exercise of power

49                  The submission that the Tribunal member did not exercise the review function in good faith rests on the tenuous proposition that because, towards the end of the hearing, the Tribunal member said to the applicant “now you’ve done very well today, you’ve provided the right answers … you’ve expressed yourself very well” (see par 16 above) whereas the Tribunal later rejected the applicant’s claims.  Further it was said that the Tribunal’s failure to conduct further investigations with Mr Hussaini provides additional support to the claim that the Tribunal did not exercise its power bona fide.  In my opinion this is an extreme allegation with no basis whatsoever to support it.  The statement of the Tribunal which is relied upon is taken out of context.  The Tribunal made it clear that there was an ongoing difficulty with the applicant’s claim, namely the conclusion reached in the first linguistic analysis, unless that conclusion could be put aside.  In light of Dr Mousavi’s conclusions, there is nothing inconsistent between what the Tribunal said to the applicant and its final decision.  Moreover, to criticise the Tribunal for the statement which it made overlooks the circumstances in which the statement was made.  The Tribunal was obviously attempting to give a sympathetic, kindly hearing to the applicant but, at the same time, make it clear to him that there was a fundamental problem which remained notwithstanding the consistency in the several statements which he had given articulating his claims. 

50                  In my opinion none of the grounds of review advanced on the applicant’s behalf demonstrate an error of law by the Tribunal.  In these circumstances the occasion does not arise to discuss the scope and effect of the privative clause provisions of the Act which came into force on 2 October 2001.  In my opinion the application for review must be dismissed.

Associate:

Dated:

Counsel for the Applicant:                     Mr Dominic Agresta

Solicitors for the Applicant:                   Condello & Co

Counsel for the Respondent:                 Ms Sashi Maharaj

Solicitors for the Respondent:                Sparke Helmore

Date of Hearing:                                   30 April 2002

Date of Judgment:                                 10 May 2002