FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural Affairs

[2002] FCA 658

MIGRATION – application for protection visa – consideration of Yusuf principles – whether Tribunal failed to have regard to relevant considerations – whether Tribunal had regard to irrelevant considerations – whether considerations giving the Tribunal an adverse impression of the applicant’s demeanour at a hearing are relevant considerations – application for review dismissed.

MIGRATION – application for protection visa – whether decision of Tribunal based on non-existence of particular fact later found to have existed – standard of proof – ground of review not intended to provide applicant an opportunity to re-litigate matters which might properly have been litigated before the Tribunal.

Migration Act 1958 (Cth), ss 36(2), 65(1), 476(1)(b), 476(1)(c), 476(1)(e), 476(1)(g), 476(4)(b)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 – discussed

Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036 – referred to

Chhour v Minister for Immigration & Multicultural Affairs [2001] FCA 911 – referred to

Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898 – referred to

Khan v Minister fro Immigration & Multicultural Affairs [2001] FCA 736 – referred to

Lay Kon Tji v Minister for Immigration & Ethnic Affairs [1998] 1380 – referred to

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 - discussed

HASSAN ALI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.118 of 2001

MANSFIELD J

30 MAY 2002

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant is a young man, aged about 21.  He arrived in Australia on 30 January 2001, and applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 27 February 2001.  A delegate of the respondent refused to grant that visa on 22 May 2001.  The Refugee Review Tribunal (the Tribunal) then affirmed that decision on 23 July 2001.  The applicant seeks judicial review of the Tribunal’s decision.  The application was made prior to 2 October 2001, so the amendments to Part 8 of the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) do not apply.  The grounds of review are those available under s 476 of the Act as it was in force prior to 2 October 2001.

the claims

2                     The applicant claimed to be of Afghani nationality, of Hazara ethnicity, and a Shi’a Muslim.  He said he came from Qara village, Angori, in the Jaghori district of the Ghazni province of Afghanistan.  From the age of nine he had worked as a shepherd for his father and for other people in his village, and had daily taken his flock of sheep and goats to the hills area around his village passing the Angori Bazaar on the way.  Some two and a half years before he fled Afghanistan, the Taliban moved into his area.  He claimed to have left Afghanistan because he feared further persecution by the Taliban.  He was harassed for not having a beard.  The Taliban seized sheep from the flock he was tending.  When he resisted, he was assaulted and threatened with death.  His father had also been assaulted on occasion by the Taliban.  Both the applicant and his father had separately been arrested and detained by the Taliban, and accused of hiding weapons.  Young men had been taken from his village by the Taliban and had not been seen since.  His father arranged for him to be smuggled out of Afghanistan, fearing for his safety from the Taliban.

the tribunal’s reasons

3                     The Tribunal affirmed the decision of the delegate of the respondent because it was not satisfied that the applicant is a national of Afghanistan as he claimed.  It concluded that he is probably a Pakistan national of Hazara ethnicity.  Because the applicant’s claims to have a well-founded fear of persecution arose from his claimed circumstances in Afghanistan, and the Tribunal concluded that he was not from Afghanistan, the Tribunal was not satisfied that the applicant is a person who has a well-founded fear of persecution for a Convention reason.  Consequently, it was not satisfied that he is a refugee as defined in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  In turn, that meant that the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and so the criterion for eligibility for the visa contained in s 36(2) of the Act was not met.  Section 65(1) of the Act then required the Tribunal to affirm the decision of the delegate not to grant to the applicant a protection visa in those circumstances.

4                     The Tribunal concluded that the applicant is from Pakistan, rather than from Afghanistan, because it did not believe his evidence as to his background and circumstances, and because of certain documents which were found upon him on his arrival in Australia.  It explained the reasons for doubting his credibility in some detail.  It regarded his knowledge of village life and farming, and his knowledge of his area and its relationship to other centres as “uneven”.  It considered his demeanour at the hearing before the Tribunal on 13 July 2001 as being inconsistent with that of a diffident and inexperienced village youth.  It considered that he gave inconsistent or differing evidence about his experiences.  It regarded his evidence that he feared being taken by the Taliban as implausible, given that he claimed to have passed the Angori Bazaar every morning and every evening with his flock for some time, and the Taliban had a station there and must therefore have known of him.  He had not mentioned at his arrival interview that he had been arrested and imprisoned by the Taliban for a month, although he subsequently made such a claim.

5                     The documents found with the applicant upon his arrival in Australia suggested residence in Quetta in Pakistan.  There were two documents.  One was a National Bank of Pakistan, Quetta Branch, savings account deposit receipt in the name of Aftab Hussain, and the other was an Indonesian domestic shipping passenger coupon from Semarang to Kalabahi dated 20 January 2001 in the name of Afab Hussain.  The applicant told the Tribunal that he had those documents because he had taken them from the wallet of the people smuggler who had assisted his transport to Australia, when the people smuggler had offered him his wallet with the documents in it to provide the applicant with some spending money.  The Tribunal did not accept that evidence.

6                     For completeness, I note that the Tribunal referred to an analysis of the language of the applicant, based upon recording of an interview by him by an officer of the respondent.  It was not given particular weight by the Tribunal.  It was consistent with the applicant being an Hazara from Pakistan rather than an Hazara from Afghanistan.  It indicated that the applicant most probably has his language background in Afghanistan, but has been living and travelling for a long time between Iran and Pakistan.

the grounds of review

7                     There were two grounds of review argued on behalf of the applicant.

8                     The first invoked the grounds of review available under s 476(1)(b), (c) and (e) in a composite way.  In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 (Yusuf), McHugh, Gummow and Hayne JJ at [79]-[85] explained the interaction of those provisions.  For the purposes of the present contention, it is sufficient to note that their Honours indicated that “jurisdictional error” can be seen to embrace each of those kinds of error, and that they may well overlap.  There may be more than one characterisation of the error identified.  Their Honours said:

“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”  [82]

Later at [84], by reference to the qualification in s 476(1)(e) their Honours said:

“That qualification emphasises that factual error by the Tribunal will not found review.  Adopting what was said in Craig v South Australia (1995) 184 CLR 163 at 179, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind which par (e) deals.  That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.”

9                     The alternative ground of review was that provided by s 476(1)(g), namely that there was no evidence or other material to justify the making of the decision.  That provision is qualified and limited by s 476(4)(b) which provides:

“The ground specified in par (1)(g) is not to be taken to have been made out unless:

(a)              …

(b)              The person who made the decision based the decision on the existence of a particular fact and that fact did not exist.”

The applicant contends that the decision was based upon the finding that the applicant is probably a Pakistani national rather than the Afghani national he claims to be, and that fact did not exist.

10                  The applicant seeks to prove that that fact did not exist by adducing further evidence, not adduced before the Tribunal.  That further evidence includes an affidavit of Hussain Hussaini sworn on 21 January 2002.  He is an Afghani national who was granted a temporary protection visa under the Act in September 2001.  He deposes to having seen the applicant in a compound in the Woomera Immigration Reception and Processing Centre, and to have recognised him as a person he had seen at the Angori Bazaar on some occasions.  He says that he worked as a baker in the Angori Bazaar and that the applicant came to his shop on a few occasions to buy bread to take with him to the mountains with his flock.  The applicant also filed an affirmation on 12 December 2001 that he had recognised three people from the market place in his village whilst he had been in the Woomera Immigration Reception and Processing Centre, but he did not understand his right to require the Tribunal to consider calling those persons to give evidence at his hearing, and he was told by others at the camp that no-one would believe him anyway.  Consequently, he did not at the time indicate the availability of that evidence.  He does not know the names or whereabouts of the other two persons.

11                  The respondent opposed the reception of that fresh evidence.  It also provided an affidavit of an officer of the respondent stationed at the Australian High Commission, Islamabad.  That officer in August 2001 carried out investigations in Quetta Pakistan inter alia as to the identity of a Pakistani national named Aftab Hussein.  He had a photograph of the applicant available to him.  His affidavit indicates that people in the Hazara area of Quetta, Pakistan recognised the photograph of the applicant as a person they knew as Aftab Hussein.  He spoke in particular to a person named Abdul Hussein, a Pakistani citizen, at a particular address and that person positively recognised the photograph of the applicant as being his son Aftab Hussein of Quetta, Pakistan.  He also made inquiries of the Pakistan National Identity Card Office in Quetta.  Its documents confirm that a person named Aftab Hussein is a son of Abdul Hussein, and that Aftab Hussein had applied for a Pakistan national identity card submitting a photograph and an address which accorded with the address of Abdul Hussein.  The photograph on that document shows similarities to the applicant’s photograph available to that officer.

consideration

12                  It is convenient to quote the grounds upon which the applicant contends that the Tribunal committed jurisdictional error.  They are:

1.                  The Tribunal pointed to no evidence to justify the conclusion that the applicant’s knowledge of village life and farming was uneven.

2.                  The Tribunal appears to have had no regard to the applicant’s limited education when concluding that his knowledge of his area and its relationship to other centres was uneven.

3.                  The Tribunal had regard to a peripheral or irrelevant consideration when it concluded that his demeanour was not that of what it assumed to be the demeanour of a diffident and inexperienced village youth.

4.                  The Tribunal had regard to irrelevant considerations when it found implausible his account of being detained by the Taliban.

5.                  The Tribunal had regard to a peripheral matter when it took into account a minor inconsistency between the applicant’s two accounts of when he was detained by the Taliban.

6.                  The Tribunal had regard to an irrelevant consideration when it referred to inconsistencies in his account of his being arrested and to his father being arrested.  This lead to its rejection his ‘overall account of his circumstances and experiences’.

7.                  The Tribunal had regard to an irrelevant consideration when it found he was probably a Pakistani national on the basis of documents he carried to Australia.

8.                  The Tribunal erroneously relied on the language analysis from someone about whose identity, social and political background and linguistic expertise were inadequately known (see Jawad Ali Naz v MIMIA (2001) FCA 1591 O’Loughlin J delivered on 12 November 2001 at p.3).

13                  Decisions in this Court indicate that the High Court decision is Yusuf has not had the effect of substantially expanding the existing scope for jurisdictional review:  see e.g. Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036; Chhour v Minister for Immigration & Multicultural Affairs [2001] FCA 911; Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898; and Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736.  That is because the formulation of jurisdictional error in Yusuf did not re-define relevant considerations for the purposes of judicial review of administrative decisions.  Their Honours did not make every fact or matter alleged by an applicant which another mind might consider to be relevant to a decision to be a relevant consideration for the purposes of the Tribunal’s decision-making powers.  That is apparent from the qualification contained in the passage from Yusuf referred to above at [8] that the ignoring of relevant material and the reliance upon irrelevant material must be “in such a way as affects the exercise of its powers”.  The particular complaints of the applicant referred to above must be considered in that context.

14                  I do not accept that the Tribunal had no regard to the applicant’s limited education when considering the degree of his knowledge of his area or of his descriptions of his life and farming.  It specifically noted that his demeanour was not that of a diffident and inexperienced village youth.  The Tribunal has given limited examples of the “uneven” knowledge of the applicant, including his ignorance of the town of Jaghori and his incorrect location of the provincial capital in relation to his own village.  Its assessment of his demeanour, and its reference to apparently minor inconsistencies or vagueness in his evidence, were matters upon which it was entitled to conclude that it “was strongly suggestive of confusion over a story which did not represent the Applicant’s own recollected experience”.  Although the applicant’s description of those matters as being “peripheral” may in one sense be appropriate, they were part of the overall picture of the applicant as he presented to the Tribunal at the hearing which led to its more general conclusion.  The formation of an impression of demeanour and thus of reliability at a hearing, based upon presentation at the hearing including the way in which a person describes events or details, even minor details, or including inconsistency in those descriptions cannot be said to be irrelevant to the Tribunal’s forming a view as to the reliability of that person’s evidence.  The Tribunal’s recording of matters which transpired at the hearing on 13 July 2001 in its reasons for decision, not then repeated fully in the “findings and reasons” section of its decision, indicates the basis upon which the Tribunal might have viewed the applicant’s knowledge of village life and farming as uneven.

15                  The considerations which the applicant contended to be irrelevant, in rejecting his account of being detained by the Taliban as implausible, also involve minor, but not necessarily insignificant, inconsistencies in the applicant’s evidence.  Those inconsistencies included the month he had been arrested and detained by the Taliban, and why he might have been suspected of having fought against the Taliban (as he claimed) although he passed them or their post in the Angori Bazaar every morning and evening as he took his herd of sheep and goats to the hills.  In my view, it was also appropriate for the Tribunal to have had regard to the failure of the applicant at his initial interview with an officer of the respondent to report that he had been arrested and imprisoned for a month by the Taliban.  The Tribunal indicated that it was conscious that such interviews are brief, and that the applicant might not set out his full experiences in detail.  It was not erroneous for the Tribunal to consider such an experience, which on the applicant’s own evidence was the only time he had been detained by the Taliban for suspicion of fighting against them, as being one which would have been referred to by the applicant at that initial interview.  Nor, in my view, was it erroneous for the Tribunal to regard as significant the applicant’s failure at that initial interview to refer to his father having been twice arrested and detained by the Taliban, or to himself having been beaten by the Taliban in relation to confiscation of sheep from his herd.  The Tribunal noted the explanations offered by the applicant as to why he had not mentioned those matters at his initial interview.  It was open to the Tribunal, in my view, to conclude as it did that the belated claims made of arrest and detention by the Taliban, and mistreatment of him and of his father by the Taliban did not reflect actual experiences.

16                  I also reject the contention that it was irrelevant for the Tribunal to consider the documents carried by the applicant in determining whether it was satisfied that he was, as he claimed, a national of Afghanistan.  The documents themselves clearly pointed to the person by the name of Aftab Hussein being a resident of Quetta in Pakistan, rather than an Afghani national.  It was for the Tribunal to decide whether it accepted his explanation that he had obtained those documents because the people smuggler had offered his wallet to the applicant, with those documents in it, to assist the applicant to carry some spending money and that together they subsequently forgot about the wallet.  It was open to the Tribunal to reject that explanation as inherently unlikely.  Once the explanation was rejected, it was open also to the Tribunal to infer that the applicant attempted to conceal his true identity and his residence in Pakistan by a false explanation, and that the documents pointed to his residence in Pakistan.  The Tribunal noted independent country information that there are large numbers of Hazaras resident in Quetta in Pakistan, many of whom are Pakistan nationals.

17                  The Tribunal’s reasons, in my judgment, do not disclose that it relied upon the language analysis in the way contended for.  Its conclusion that the applicant is probably a Pakistan national of Hazara ethnicity was reached before it referred to that language analysis report in the section of its reasons dealing with its findings and conclusions.  It referred to that report only as being consistent with its conclusion, rather than in terms of supporting its conclusion.  It is not shown to have misread or misunderstood that document.

18                  Accordingly, in my judgment, it has not been shown that the Tribunal committed jurisdictional error of the nature described in Yusuf.

19                  I turn to consider the ground of review under s 476(1)(g).  There are circumstances in which evidence may be admitted at the hearing of an application for judicial review of a decision of the Tribunal to demonstrate the non-existence of a particular fact upon which the Tribunal has based its decision;  see e.g. Lay Kon Tji v Minister for Immigration & Ethnic Affairs [1998] FCA 1380.  On occasions, such evidence has been admitted to demonstrate what transpired before the Tribunal, as the particular fact said not to exist is something which the Tribunal asserted to have occurred at the hearing which is claimed not to have occurred at the hearing.  However, in my view, s 476(1)(g) is not intended to provide a visa applicant with the opportunity to re-litigate matters which might properly have been litigated and aired before the Tribunal.  The point was forcefully made in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181.  The Full Court (Sundberg, Emmett and Conti JJ) at [31] emphasised that it is not the Court’s function, once s 476(1)(g) is invoked, to undertake a qualitative assessment of the evidence and material before the Tribunal, as that would entail a reconsideration of the weight which should have been given to the evidence and other material before the Tribunal.  Their Honours added at [30]-[32] that it is not permissible to adduce evidence to contradict evidence or other material that was before the Tribunal.  They said:

“If it were permissible to adduce further evidence before the Court whenever the evidence and material before the Tribunal did not point strongly to the conclusion that the decision was justified, the Court would be called upon to reassess the weight afforded to evidence or other material by the Tribunal.  That was clearly not Parliament’s intention.”

The proposed additional evidence in this matter, if accepted, would tend to show that the applicant is of Afghan nationality.  Whether or not such evidence would have been accepted by the Tribunal is a moot point.  There was, as the Tribunal noted, significant evidence from the documents held by the applicant to explain why the applicant may have been a national of Pakistan.

20                  The onus of proving that a particular fact did not exist is a not inconsiderable one.  It is not satisfied by presenting evidence inconsistent with evidence upon which the Tribunal may have acted in finding that the particular fact did exist.  In this matter, the evidence of Hussain Hussaini is evidence which, if adduced before the Tribunal, would have been relevant to its decision as to whether the applicant was, as he claimed, from Afghanistan.  There was, however, other evidence upon which the Tribunal acted in deciding that the applicant was not from Afghanistan, but was a national of Pakistan.  That evidence included the documents found on the applicant at the time of his arrival in Australia, in the light of the Tribunal’s rejection of his explanation that they were not his documents.  The situation, if the proposed evidence is admitted, is therefore that it would require the Court to qualitatively measure the evidence of Hussain Hussaini and the applicant’s further evidence against the evidence upon which the Tribunal acted in concluding that the applicant was a national of Pakistan rather than a national of Afghanistan.  The proposed fresh evidence, in those circumstances, does not demonstrate in the way in which s 476(4)(b) contemplates that the particular fact, namely the nationality of the applicant as Pakistani, did not exist.  It is evidence which would go to that question, but does not itself establish that the particular fact did not exist or that there was no evidence which could support the Tribunal’s finding about the applicant’s nationality.  As I have indicated, consistent with the observations of the Full Court in Indatissa, the Legislature did not intend the Court upon review to embark upon a merits adjudication of the evidence partly before the Tribunal and partly fresh evidence with a view to deciding in a qualitative way whether or not a particular fact did or did not exist by deciding afresh which evidence the Tribunal might have or would have accepted if it had been provided with the further proposed evidence at its hearing, at least in circumstances where there was evidence upon which the Tribunal’s finding of the particular fact was based, and could still be based.

21                  I accordingly do not receive that fresh evidence as I do not consider that, if received, it would make out the applicant’s ground of review.  I have not referred to the affidavit of the officer of the respondent filed in response.  Before the Court that affidavit is, at least in part, hearsay.  There is an issue as to whether it should be received.  It may be relevant to show that if the matter were remitted to the Tribunal (which is not bound by the rules of evidence: see s 420), there would be yet further information available to the Tribunal upon which it could find that the applicant was of Pakistani nationality.  It is not necessary to address, in the circumstances, the significance of such material at this point.

22                  In my judgment, the application for review on that ground has not been made out.

conclusion

23                  I have accordingly reached the view that the application for review must fail.  I dismiss it.

Associate:

Dated:              24 May 2002