FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural Affairs

[2002] FCA 793

KARAR HUSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 90 of 2001

MANSFIELD J

3 JULY 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 arrived in Australia on 27 December 2000.  He applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 3 February 2001.  That application was rejected by a delegate of the respondent on 28 February 2001.  The applicant applied for the decision to be reviewed by the Refugee Review Tribunal (the Tribunal).  The Tribunal on 1 June 2001 affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa under the Act.

2                     The application to the Court to review the Tribunal’s decision was instituted prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  It must accordingly be determined in accordance with the Act as it stood prior to that date, and in particular pursuant to the grounds of review then available under s 476(1) of the Act.

3                     To be eligible to be granted the visa, it was necessary that the Tribunal be satisfied that the applicant met the criteria for the grant of the visa specified in the Act and the Regulations:  s 65(1) of the Act.  His application turned upon whether the Tribunal was satisfied that he met the criterion specified in s 36(2) of the Act, namely that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  In turn that depended upon whether the Tribunal was satisfied that he is a “refugee” as defined in Art 1A(2) of the Convention, namely a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

the applicant’s claims

4                     The applicant claimed to be a national of Afghanistan, of Hazara ethnicity and Shi’a Muslim religion.

5                     He told the Tribunal that he is aged 20, and was born in and resided in the Ulghoo Village in the Jaghuri District of the Ghazni Province of Afghanistan all his life.  He was not educated and is illiterate.  For some time prior to his departure from Afghanistan, he had worked as a mechanic.  He told the Tribunal that the Taliban moved into his area, and then after a time he experienced persecution by reason of his religion and his ethnicity.  From 1997 onwards, the Taliban demanded from him money and weapons on a regular basis.  The Tribunal came to his village and collected young people for service at the front.  He said one of his brothers had been taken by the Taliban but had escaped and had left Afghanistan.  In about April 2000 the Taliban took his father.  The applicant tried to stop them, and he was then beaten and also taken by the Taliban.  After a severe beating he was released.  His father was held for about one month.  He feared that the Taliban would continue to seek young men, including himself, to fight and be killed.  He said the Taliban selectively picked persons of Hazara ethnicity and Shi’a religion for that purpose.  Accordingly, in late 2000 he fled Afghanistan illegally, with the assistance of a people smuggler.

the tribunal’s reasons

6                     The Tribunal accepted that the applicant is of Hazara ethnicity and of the Shi’a religion.  It referred to independent evidence which clearly attested to atrocities committed by the Taliban against ethnic Hazaras in Afghanistan, and the Taliban’s attempts to enforce an extreme interpretation of Islamic observance on others, including those of the Shi’a Muslim religion.  Consequently, the Tribunal was satisfied that the Taliban’s treatment of Hazaras and Shi’ites in Afghanistan was sufficiently serious to constitute persecution.  Any fears of persecution by the Taliban on the part of an Afghan citizen who is a Shi’a Hazara would be well-founded.

7                     The Tribunal therefore identified the key issue as being whether the applicant is, as he claimed, a citizen of Afghanistan.

8                     The Tribunal identified a number of factors which caused it to doubt the applicant’s claim to have come from Afghanistan.  It said:

“There are points on which the applicant’s story has differed over time.  One relates to how long he claimed to have worked as a mechanic in Ulghoo.  Having said that he had worked for about five years when he was first interviewed, he said in his application that it was about ten years, then said it was four years and, finally, between two and three years.  The Tribunal has noted the applicant’s assertion that, as time went on he has become confused about time, but does not find this to be a convincing explanation for such wide-ranging variations.  The issue of the time he worked is of relevance to the credibility of his claim to have resided and worked in the village of Ulghoo, in Afghanistan and hence, to the credibility of his claims about his experiences in that village.

The applicant’s claims about the alleged searches by the Taliban on either side of his father’s alleged release from detention by the Taliban have also varied.  When the applicant made his initial statement, he said that the second search was specifically aimed at his home, whereas the first was part of a search of all the houses in the village.  However, at the hearing, he said the reverse; that it was the second search which was village wide.

In his statement, he claimed to have been injured when the house was searched on the last occasion, but at the hearing, he denied having said that.  In his statement he referred to one of his brothers having been abducted by the Taliban, implying that he had more than one brother.  On other occasions, he said he has only one brother.  A further discrepancy relates to the location of his workshop.  In his statement, having said that he lived in Ulghoo, he said his father had his workshop “in the bazaar”, with the inference that it was in a bazaar in Ulghoo.  His evidence at the hearing was that the workshop was in Ghojor.”

It also observed that the latter two of those discrepancies were of less significance than the others, but the discrepancies in total left the Tribunal in doubt as to the genuineness of the applicant’s claim to have come from Afghanistan.  It then observed that its doubts were increased by the inconsistency between his evidence of when things happened and the objective fact of when he arrived in Australia.  Those matters were discussed with the applicant at the hearing before the Tribunal on 27 April 2001.  The Tribunal had pointed out that there seemed to be a period of a few months unaccounted for if the applicants version of when he left Afghanistan, and the times he had spent then travelling to Australia were correct.  The Tribunal had been provided with an explanation by the applicant at the hearing, and subsequently by his migration agent, in response to that question.  It did not find those responses convincing.  It explained that the applicant had demonstrated in the course of his evidence in other respects a good concept of time, so that his explanation of confusion or difficulty in judging the lapse of time was not accepted.

9                     Finally, the Tribunal had regard to evidence of the analysis of the applicant’s language carried out on the applicant’s speech patterns, taken from a recording of an early interview following his arrival in Australia.  The Tribunal described the analyst’s report in the following terms:

“The analyst has reported that the applicant was speaking a dialect which is found in both Afghanistan and Pakistan, but said that he spoke ‘very cautiously’, and that Dari was not his ‘mother tongue’.  The analyst concluded that the applicant’s background was ‘obviously to be found in Quetta, Pakistan’.  The Tribunal has considered the applicant’s agent’s comments about possible reasons for the applicant’s hesitancy, but notes that the use of the word “obviously” indicates the analyst’s conclusion was at the strongest out of four possible levels.”

10                  The Tribunal concluded:

“Given the Tribunal’s doubts about the applicant’s claims, and the analyst’s strong conclusion that the applicant’s origins are in Pakistan, not Afghanistan, the Tribunal is not satisfied that the applicant is a citizen of Afghanistan.  It follows that the Tribunal cannot be satisfied that the applicant has a well-founded fear of persecution in that country. As he has made no claims about persecution in any other country, the Tribunal is not satisfied that he has a well-founded fear of persecution for a Convention reason.”

11                  In accordance with s 424A of the Act, prior to making use of the language analyst’s report, the Tribunal had provided that report to the applicant and his migration adviser for comment.  In particular, it drew to their attention the conclusion that the applicant’s language background is “obviously to be found in Quetta, Pakistan”.  The applicant’s migration agent had responded to that notification.  The response complained that the analysis did not specify the author or the credentials of the author of the report, and argued that no weight should be given to the analysis.  It was also submitted to the Tribunal that the applicant had picked up some English and Urdu words from Pashtuns who had taken their vehicles to his workshop for service, and from the people smuggler in the course of his travel to Australia.  The hesitancy in responding in Dari, upon which the language analyst had reported, was said to be due to nervousness, distress and pain.  Submissions were also made about the quality of the tape recording, the exposure to English words in the regions of Afghanistan near to Pakistan, and that the analysis went no further than suggesting that the applicant was from either Afghanistan or Pakistan. 

12                  In reaching its view as to the weight to be attributed to the language analysis report, the Tribunal noted independent country information that Pakistani Hazaras speak with an accent very different from that of the Hazaras from the Hazarajat in Afghanistan, because the latter speak a “very pure Persian with a Hazaragi accent and dialect” whereas the former “speak a Persian greatly influenced by Urdu and English”. 

13                  Following the hearing, the applicant’s agent sought, and was granted, an extension of time in which to make a further submission.  That submission was made on 23 May 2001.  The Tribunal recorded the agent had sought the extension because the applicant had told her “that his earlier statements were incorrect and that he had spent several months in Pakistan prior to coming to Australia and wished to inform the Tribunal of this”.  The agent told the Tribunal that she had received a signed statement to that effect from the applicant, but he had later said he was unprepared for the statement to go forward as it was not the truth.  The applicant had told her that he had presented that version of events because he thought his agents were advising him to do so and because others had told him to do so to explain his knowledge of some Urdu words.  The agent said the applicant stood by the evidence he had given under oath.

14                  The details of the language analysis were recorded by the Tribunal.  The analyst said the applicant “obviously is using an accent occurring in Pakistan”.  He “speaks Dari very cautiously with a dialect occurring in both sides of the border between Afghanistan and Pakistan”, and “his sentence structure, choice of words (and) his hesitation when speaking and using Dari words shows that Dari is not his mother tongue”.  The analyst noted that the applicant “frequently uses English words, common in Urdu language,” and “also uses Urdi words with a typical Pakistani accent”.  The analyst concluded that the applicant’s “language background is obviously to be found in Quetta, Pakistan”.  That assessment was the highest degree of probability upon which language analysis reports are made, in the range of “obvious”, “most probably”, “probable” or “possible”.  It was in that context that the Tribunal made use of the language analysis report in the way referred to.

GROUNDS OF REVIEW

15                  There were three general grounds of review argued on behalf of the applicant.

16                  The first sought to enliven s 476(1)(g) and 476(4)(b) of the Act, in respect of the Tribunal’s “finding” that the applicant is from Pakistan.  Within the terms of those provisions, it was argued that there was no evidence or other material to justify the making of the decision, because the decision was based upon the existence of a particular fact, namely that the applicant came from Pakistan, and that fact did not exist.  The means of proving the non-existence of that fact was by the adducing of fresh evidence on the application before the Court.  It was not argued that the Tribunal had somehow been in error in not having procured that evidence at the time of its hearing.

17                  The second ground of review related to the Tribunal’s use of the language analysis report.  It was argued that the use of the language analysis report by the Tribunal was not authorised by the Act or the regulations, was an improper exercise of the power conferred by the Act, and involved an error of law, so as to enliven the grounds of review available under s 476(1)(c), (d) and (e).

18                  Thirdly it was argued that the Tribunal had erred in a way which demonstrated that it did not have jurisdiction to make the decision, that the decision was an improper exercise of the power conferred by the Act, or that the decision involved an error of law so as to enliven the grounds of review available under s 476(1)(b), (d) and (e).  The foundation for that contention was the observations of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22 where 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.”

The contention was that the Tribunal had inappropriately and wrongly imposed an onus of proof upon the applicant, demonstrated by the rejection of his evidence on the ground of inconsistencies which were of relative insignificance.  It was contended that the Tribunal had asked itself a wrong question or identified a wrong issue by focussing too much upon the relatively minor inconsistencies in the applicant’s evidence.

consideration of grounds of review

19                  To make out the claim that the particular fact that the applicant is a national of Pakistan, and not a national of Afghanistan, did not exist, the applicant seeks to tender on this application two affidavits.  Ali Khan Rezaee deposes in an affidavit of 6 December 2001 that he is an Hazara from Afghanistan, who was in the Woomera Immigration Reception and Processing Centre (the Woomera IRPC) between March and May 2001.  He was then granted a temporary protection visa under the Act.  Until his arrival in Australia, he owned a restaurant and a shop in Dari Yosef.  He says that he was born in Jaghuri and frequently went back to Jaghuri and surrounding towns including to the bazaar at Ghozor, to buy goods for his shop.  He further says that he often saw the applicant there, working in a mechanical repair shop.  He did not know the applicant or do business with him.  He recognised the applicant whilst they were together at the Woomera IRPC, and he recalled then where he had previously seen him.  He also says he knows of Ulghoo, a small village about 30 minutes walk from the bazaar in Ghozor.  The other affidavit is from Mohammed Rajab, sworn on 30 November 2001.  He also is an Hazara from Afghanistan, who was in the Woomera IRPC between early February 2000 and May 2001.  He too was granted a protection visa under the Act.  He says that in about 1995 he was driving in the Ghazni area when his car broke down.  He took it to a mechanical repair shop in a bazaar in Ghozor.  He there met the applicant, then aged about 13 or 14 years, who was helping out the mechanic and he was told by the applicant that the mechanic was the father of the applicant.  He then saw the applicant again in the Woomera IRPC.

20                  The Court has power to receive further evidence:  s 27 of the Federal Court of Australia Act 1976 (Cth) and O 52 r 36 of the Federal Court Rules.  The principles upon which it will do so are well established:  see e.g. Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 per Lockhart, Wilcox and Gummow JJ at 367-369.  The fresh evidence should not be admitted unless it is “almost certain” that, had it been available and adduced before the Tribunal an opposite result would have been reached:  see Orr v Holmes (1948) 76 CLR 632 per Dixon J at 642.  In Chopra v Minister for Immigration & Multicultural Affairs [1999] FCA 480, Lee, Whitlam and Weinberg JJ at [69] referred to the less stringent test now generally adopted in criminal cases that fresh evidence may be received only if there is a “significant possibility” that the outcome of the proceedings would have been different if the evidence had been adduced before the trial court.  Their Honours did not consider either test was satisfied in that matter.  The applicant accepts that the appropriate test is that espounded in Orr v Holmes.  The applicant also accepts that it must be shown that reasonable diligence would not have procured the evidence so as to be available at the Tribunal hearing.  He seeks to establish that by evidence from the solicitor who acted for him in relation to the Tribunal hearing.  That solicitor deposes to the fact that she did not ask the applicant about the availability of any witnesses who might confirm his claims as to his origins because it did not occur to her.  The solicitor who has assisted the applicant on a pro bono publico basis in relation to the current application before the Court, and who elicited from the applicant on 28 October 2001 the possibility of the evidence confirmatory of his claims being available, was also proffered.

21                  The Court has admitted evidence on the hearing of an application to review a decision of the Tribunal to show that a particular fact upon which the decision was based did not exist:  Lay Kon Tji v Minister for Immigration & Ethnic Affairs (1998) 158 ALR 681; Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854; (1995) 55 ALD 600.  The Court (French, RD Nicholson and Finkelstein JJ) in Yilan at [57] quoted with approval what Finkelstein J had said in Lay Kon Tji at 698:

“… its reception into evidence is permitted by reason of the fact that s 476(1)(g) of the Migration Act requires an applicant who seeks to establish the ‘no evidence’ ground of review to lead evidence that the ‘fact’ in question does not exist.  In the ordinary case the non-existence of the asserted ‘fact’ will usually be proved by the tender of evidence at the hearing of the application for review …”

22                  It is not clear that the stringent admissibility tests discussed in the preceding paragraph apply in those circumstances.  I do not need to explore that issue further in this application.  In my judgment, in this matter, there are obstacles to the reception of the proposed evidence.  They arise because, in my judgment, the proposed further evidence would not demonstrate in a way contemplated by subs 476(1)(g) and (4)(g) that the Tribunal based its decision on the existence of a particular fact which did not exist.  Rather, in my view, the proposed further evidence is directed to re-litigating the applicant’s claim for a protection visa on the merits by seeking to challenge the Tribunal’s lack of satisfaction about what was the penultimate step in its process of reasoning, rather than seeking to show that a particular fact upon which the Tribunal based its decision did not exist.  That position contrasts with the circumstances which obtained in Lay Kon Tji.  In Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181, the Court (Sundberg, Emmett and Conti JJ) said at [31-32]:

“Section 476(1)(g) requires that there be no evidence or other material to justify the decision.  That, however, does not involve a qualitative assessment, in an application to the Court for review, of the evidence and material before the Tribunal.  If it did justify such an approach, review by the Court would entail a reconsideration of the weight that should be given to the evidence and other material before the Tribunal.

It is not permissible, in order to establish the ground in s 476(1)(g) to adduce evidence to contradict evidence or other material that was before the Tribunal.  The weight to be attached to such evidence and material is a matter entirely for the Tribunal.  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.”

See also Ali v Minister for Immigration & Multicultural Affairs [2002] FCA 658.

23                  The “particular fact” which the applicant identified was the (asserted) finding of the Tribunal that the applicant was a Pakistani national and not an Afghani national.  But that is not what the Tribunal found.  The Tribunal said it “is not satisfied that the applicant is a citizen of Afghanistan”.  It made no positive finding that the applicant is a citizen of Pakistan.  It made no positive finding that the applicant is not a citizen of Afghanistan.  It was not required to do so.  The relevant criterion specified for the grant of a protection visa in s 36(2)(b) of the Act requires that the applicant is:

“a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

The significance of the element of the Minister’s (and on review, the Tribunal’s) satisfaction was discussed by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 263-264 and 274-275.

24                  The Tribunal concluded that the applicant did not meet the criterion in s 36(2) of the Act.  It was not satisfied that he fell within those persons to whom Australia has protection obligations under the Convention, because it was not satisfied that he is an Afghani national.  It lacked that satisfaction, as it explained, because it had grave doubts about the reliability of the applicant’s evidence and in the light of the language analysis.  The lack of satisfaction about the applicant’s claimed nationality, in the particular circumstances, was in effect its ultimate conclusion.  It flowed inevitably from such lack of satisfaction that the relevant criterion in s 36(2) was not met.  They are but different ways of expressing the same conclusion.

25                  The conclusion was reached in terms of s 36(2) of the Act by reason of specific, or particular, findings made by the Tribunal.  They include the findings about what the applicant told the Tribunal and what he told officers of the respondent, including the primary decision maker as set out and as described in [8] above.  They also include its findings about the content and meaning of the language analysis report, the qualifications of the language analyst, and in one respect the content of independent country information.  In addition to those particular matters, the Tribunal formed a judgment about whether it would accept the applicant’s explanations of certain matters put to him. 

26                  In my judgment, the conclusion of the Tribunal based upon its consideration of those particular findings is not itself a finding of a particular fact in the sense that term is used in s 476(4)(b) of the Act (and in its analogue in s 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1976 (Cth)).  In Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34, the Court (Moore, Mansfield and Emmett JJ) said at [34]:

“Thus, the appellant must show that the decision of the Tribunal was based upon the existence of a particular fact, and that that particular fact did not exist if he is to invoke successfully ss 476(1)(g) and (4)(b).  The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b):  Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193;  Re Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1; Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27; Adams v Minister for Immigration and Multicultural Affairs (1998) 70 FCR 591”.

That passage was cited with approval in Guden v Minister for Immigration and Multicultural Affairs [2002] FCA 236, and in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023.  In Rajamanikkam, the Court added at [23]:

“It should also be noted that the conclusion of the Tribunal that a visa applicant is not a credible witness may be based upon the impression of the Tribunal having had the benefit of seeing and hearing the evidence of the visa applicant.  In such a case, it is difficult to conceive of circumstances in which the ground of review in s 476(1)(g) could be made, simply because it would not be possible to prove (except in the more exceptional circumstances) that the Tribunal did not form the impressions which it asserted.”

27                  In my judgment, the same outcome is reached by a slightly different line of reasoning.  The “particular fact” identified by the applicant, if it be correctly expressed in terms of the Tribunal’s conclusion, is not that the applicant is a Pakistani national and not an Afghani national.  It is that the Tribunal is not satisfied that the applicant is an Afghani national.  It is the satisfaction of the Tribunal on that topic which must be shown not to exist, rather than the objective fact as to his nationality.  The proposed further evidence would not prove that the Tribunal did not have the satisfaction which it expressed.  It might suggest that, had the proposed further evidence been adduced before the Tribunal, the Tribunal might have been satisfied that the applicant is a national of Afghanistan.  But that is not sufficient to bring the case within s 476(4)(b), so that the pathway to s 476(1)(g) is successfully traversed:  see the reasons of Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223 – 224.  In my view, the proposed fresh evidence in reality is sought to be used as a means to re-open the Tribunal’s conclusion on its merits.  As the passage referred to in [     ] above from Indatissa shows, that is not a permissible course and it is not one which enlivens the ground of review available under s 476(1)(g) and s 476(4)(b).

28                  The proposed further evidence, in addition, would not demonstrate in any event that there was no evidence upon which the Tribunal could have reached the conclusion which it did.  If accepted as reliable evidence, it would clearly bear directly and heavily upon the conclusion as to the applicant’s nationality.  The Tribunal may have wished to have the two witnesses available for questioning, to assess the reliability of their affidavits.  It may have formed an adverse view as to the reliability of what each of them said.  Neither professed to have had long exposure to the applicant.  One said he had seen the applicant only once, some years before when he was only about 15 years of age.  The other had never had contact with the applicant, but said he had seen him from time to time in the local bazaar.  But, more importantly, the other evidence upon which the Tribunal did reach its conclusion (subject to considering the further grounds of review) remains unimpeached.  The linguistic analysis report provides some evidence upon which the conclusion of the Tribunal about the applicant’s nationality could have been reached.  The proposed further evidence therefore would not establish that there was no evidence upon which it could have reached that conclusion.  The Tribunal’s observations about why it regarded the applicant as an unreliable witness also are capable of leading it to the conclusion it reached, and would retain that character notwithstanding the proposed further evidence.  There was thus material upon which the conclusion of the Tribunal might have been based, notwithstanding the proposed new evidence;  see e.g. the observation of the Court (Hill, Matthews and  Lindgren JJ) in Minister for Immigration & Multicultural Affairs v Li (2000) 176 ALR 66 at 77 [54];  Mehrabani v Minister for Immigration & Multicultural Affairs [2001] FCA 1693 at [16] per Allsop J with whom North and Gyles JJ agreed.

29                  In my judgment, the proposed further evidence does not make out the ground of review sought to be established.  I indicate that, in my discretion, I would admit that evidence having regard to the applicant’s circumstances and the explanations proffered by his representatives as to why that evidence was not earlier procured, but for the lack of ability in doing so. 

30                  The complaint about the Tribunal’s use of the language analysis report is, in my judgment, an attempt to revisit the merits of the Tribunal’s decision.  The Tribunal is not bound by the rules of evidence:  s 420.  The High Court in Minister for Immigration & Multicultural Affairs v Eshetu  (1999) 197 CLR 611 pointed out that s 420 is facultative in its intent.  It is a matter for the Tribunal as to whether information such as the language analysis report should be given weight in the particular circumstances of a claim.  In this matter, the Tribunal referred the language analysis report to the applicant for his comments.  His migration agent made a detailed submission as to the weight which should be attributed to that report on 5 April 2001, and a further submission on that topic on 23 May 2001.  The Tribunal referred to those submissions in its decision, before deciding whether to accept the report of the analyst as carrying significant weight in this matter.  It did so having regard to those submissions, and as noted earlier, having regard to independent country information indicating that the Pakistani accent of Hazaragi is greatly influenced by Urdu and English whereas that of Hazaras from the Hazarajat in Afghanistan is very different.  The Tribunal also inquired of the supplier of the language analysis report, Skandinavisk Sprakanalys AB, as to the particular analyst’s qualifications.  It was informed that the analyst was:

“born (and) grown up in the northern part of the Kabul region, has Dari as a mother tongue, knows Pashto and recognises Baluchi.  The expert has lived for several years in Pakistan too.  EXP 312 is a higher linguistic academic degree from Kabul.”

31                  It is of course impossible for a person in the applicant’s position to contradict or test such assertions, as the identity of the analyst is provided only by a coded number.  The analyst’s name remains undisclosed.  The analyst cannot be cross-examined.  There are sometimes observations in an analyst’s report provided by that entity which, as the Tribunal as differently constituted from time to time has remarked, indicate the analyst has in some measure gone beyond that which qualifications as a linguist might entitle that analyst to observe.  There are occasions where other information has led to the Tribunal attributing no weight to the particular language analysis.  In some instances, as the applicant’s migration agent has submitted, those occasions have included circumstances where there is proximity between the province in Afghanistan in which an applicant for a protection visa lives and the Pakistan border, particularly where there has been evidence of movement across that border and exposure to persons from Pakistan in the particular applicant’s region.  The Tribunal has apparently had regard to all those considerations so far as they are applicable in the present matter in deciding to attribute significant weight to the language analysis report in this instance.  In my judgment, it is not shown to have erred in so doing in a way which affects the exercise of its jurisdiction.  It did not amount to an improper exercise of its power in the circumstances to give weight to the language analysis report.  It has not been shown that the analyst drew from the recording upon which the report was based matters which the analyst was not entitled to draw or which could not rationally have drawn from listening to that recording.

32                  Finally, the applicant has challenged the process by which the Tribunal came to take an adverse view of the reliability of his evidence.  It is contended that, by concentrating so much on minor inconsistencies in his evidence, the Tribunal identified the wrong issue.  The issue to be determined is whether the applicant has a well-founded fear of persecution (relevantly) by reason of a political opinion imputed to him.  However, in forming a view as to whether such a well-founded fear exists, it is appropriate for the Tribunal to make findings about the reliability of claims as to what happened to a particular visa applicant in the past:  see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574 – 575.  As their Honours said at 575:

“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.”

33                  In this matter, the Tribunal was entitled in my view to form a view as to whether the applicant’s claimed past history was reliable as part of its process in determining whether he has a well-founded fear of persecution by reason of his ethnicity or his religion should he return to Afghanistan.

34                  In Abebe v Minister for Immigration & Multicultural Affairs (1999) 197 CLR 510, Gummow and Hayne JJ at 577 said:

“ … 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 the fence, engaged in an often desperate battle for freedom, if not for life itself.”

The need for the Tribunal to be sensitive to the fact that many refugees have good reason to be cautious in their dealings with immigration and other officials, and to not impugn credibility simply because of vagueness or inconsistencies in recounting peripheral details has been emphasised, for instance, by Hathaway, The Law of Refugee Status, Butterworths, 1991, pp 84-87.

35                  In this matter, I am not persuaded that the Tribunal failed ultimately to address the question which s 36(2) of the Act directed it to address.  It was appropriate for it to consider the reliability of the applicant’s claims as to what had occurred to him in the past as part of the process in addressing that ultimate question.  It is apparent that the Tribunal was concerned about the reliability of the applicant’s claims as to what had occurred to him in the past.  The record of hearing before the Tribunal, as noted by it in its reasons for decision, reveals that the Tribunal raised with the applicant a series of apparently minor discrepancies in what he had said from time to time for his comment and explanation.  Its reasons also indicate that it was concerned to a degree, about the manner of his presentation before the Tribunal at the hearing.  The Tribunal recognised that the particular inconsistencies were minor.  It took an adverse view of the applicant’s reliability, with the awareness that the inconsistencies were on one view apparently minor.  However, it is sometimes only by reference to inconsistencies on minor detail, particularly detail that a reliable reporter of historical events would be able to present consistently, that there is exposed the difference between a reliable record of past events and a record of claimed past events which has in part been fabricated or exaggerated.  In addition, I do not consider that the Tribunal unfairly identified the inconsistencies which it put to the applicant and to which, ultimately, it had regard in forming a view that his claimed past history was not reliably reported.  It was upon the basis of that uncertainty or dissatisfaction that the Tribunal found that the criterion specified in s 36(2) of the Act had not been met.  The inconsistency about the length of work the applicant had spent in the mechanics workshop of his father’s business was put to him in the course of the hearing.  It was a significant discrepancy ranging from an estimate of about 10 years to an estimate of between two and three years.  The Tribunal has accurately recorded that the applicant, in his statement seeking a protection visa, claimed that the second search of his village was specifically aimed at the applicant or his family, whereas his evidence at the Tribunal was to the contrary.  It has accurately recorded that in his application for a protection visa he claimed to have been injured on the occasion of the second search, whereas at the Tribunal hearing he said that he had not made such a claim.  It accurately recorded that in his application for a protection visa he referred to the Taliban having taken “one of my brothers” but at the Tribunal referred to having only one brother.  It accurately recorded what the applicant had said as to the location of the workshop in his initial interview on 11 January 2001 and at later stages, although in that regard (as the Tribunal itself recognised), the discrepancy was inferred rather than explicit and was of minor significance.  It also accurately recorded the applicant’s descriptions of the course of his travel to Australia, including discrepancies in timing of some months.  I do not think that in any respect the Tribunal is shown to have been unfair in understanding what the applicant said from time to time, or in seeking his comments upon discrepancies in what he had said from time to time.  In addition, in the light of the observations above, I am not persuaded that the Tribunal fell into reviewable error by having used those discrepancies to form a view about the reliability of the applicant’s claims as to his background, and in conjunction with the language analysis report, not to have been satisfied that the applicant is as he claimed from Afghanistan.

36                  For those reasons, in my judgment, the applicant has not made out any grounds for review of the Tribunal’s decision available under s 476(1) of the Act.  I consider that the application should be dismissed.  I so order.

Associate:

Dated:              3 July 2002