FEDERAL COURT OF AUSTRALIA

Kamal v Minister for Immigration & Multicultural Affairs

[2002] FCA 818

MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether Tribunal based its decision upon a fact that did not exist – whether Tribunal identified a wrong issue when it made an error of fact leading it to form a wrong conclusion about the applicant’s credibility - whether Tribunal had regard to irrelevant considerations in respect of a linguist report contrary to the applicant’s claim to be a national of Afghanistan.

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

Migration Act 1958 (Cth), ss 36(2), 476(1)(b), (1)(c), (1)(e), (1)(g), (4)(b), 420(2)(a)

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(h), 5(3)(b)

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 – applied

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 – discussed

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

Craig v South Australia (1995) 184 CLR 163 - cited

Ullah v Minister for Immigration & Multicultural Affairs [2002] FCA 60  - discussed

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

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

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

Naz v Minister for Immigration & Multicultural Affairs [2001] FCA 1591 – discussed

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 – referred to

Clark v Ryan (1960) 103 CLR 486 – referred to

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

Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555 – discussed

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

Minister for Immigration & Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495 - followed

SAYED KAMAL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 132 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

introduction

1                     The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) given on 27 July 2001.  As the application for review was instituted prior to 2 October 2001, the Act as it stood prior to the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) applies.

2                     The Tribunal affirmed a decision of a delegate of the respondent of 16 May 2001 refusing to grant to the applicant a protection visa (the visa) under the Migration Act 1958 (Cth) (the Act).  The essence of the decision of the Tribunal was that it was not satisfied that the applicant 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), so that the criterion for the grant of the visa specified by s 36(2) of the Act was not met.  In the applicant’s case, that was because the Tribunal was not satisfied that he is a refugee as defined in the Article 1A(2) of the Convention, because it was not satisfied that he has a well-founded fear of persecution for a Convention reason.

3                     The applicant is a young man who claims to be from Afghanistan, of Hazara ethnicity and of the Shi’a Muslim religion.  He claims that he fears persecution in Afghanistan at the hands of the Taliban because of both his ethnicity and his religion.  He said that young Hazara men from his village had been abducted by the Taliban, and that he believes his elder brother was also taken by the Taliban as he had gone missing.  The applicant told the Tribunal that the same fate would befall himself.

The tribunal’s reasons

4                     The applicant failed in his application because the Tribunal was not satisfied that the applicant is a citizen of Afghanistan.  The Tribunal took an adverse view of his credibility.  One of the reasons for that view was that the applicant, who did not have the typical features of an Hazara, had only raised in a submission to the Tribunal on 6 June 2001 that he was of Syed Hazara ethnicity as the explanation for not meeting the typical features of an Hazara.  His explanation to the Tribunal for belatedly referring to that particular ethnicity, given at the Tribunal’s hearing on 20 July 2001, was that he had not previously been asked about his ethnicity.  That was not correct.  He had been asked about his ethnicity on 13 January 2001 by officers of the respondent and had described himself simply as Hazara.  The Tribunal also had regard to perceived inconsistencies in the applicant’s evidence relating to his place of residence, about whether his place of residence called “Baba” was a village or a series of sub-villages, to the fact that although he had mentioned earlier that his family had about 20 sheep he had not mentioned until the Tribunal’s hearing that the family also had a donkey and a cow, about whether he had ever been to Ghazni, about how close he had been to the Taliban, and about whether he had seen the Taliban taking people away.  On that latter point, the applicant told the Tribunal he had been scared to express too much detail at his early interview because of the presence of policemen, and then that he had not said at an earlier interview that he had never personally seen the Taliban taking people away and that there may have been an error of interpretation in the recording of that interview.  The Tribunal observed that it had listened again to the recording of that interview and that there was no error of interpretation, having regard to the context of the question and answer.

5                     The Tribunal was also influenced by the applicant’s lack of knowledge of the units by which the size of landholdings in Afghanistan is measured, despite coming from a farming family, nor did he know the size or shape of the family landholding.

6                     The Tribunal also had regard to an expert linguistic report that indicated “with considerable certainty” that the applicant’s speech patterns originated from Baluchistan in Pakistan.  It did not think the applicant’s explanation that his speech patterns were the result of influence of people from elsewhere moving through his area in recent years lay well with his claims to have lived a very isolated life in a remote village.

7                     The Tribunal concluded:

“Given the Tribunal’s doubts about the applicant’s credibility, the contradictions in the evidence he gave, and the analyst’s strong conclusions 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.”

It was therefore not satisfied that the applicant satisfied the criterion specified in s 36(2) of the Act.

The grounds of review

8                     The grounds of review argued on behalf of the applicant were extensive, invoking the grounds available under s 476(1)(b), (c), (e) and (g) of the Act.  In his helpful submissions, counsel for the applicant described the grounds of the application as involving in essence three criticisms of the Tribunal’s decision.  They were expressed as being that it:

“20.1   Found a particular fact of importance which fact did not exist.  This erroneous finding of fact appears to be critical to the Tribunal member’s path in the process of reasoning which resulted in the applicant being disbelieved on his assertion that he came from Afghanistan (Ground 1 contrary to Sections 476(1)(g) and 476(4)(b) Migration Act 1958 (Cth)).

20.2          Identified the wrong issues, asked the wrong questions, ignored relevant material and relied on irrelevant material and thereby not having the authority to make the decision that the applicant did not come from Afghanistan and therefore the Tribunal member did not have the jurisdiction to make that decision (Grounds 2, 3, 4, 5, 6 and 7 contrary to Sections 476(1)(b) and 476(1)(c) Migration Act 1958 (Cth)).

20.3          Ignored relevant material in that generally speaking the applicant’s evidence was consistent with his claim as set out in the application and the accompanying statement and then incorrectly applied the law to the facts by placing undue emphasise [sic] on a number of issues and inconsistencies that were of peripheral importance.  It resulted in the Tribunal identifying the wrong issues, asking the wrong questions and relying on irrelevant material in such a way as to effect the exercise of the Tribunal’s power to the extent of failing to apply the law correctly to the facts and failed to properly apply the burden of proof (Ground 8 contrary to Section 476(1)(e) Migration Act 1958 (Cth)).”

In addition, at the hearing, counsel sought to extend the matters which were submitted to fall under s 476(1) as discussed below.

the first ground OF REVIEW

9                     The first ground seeks to enliven s 476(1)(g), as explained and limited by s 476(4)(b) of the Act.  It is contended that there was no evidence or other material upon which the decision could have been made because the Tribunal based its decision upon the existence of a particular fact which did not exist.  The particular fact identified was that the applicant had said at interview on 31 January 2001 that he had not personally seen the Taliban taking away people from his village. 

10                  I observe that the Tribunal did not treat the need for the applicant to have seen the Taliban taking away young Hazara men from his village in Afghanistan as critical to the applicant’s claim, because it did not regard it as necessary for him to have had that personal experience to have a well-founded fear of persecution by reason of his ethnicity.  The Tribunal did not get to the point of having to decide if his fear of persecution by the Taliban was well-founded in Afghanistan because it did not accept the applicant’s claim that he was from Afghanistan at all.  The independent country information about Afghanistan made it pretty clear that the Taliban targeted persons of Hazara ethnicity for persecutory conduct.  The significance of the particular fact, in the Tribunal’s reasoning, was in determining whether to accept that the applicant was from the village of Baba in Afghanistan as he claimed, that is as going to its assessment of the credibility of the applicant’s claim.

11                  Decisions concerning s 5(1)(h) and s 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) are treated as applying to s 476(1)(g) and (4)(b) of the Act because those provisions are replications of the corresponding provisions in the ADJR Act.  In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, Black CJ (with whom Spender and Gummow JJ agreed) (Curragh), after referring to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) per Mason CJ at 357-358, said at 220-221:

“If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact.  In Bond’s case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to “proof of the non-existence of a fact critical to the making of the decision” [my emphasis].  See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word “critical” to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.”

Black CJ at 223 then pointed out that the concluding words of s 5(3)(b) of the ADJR Act (and of s 476(4)(b) of the Act) that the “fact did not exist” required more than it be shown simply that there was no evidence before the decision maker of the fact found or assumed as the basis of the decision.  It is necessary to establish the negative of the fact, if necessary by other evidence.

12                  The applicant contends that the particular fact, namely that he had said at an interview on 31 January 2001 that he had never personally seen the Taliban taking people away, did not exist.  It was the perceived change in his story which was of concern to the Tribunal as the applicant at the hearing before the Tribunal said that he had personally seen the Taliban abducting people.  The applicant referred to two parts of the transcript of the recording of the applicant’s interview of 31 January 2001 to demonstrate that the particular fact did not exist:

“Q       When you first saw the Taliban were they in your village?

A         Yes.

Q         What were they doing?

A         They were moving around when they saw young people near the mountains they take them away.”

and later:

“Q       You were saying before when you first saw the Taliban in your village, they were moving around and when they saw young people in the mountains they would take them?

A         Yes.

Q.        How far away were you?

A         I was far away but I was in hiding.

Q         Hiding where?

A         In my house I was in my house.

Q         Did the Taliban come to people’s houses?

A         No.

Q         Have the Taliban ever been to your house?

A         No.”

The respondent referred to a further section of that transcript.  The Tribunal had been asking the applicant whether he saw his brother taken away.  At least one answer from the applicant related not just to his brother but more generally.  The transcript records:

“Q       Ok I will break this question up – I am now talking in general when young men were taken.

A         Two years ago whilst I was there Taliban take people, they return from military either their hand was amputated or their leg was amputated, some of them disappeared.

Q         What I am talking about is I asked you is if other villagers had ever witnessed young men from your village being taken and what you are saying is they have witnessed this but they have witnessed it outside your village.

A         Not outside our village, some people witness some people haven’t witnessed in our village.

Interpreter – I’m sorry I have to interpret word by word everything he says.

Q         That’s fine that fine that is what we expect.

Q         So did you yourself ever see this happening?

A         No myself I never witnessed, my father maybe saw.”

Counsel for the applicant submitted that the applicant’s apparently clear answer in that section of the interview of 31 January 2001 is equivocal, and so of no evidentiary significance, when seen in the context of the preceding questions which I have set out.  I do not accept that submission. 

13                  In my view, the context shows that the Tribunal made it clear that it was directing the applicant’s attention away from his knowledge of his brother’s removal to that of young men generally.  The applicant responded appropriately, in the sense that he apparently understood the topic.  The answer that he himself had never seen young men being taken by the Taliban from, or from outside, his village is not one which in the circumstances is equivocal or so lacking in cogency as to have no weight.

14                  The answer that the applicant himself never witnessed the Taliban taking young men away, in my judgment, means that it has not been shown that the particular fact identified by the applicant, namely that he did not say at interview on 31 January 2001 that he had not seen the Taliban taking young people from his local area, did not exist. 

15                  It is not necessary, in that circumstance, to determine whether the particular fact was one which was critical to the making of the decision in the sense explained by Black CJ in Curragh.  I must therefore reject the first ground of review.  In doing so, I do not wish to be taken necessarily as endorsing the Tribunal’s use of the particular answer of the applicant at the interview on 31 January 2001 adversely to the assessment of his credit, particularly having regard to the apparently inconsistent answers on that topic given earlier in that interview.  It is not apparent to me why the applicant might perceive a benefit in giving the apparently inconsistent answers which he gave, as the independent country information to which the Tribunal referred would indicate that actually seeing the Taliban take away other young men would not be a necessary element of having the well-founded fear of persecution which the applicant claimed.  That, however, was a matter for the Tribunal.  There were, of course, as the reference to the Tribunal’s reasons above illustrates, other matters to which the Tribunal had regard in forming its view about the applicant’s credibility.

the second ground of review

16                  The foundation for this ground of review is the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 (Yusuf).  In the joint judgment of McHugh, Gummow and Hayne JJ, after referring to Craig v South Australia (1995) 184 CLR 163 at 179 (Craig), their Honours said at [82]:

“‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  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.”

In Ullah v Minister for Immigration & Multicultural Affairs [2002] FCA 60 at [19] - [20] I followed the decisions of Weinberg J in Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036, of Hely J in Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898 at [30], and of Gyles J in Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 at [15] explaining that the nature of “jurisdictional error” which will give rise to the grant of review available under s 476(1)(b) of the Act has not been greatly opened by Yusuf.  It is only if the Tribunal’s ignoring relevant material or its reliance on irrelevant material is “in a way that affects the exercise of power” that an error of law or jurisdictional error will be made out, or of course if the Tribunal identifies a wrong issue or asks a wrong question:  Yusuf at [82].  The authority of the Tribunal to make its adjudication depends upon it properly identifying the applicable law and properly applying the law in the process of making its decision.

17                  This general ground of review concerned several particular complaints of the applicant.  Although it is necessary to refer to each of those matters separately, the substance of the contention is that the Tribunal’s consideration of the applicant’s claim, as illustrated by those particular matters, demonstrates that it misconceived its role and acted in effect as a prosecutor seeking to find reasons to disprove or reject the applicant’s claim.  It was not contended that the Tribunal was actually biased against the applicant, so as to enliven s 476(1)(f) of the Act, but that it had a mindset aimed at concluding that the applicant’s claims were not credible.  The respondent contends that the Tribunal did not in fact misconceive the law, or misapply it, in addressing the criterion for the grant of a protection visa in s 36(2) of the Act.  It was submitted on his behalf that the applicant was really seeking to review the Tribunal’s decision on the merits, a function not vested in the Court.

18                  The real dispute therefore is whether the Tribunal’s approach to the applicant’s claims should be categorised in the way described by the applicant.  It is necessary to look at each of the several matters referred to by counsel for the applicant to form that judgment.

19                  It was contended that the Tribunal, in having regard to the applicant’s inability to describe the size of the family farms as other than “big” and his lack of knowledge of any units of land measurement, took into account an irrelevant consideration.  It is irrelevant, so the contention ran, because that sort of knowledge could not be expected from a young illiterate peasant farmer.  It is alternatively contended that those matters were of “peripheral importance only” in addressing the applicant’s claims.  Similar submissions were made about the Tribunal’s use of inconsistencies in the applicant’s evidence as to his ethnicity, again having regard to his age and illiteracy and his peasant background and also to the fact that the occasions when he simply described himself as an Hazara were at early interviews when he was describing his circumstances through an interpreter and when he might not have appreciated the need to be as fulsome as he was to the Tribunal.  The same submissions are made about the inconsistencies or omissions at certain times in the applicant’s evidence about living in a subvillage Walikhu of the village of Baba, about his family owning a cow and a donkey, and about whether he had been to Ghazni.  The Tribunal, it was submitted, should also have had regard to the applicant’s ability to give a detailed and consistent description of the villages near his village, and of the general geography and the mountains near his village, as well as his “esoteric knowledge” of his escape route from Afghanistan and the general geography of those areas.  Counsel for the applicant illustrated that knowledge by reference to the transcript of the hearing before the Tribunal on 20 July 2001.

20                  It is convenient at this point to dispose of one contention put on behalf of the applicant.  It is that certain expressions used by the Tribunal in the course of its hearing demonstrate, or assist in demonstrating, that it erred in adopting the role of a prosecutor adverse to the applicant’s claim and that it imposed upon him an onus of proof which was inconsistent with the inquiry which s 36(2) and Article 1A(2) of the Convention directed. 

21                  In the course of the hearing, the Tribunal said to the applicant that there were some things which were not accepted “immediately, I’m not absolutely convinced and I have to think more about it”.  In its reasons, it referred to raising with the applicant the sorts of issues “about which it was not yet convinced”.  I do not consider those references go any way towards demonstrating error in the way suggested.  The decision as to whether the Tribunal has misdirected itself as a matter of law, or has misapplied the law, will almost invariably appear from its reasons for decision.  It will be a rare case that the form of expression used in the course of a hearing could contribute in a meaningful way to consideration of such a claim.  The role of the Tribunal is a difficult one.  It very often conducts its hearings through the medium of an interpreter.  Often, as here, the material presented for its consideration will have altered in detail and sometimes in substance over time.  Often, the visa applicant will be anxious, sometimes loquacious, sometimes aggressive, and sometimes reticent.  It has to address claims against the background of its acquired knowledge of the circumstances of the country concerned, and the relevant independent country information of course is periodically updated.  That information is also sometimes inconsistent.  It must take all those things into account in forming its views about the claim.  It will generally form views about whether past events have occurred as claimed, to provide a basis for determining whether a visa applicant has a well-founded fear of persecution in the reasonably foreseeable future.  The proper fulfilment of its inquisitional function does require it, from time to time, to express to visa applicants doubts it holds about the accuracy of particular claims or indeed about the claim as a whole.  It may do so to ensure that the visa applicant is given the opportunity to address its concerns.  It may do so as part of the process of arriving at its findings of fact.  Those matters are not unrelated.  But it would be wrong to ascribe to the precise words used in the course of such questioning or commentary the weight of concluded views of the Tribunal.  Its concluded views are those expressed in its reasons for decision, provided pursuant to s 430 of the Act.

22                  I return to the question whether the Tribunal’s reasoning discloses an error of law or jurisdictional error in the sense that term is explained in Yusuf.  In Naz v Minister for Immigration & Multicultural Affairs [2001] FCA 1591 O’Loughlin J concluded that the Tribunal concentrated too much on inconsistencies in peripheral matters and so identified wrong issues.  I am not persuaded that the Tribunal has made a similar error in this case.  It was central to the applicant’s claims that he was from a remote rural village in Afghanistan.  The Tribunal addressed that claim.  It was because it was not satisfied that the applicant is from Afghanistan as he claimed that the decision of the delegate of the respondent was affirmed.  Satisfaction or lack of satisfaction about that matter necessarily turned upon whether the Tribunal accepted the applicant as a reliable reporter of facts.  Each of the matters to which it had regard are capable of being regarded as relevant to that issue.  It is often only by reference to apparently peripheral matters, or matters of detail, that the reliability or unreliability of particular claims may be discerned.  The Tribunal tested the applicant’s claim about his nationality by reference to his knowledge of what he might reasonably be expected to know.  It is correct that, in making such an assessment, it would be appropriate for the Tribunal to have regard to the extent of the applicant’s local knowledge, or as his counsel put it of esoteric local geography.  The Tribunal certainly explored that topic at some length with the applicant, and (so far as my reading of the transcript of the Tribunal’s hearing shows) received a significant amount of such detail.  It noted his responses in its recital of his evidence.  It does not appear, therefore, that the Tribunal simply overlooked that evidence.  It has not commented adversely upon that material in its reasons for decision.  It does not follow that the Tribunal has not had regard to that material:  see e.g. Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407, McHugh J at [39] and [41].

23                  The question which the Tribunal was required to address was whether it was satisfied that the applicant has a well-founded fear of persecution for a Convention reason.  In this matter, that question was resolved against the applicant because the Tribunal was not satisfied that he was, as he claimed, from Afghanistan.  The Tribunal referred to the applicant’s evidence on that issue, and then gave its reasons partly by reference to parts of his evidence for not being satisfied that he was from Afghanistan.  It is not obliged to refer to each other piece of evidence which tends to support the applicant’s claims at the point in its reasons for decision where it is explaining why it has reached a particular decision.  The fact that it has not done so, where it has referred to that evidence in its recital of the material before it, does not mean that it has not considered that evidence.  The applicant tendered in support of his contention certain maps of the Ghazni Province, and of towns in that province including Baba.  It was contended that those maps demonstrate that the applicant had a detailed local knowledge of the Baba area.  The Tribunal did not say that he had no knowledge of that area.  Where the applicant gave apparently (or presumably) accurate answers about the area, it has made no comment.  It has referred to those answers which, in its view, demonstrated a lack of knowledge of matters of which it expected the applicant to be aware.  I will formally receive those maps in evidence, but for the reasons given I do not consider that they make out or add to the contention that the Tribunal committed jurisdictional error.

24                  In addition, as I have said in [15] above, it does not amount to jurisdictional error to fail to take into account each particular fact which a visa applicant contends to be relevant.  Unless the legislation prescribes a fact or facts which must be taken into account, I do not consider that the failure to take into account other facts which are argued to be relevant but which are not so prescribed will necessarily involve jurisdictional error.  The real issue, in my judgment, in such circumstances is whether the Tribunal’s consideration of the claims involves it having misunderstood the law or having misapplied the law to the facts so as not to have addressed the question which it was required to address.  There will be circumstances where the Tribunal’s reasons, including its failure to consider relevant material significantly in favour of a visa applicant, may lead the Court to conclude that it has committed such jurisdictional error.  The decision of O’Loughlin J in Naz provides an example.  In this matter, for the reasons I have given, I am not persuaded that the Tribunal fell into that error.

25                  The applicant further contends that the Tribunal erred in taking into account the linguist’s report.  In this matter, the linguist’s report was clearly given significant weight by the Tribunal.  One error was said to be that the Tribunal had no evidence to determine how much of the applicant’s speech was affected by Urdu and English and therefore the independent evidence to which the Tribunal referred was irrelevant.  The second error alleged was that the Tribunal had failed to take into account the dangers of accepting such linguistic evidence.  Those dangers were identified as arising from the absence of evidence to rebut the applicant’s claim that his speech may have been influenced by people elsewhere, or to show by what criteria a speech pattern is identified as originating from a particular location “with considerable certainty”, and from the proximity of Ghazni province (in which the applicant’s claimed village of Baba was situated) to Pakistan, and from the poor quality of the tape recording provided to the linguist.

26                  The Tribunal is not bound by the rules of evidence or by technicalities:  s 420(2)(a).  It is directed by s 420 to provide a mechanism of review that is fair, just, economical, informal and quick.  It must act according to substantial justice and the merits of the case.  There have been a number of decisions of the Tribunal where, in the particular circumstances, the Tribunal member has decided to give little or no weight to an apparently expert linguist’s report.  I do not accept that, as a general rule, the Tribunal is not entitled to give weight to a report provided by a linguist through Eqvator, Stockholm (the entity which supplied the linguist’s report).  Such a report is a piece of evidence available to the Tribunal to which it may have regard, as with any other piece of evidence available to it.  The weight it attaches to such a piece of evidence will be a matter for the Tribunal as then constituted.  As noted, sometimes such a report is given no or little weight.  In this instance, the Tribunal gave the report considerable weight.  It was, however, but one of the various matters to which the Tribunal had regard in rejecting the applicant’s claim as to his origin.

27                  It is apparent that the Tribunal did not know the identity of the particular linguist.  In that circumstance, it would be entirely understandable if the Tribunal was cautious about attributing much weight to the report.  It did however have the “Service Provider Profile” of Eqvator, indicating its experience and its structure and its selection criteria for the engagement of linguists.  It also had Eqvator’s description of the linguist’s qualifications:  he or she is said to be a university graduate (the discipline is not disclosed) whose mother tongue is Dari, and who is also a “master of Pashtu”, with very good linguistic skills and knowledge of Afghan culture and society, who has done more than 1000 analyses, and “is regarded as one of the two best analysts in this area of Europe”.  This hubristic claim could not be tested, nor are its foundations exposed.  It is an assertive set of claims, rather than a background basis for confidence in the report, at least in terms of material conventionally used to accept that a particular person has the training, experience and skills in a particular discipline to give expert evidence:  see e.g. Clark v Ryan (1960) 103 CLR 486.  There are, therefore, good reasons why such evidence should be approached with some caution.  Nevertheless, there are many instances where the Tribunal’s use of a linguistic report in the nature of an expert report has been accepted by the Court:  see e.g. per Carr J in Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523.

28                  In my judgment, in this matter the Tribunal’s use of the linguist’s report does not demonstrate jurisdictional error as claimed by the applicant.  There is no legal obligation on its part simply to discount or ignore such a report.  The applicant was on notice that the Tribunal might rely on that report.  It was the subject of a detailed submission by the solicitors of the applicant to the delegate of the respondent dated 9 May 2001, to some degree by the applicant in his lengthy submission to the Tribunal dated 20 May 2001 and by the applicant in a separate four page submission to the Tribunal dated 4 May 2001 (a transcribed and typed version was sent to the Tribunal on 13 June 2001).  It was also the subject of a detailed submission by the applicant’s lawyers sent on 18 July 2001.  That submission, amongst other matters, referred to other Tribunal decisions where an applicant for a protection visa had been accepted as having Afghani origins notwithstanding a linguist’s report indicating to the contrary.  The Tribunal’s reasons deal briefly with the matters raised by those submissions, including discounting the possibility that the applicant’s speech patterns may have been influenced by external influences.  It noted the information provided by Eqvator.  It noted, and accepted, independent evidence that Pakistani Hazaras speak with an accent very different from those Hazaras from the applicant’s claimed area in Afghanistan.  Its use of the linguist’s report, in the circumstances, does not indicate in my view that the Tribunal took into account any irrelevant considerations or failed to take into account any relevant consideration in a way which affected the exercise of its power.

29                  The applicant further contended that the Tribunal identified a wrong issue when it found that the applicant first claimed to be a Syed Hazara by letter dated 9 May 2001 “to counter comments regarding his atypical appearance” made by the delegate of the respondent.  As the delegate’s decision was made on 16 May 2001, the Tribunal erred in that finding.  The Tribunal said that the applicant’s responses about his ethnicity caused the Tribunal to have doubts about the applicant’s credibility, and that its doubts were increased because of the inconsistencies in his evidence.  It is therefore a matter which played a part in the Tribunal’s lack of satisfaction about the applicant’s claimed Afghani nationality.

30                  At the hearing before the Tribunal, the Tribunal (unfairly, due to its mistake about when the claim of Syed Hazara ethnicity was first made) questioned the applicant on an erroneous basis and noted that the applicant “said that he had not been asked about his ethnicity previously, and he said he had told his agents of his true ethnicity”.  It then referred to his initial interview on 13 January 2001 and his statement made in his application for the protection visa, in which he described himself as “Hazara”.  Then it found that he had not referred to himself as Syed Hazara until after the decision of the delegate of the respondent.  It said:

“… the applicant’s responses about what had been asked of him, and what he had said, about his ethnicity have caused the Tribunal to have doubts about the applicant's credibility.”

31                  However, I do not consider that the Tribunal’s error is a jurisdictional one as explained in Yusuf, and in Craig.  The error it has made is not an error of law.  It has not identified a wrong issue, but has made an error of fact which may have led it to form a wrong conclusion about the applicant’s reliability.  The relevant issue has been correctly identified, namely whether it was satisfied that the applicant is an Afghani national.  It has made an erroneous finding, and as argued may therefore have reached a wrong conclusion.  But that erroneous finding was not one which affected the exercise of its power.  It was an erroneous finding made in the course of and within the exercise of its power.  The Tribunal had the power to make its decision, and that power is not lost because in the course of exercising it the Tribunal mistakenly makes an error of fact, even though that error might influence the result of the exercise of the power.

32                  I have also considered whether, taken collectively, the applicant’s various complaints indicate that the Tribunal somehow exceeded its jurisdiction or failed to act within jurisdiction.  The applicant’s contention that the Tribunal has not asked itself whether the applicant has a well-founded fear of persecution for a Convention reason, because it can be seen to have adopted a finicky approach to the applicant’s claims and to have ignored matters favourable to his claim, is not in my view made out.

the third ground of review

33                  The contention on behalf of the application was ultimately that the Tribunal had erred in law because it had not asked whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason, but had imposed on or required of the applicant a too strict standard of proof about his origins.  It was submitted that it imposed an evidentiary onus of proof upon the applicant, and “exacerbated” its alleged error by relying on peripheral issues and peripheral inconsistencies, and by ignoring relevant matters such as the general consistency of the applicant’s evidence.  That alleged error is said to have caused it to fail to take into account plausible explanations for perceived inconsistencies in the applicant’s evidence.

34                  I am not persuaded that the Tribunal erred in the way alleged.  It expressly recognised that an onus of proof is not appropriately applied to its decision making processes.  It is nevertheless the case that the matters which the Tribunal will be required to address will generally be identified by the applicant by specifying the claims upon which refugee status is said to exist, and such detail as is necessary to enable those claims to be addressed.  In evaluating the evidence of the applicant, the Tribunal remarked upon its general consistency.  Except in rare cases, such as in Naz, the weight which the Tribunal gives to such consistency and to perceived inconsistencies in a visa applicant’s evidence, and to other evidence which touches upon its assessment of the claims, is essentially a matter for the Tribunal.

35                  In Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555; 59 ALD 773, Lee J stressed the need for the Tribunal to exercise great caution before drawing inferences from perceived inconsistencies in the evidence of a visa applicant where those inferences are relied upon to discount the applicant’s credibility.  In that case, his Honour concluded that the Tribunal had over-reached its obligation to address the claim by treating its doubts or misgivings about aspects of the applicant’s evidence as grounds for finding that he had presented a fraudulent claim.  In that case, it was also found that the Tribunal had erroneously ascribed to the visa applicant statements which he had not made in forming its views, but his Honour did not need to address the ground of review raised under s 476(1)(g) of the Act.

36                  It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made.  Those evaluative processes are for the Tribunal.  I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant.  The matters to which it had regard were matters which, logically, it might have considered.  The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced.  The Court is not empowered to review the Tribunal’s decision on the merits.  It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act.  In my judgment, no error of the nature contended for has been demonstrated.

The added ground of review

37                  The respondent acknowledged that the Tribunal erred in finding that the applicant first raised his Syed Hazara ethnicity in a submission to the Tribunal on 6 June 2001, after the decision of the delegate of the respondent.  In fact, he first referred to his Syed Hazara ethnicity in a letter dated 9 May 2001.  The delegate’s decision was made on 16 May 2001. 

38                  The applicant, in the light of the respondent’s acknowledgment of factual error by the Tribunal, contends that error enlivens s 476(1)(g) and (4)(b) of the Act.  The particular fact which is said not to exist is that the applicant did not refer to himself as Syed Hazara until after the delegate’s decision of 16 May 2001. 

39                  The respondent contends that the decision of the Full Court (Sundberg, Emmett and Conti JJ) in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 precludes the Court from granting relief in this matter.  In Indatissa at [27-28] their Honours said:

“It is not sufficient to simply establish the two matters referred to in s 476(4)(b).   That paragraph qualifies s 476(1)(g).  It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision.  That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist.  If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact.  Such an approach is demonstrably unsound.  It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal.”

In an earlier decision of the Court in Minister for Immigration & Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495, Kiefel, North and Mansfield JJ at [19] - [24] discussed the operation of s 476(1)(g) and (4)(b).  Their Honours concluded that a decision rejecting a claim based upon a finding a visa applicant was not credible because of several specific facts should be set aside where certain of those specific facts did not exist.  That decision was not adverted to by the Court in Indatissa, nor were the decisions to which it referred.  The respondent obtained special leave to appeal from that decision to the High Court.  The appeal was heard by the High Court on 14 November 2001.  Judgment has been reserved.

40                  It is consistent with each of those decisions that a visa applicant should not be able to have a decision of the Tribunal set aside by adducing evidence on review which contradicts a finding of a particular fact made by the Tribunal, even if such evidence might persuasively lead to a different finding of fact.  As their Honours said in Indatissa, the ground of review under s 476(1)(g) is not meant to provide a vehicle for having a decision on a particular fact reviewed on the merits.  That is why, in Curragh, Black CJ at 223 emphasised that, on review, it must be shown that the particular fact did not exist.  To adduce evidence to show that probably, or even very probably, a particular fact has been wrongly decided does not demonstrate that it did not exist when the Tribunal had evidence from which it could find, either directly or by inference, that the fact did exist.

41                  However, if Indatissa also decides that the ground of review available under s 476(1)(g) will not be made out when either s 476(4)(a) or s 476(4)(b) is fulfilled, I think it is not consistent with the approach of the Court in Rajamanikkam.  In that event, I propose to follow the Full Court decision in Rajamanikkam.  In Bond Mason J at 357-358 said that s 5(3) of the ADJR Act severely limited the area of operation of the ground of review in s 5(1)(h) of the ADJR Act, but his Honour rejected the view that s 5(3) of the ADJR Act constitutes the “no evidence” ground of review.  His Honour said at 358:

“The better view, one which seeks to harmonise the two grounds of review, is to treat “error of law” in s 5(1)(f) as embracing the ‘no evidence’ ground as it was accepted and applied in Australia before the enactment of the A.D.(J.R..) Act and to treat the ‘no evidence’ ground in s 5(1)(h), as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision.”

The analogue of s 5(1)(f) of the ADJR in the Act is s 476(1)(e).  Although not part of the ratio decidendi of the case, I think that his Honour’s comments lend support to the view taken in Rajamanikkam that a case which falls within either of the two subclauses of s 476(4) will then fall within s 476(1)(g).  Mason J said at 358 that the interpretation of the two grounds of review:

“… enables one to say that s 5(1)(h) and (3)(a) have the effect of overcoming to a limited extent and in a limited area the restrictions on the traditional ‘no evidence’ ground …”

42                  In my view, the approach of the Full Court in Curragh is consistent with that approach.  There can be no real doubt that the intent of s 476(1)(g) and (4)(b), and the provisions in s 5(1)(h) and (3)(b) of the ADJR Act do not contemplate that that, if there is any material capable of supporting the particular fact the existence of which is said not to exist, the ground cannot be made out.  It is not intended that s 476(1)(g) would provide an avenue to attack findings of fact based upon evidence.  On the other hand, if for example the claimant’s evidence were not believed only because the claimant had said X at an earlier interview, and on the material before the Tribunal the claimant had not in fact said X at that time, then in my view s 476(4)(b) would be enlivened, provided the fact of having said X was a particular fact upon which the decision was based in the sense explained in Curragh.  In that event, I do not think it is necessary for the applicant for review also to demonstrate that there was no evidence or other material which could justify the decision.

43                  That is because s 476(4)(b) has as one of its requirements that the decision was “based” upon the existence of a particular fact which did not exist, i.e. it has the causative component built into its requirements.  It was the nature of that causative component which attracted consideration in Curragh.

44                  It is therefore necessary to decide whether, in the sense explained in Curragh, the decision of the Tribunal was based upon the existence of that particular fact.  The context in which that error on the part of the Tribunal appears will inform the answer to that question.  The Tribunal noted that it was required to address the applicant’s ethnicity, although ultimately nothing turned upon that issue, because the Tribunal was not satisfied that the applicant is from Afghanistan.

45                  The applicant’s responses about his ethnicity did however play a part in the Tribunal’s assessment of the applicant’s credibility.  They caused the Tribunal “to have doubts about” his credibility.  It said those doubts were increased by the other inconsistencies to which it referred.  It was the doubts about his credibility, the contradictions in his evidence, and the linguistic analysis which together led the Tribunal not to be satisfied about the applicant’s claimed nationality.

46                  However, in my view, it is also necessary to consider the responses of the applicant about his ethnicity which led it to have those doubts.  It said:

“This question of ‘Syed Hazara’ is an issue first raised by the applicant in a submission to the Tribunal received on 6 June 2001.  Prior to that, the applicant simply referred to himself as ‘Hazara’.  When this point was made to him at the hearing on 20 July 2001, he said that he had not been asked about his ethnicity previously, and he said he had told his agents of his true ethnicity.

Contrary to his assertions at the hearing, he was asked about his ethnicity at interview on 13 January 2001.  He described himself simply as ‘Hazara’, without qualification.  He claims to have asserted that he had ‘Syed Hazara’ ethnicity when discussing his claims with his own agents.  However, in both his application form (Departmental file folio 37) and in his accompanying statement quoted above, he described himself, again without qualification, as ‘Hazara’.  The Tribunal notes that the applicant acknowledged that the written statement had been translated back to him before he signed it.  The application form bears an endorsement by an interpreter that the questions in the form had been translated for the applicant and that his responses have been faithfully translated into English.”

47                  It thus appears that the Tribunal was concerned that the applicant had been asked about his ethnicity at interview on 13 January 2001, and in his application for a protection visa contrary to his statement to the Tribunal.  It was also concerned that the applicant claimed to have told his migration agent about his Syed Hazara ethnicity at an early stage, but that information had not been reflected in his application for the protection visa although the statement in it had been translated to, and signed by, the applicant.  It is clear that the applicant had told his migration agent of his Syed Hazara ethnicity at least by 9 May 2001, rather than by 6 June 2001.  But the point of the Tribunal’s concerns related to a considerably earlier period.  Although it remarked, incorrectly, that the claimed ethnicity did not emerge until after the delegate’s decision, it did not place any real significance upon that timing.  In other words, its focus was not that the Syed Hazara ethnicity status appeared because of the delegate’s decision, but that it did not appear at an early stage in the applicant’s claim. 

48                  In those circumstances, I do not consider that the decision of the Tribunal was based upon the erroneous fact identified, in the sense explained by Black CJ in Curragh as set out in [11] above.  The fact which did not exist was not a step in the chain of reasoning which led the Tribunal to take the path of doubting the applicant’s claims about his origins.  The Tribunal’s reasons indicate that it was the failure to make that claim earlier than May or June 2001, and the applicant’s responses to why he had not made that claim earlier, which concerned it.  I do not think the Tribunal’s doubts about the applicant’s credibility would have been different had it appreciated that the claim to Syed Hazara ethnicity was made on 9 May 2001 rather than 6 June 2001. 

conclusion

49                  In the result, I am not persuaded that the Tribunal fell into any reviewable error.  I consider that the applicant should be dismissed, and I so order. 

Associate:

Dated:              27 June 2002