WADH of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 159 (31 May 2002)

Last Updated: 31 May 2002

FEDERAL COURT OF AUSTRALIA

WADH of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 159

APPLICANT WADH OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 585 of 2001

WHITLAM, NORTH & STONE JJ

31 MAY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 585 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT WADH OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM, NORTH & STONE JJ
DATE OF ORDER:	31 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 585 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT WADH OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM, NORTH & STONE JJ
DATE:	31 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision made on 13 December 2001 by a judge of this Court dismissing an application to review the decision of the Refugee Review Tribunal ("Tribunal") which affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant the appellant a protection visa.

BACKGROUND

2 The appellant, who claimed to be a citizen of Afghanistan, arrived in Australia on 1 March 2001. On 3 April 2001 he applied for a protection visa under the Migration Act 1958 (Cth) ("the Act") which was refused by a delegate of the Minister on 7 June 2001.

3 On 8 June 2001 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision not to grant a protection visa to the appellant on 27 August 2001. The appellant was notified of the Tribunal's decision by letter dated 28 August 2001. On 7 September 2001 the appellant lodged an application for an order for review with this Court.

DECISION OF THE TRIBUNAL

4 The primary judge summarised the appellant's claims in relation to his country of birth (Afghanistan), his ethnicity (Hazara), religion (Shi'a Muslim), parentage, schooling, the effect of the presence of the Taliban in his village, his departure from Afghanistan to Pakistan in January 2001, and his claim to fear persecution because of his religion, ethnicity and illegal departure from Afghanistan. His Honour also set out, at considerable length, the reasons and findings of the Tribunal. For this reason it is unnecessary to detail the Tribunal's decision at any length.

5 It is sufficient to note that, in his application for a protection visa, the appellant had claimed to have lived all his life in the village of his birth. The appellant claimed that the Taliban came to his village, conducting weekly searches for guns and ammunition and members of the Wahdat Party, and that, while trying to flee on a number of occasions, he was caught and beaten by the Taliban. The appellant fled Afghanistan under arrangements made by his father. The appellant claimed he feared returning to Afghanistan because he would be killed because he is an Hazara and Shi'a and because he left the country illegally.

6 The Tribunal accepted the appellant's claims as to ethnicity and religion. However, the Tribunal was not satisfied that the appellant was from Afghanistan, or an Afghan national. The primary judge referred to a transcript of the proceedings before the Tribunal which was tendered by counsel for the appellant, which disclosed the basis of the Tribunal's findings. In the words of the primary judge:

"The transcript ran to some 28 pages, almost all of which comprised intense questioning by the Tribunal of the [appellant] about his knowledge of the area in which he lived, his knowledge of his father's business, the local population, recent history of Afghanistan affairs and the like. It is apparent from the transcript and from the Tribunal's reasons that it was unimpressed by what it considered to be how little the [appellant] knew of these matters."

7 The Tribunal also referred to the appellant's interview by the Minister's delegate on 10 April 2001 and to a specialist linguistic analysis of that interview. The opinion of the language analyst was that the appellant "most probably" had his language background in Afghanistan. However, the analyst also found that the appellant had a slight Quetta accent that indicated that he had been living for some time in Pakistan.

8 In commenting on the language analysis the appellant stated that his language was influenced by the Mullahs who had been educated in Iran and Pakistan and had taught new Farsi and Urdu words to the people in Afghanistan. The appellant also said that he may have picked up a Pakistani accent from his uncle, who was in partnership with his father, and who travelled to Pakistan to buy goods. The appellant also stated that he had never been out of his village because it is in a mountainous area making it almost impossible to visit nearby villages. The Tribunal referred to the language analysis in the context of its adverse finding as to the appellant's credibility and its general rejection of the appellant's claims to be an Afghan national. The Tribunal noted that the language analysis was not sufficient to satisfy it that the appellant was an Afghan national and that the analyst's assessment that the appellant had lived in Pakistan for some time was not supportive of the appellant's claims "that he had lived in Afghanistan all his life and had never been out of his sub-village until he came to Australia".

9 Because it was not prepared to find that the appellant was a national of Afghanistan, the Tribunal did not accept the appellant's claims that he would be persecuted by the Taliban for Convention reasons if he returned to Afghanistan. It held that his claims to fear persecution were not well-founded. The Tribunal noted that the country information before it indicated that there was a Pakistani Hazara community and speculated that the appellant may be a national of Pakistan. In any event the Tribunal concluded that there was insufficient evidence for it to make any finding as to the appellant's rights of residence or citizenship in relation to any country other than Afghanistan.

DECISION OF THE PRIMARY JUDGE

10 As previously noted (see [4] above) the primary judge reproduced the findings and reasons of the Tribunal at some length in his judgment. His Honour then set out the grounds of review in the appellant's amended application. Omitting the particulars the grounds of review were:

(a) The Tribunal erred in law in determining that the [appellant] did not have a well-founded fear of persecution for a convention reason, on the basis that the Tribunal was not satisfied that the [appellant] was an Hazara from Afghanistan and the [appellant] had made no other claims of persecution: ...

(b) The Tribunal erred in law, alternatively made its decision without jurisdiction, alternatively its decision was not authorised by the [Act].

11 The primary judge noted that the appellant's written submissions were largely, but not exclusively, based on some eight points made in relation to the first ground of review. These were:

* That the [appellant] as a young boy would not have left his village in rural Afghanistan;

* That the [appellant's] father would operate his business from the nearest town, but continue to live in a remote village several hours walking away;

* That the [appellant] could study and learn to read the Koran in Arabic without reading his own language Dari;

* That the [appellant] would not have a greater knowledge of his own father's business;

* That the [appellant] would not have a greater knowledge of the Political events in Afghanistan over the last 25 years;

* That the [appellant] would not be aware of the parties comprising the Hesb-e-Wahdat formed in Iran in 1987;

* That there was no school or shop in the [appellant's] village;

* That the [appellant] did not mention any of 29 matters by which the Taliban imposed restrictions and punishments upon Afghani women.

12 These were referred to by the primary judge as "the Eight Matters", which the Tribunal said were unconvincing when it determined the appellant was not a citizen of Afghanistan. These eight matters, with the addition of at least two other claims by the appellant regarding his education and the location of his sub-village, were matters the Tribunal relied upon in deciding not to believe the appellant.

13 Counsel for the appellant had argued that none of "the Eight Matters" was capable of supporting the Tribunal's conclusion that the appellant's claims were implausible. The appellant also claimed that none of the material before the Tribunal supported an inference that the appellant was a national of any country other than Afghanistan. In the primary judge's view the Tribunal relied on "the Eight Matters" in the course of making an adverse finding as to the appellant's credibility and consequently in rejecting his claims. His Honour accepted that the Tribunal's reasoning supported this credibility finding and did not accept that reasoning process disclosed a reviewable error or jurisdictional error.

14 His Honour was of the view that other particulars of the first review ground were directed to a review of the Tribunal's decision on the merits. His Honour addressed only one of these particulars, namely that there was no material before the Tribunal to indicate that the appellant was not an Afghani citizen. His Honour pointed to the language analysis, where it was said the appellant had spent "some time" in Pakistan, and the Tribunal's reference to country information about the number of Hazaras in Pakistan, to contradict this claim.

15 His Honour rejected the appellant's claim that the Tribunal's decision was illogical "in the sense that it was based on material which was incapable of supporting the conclusions reached by the Tribunal." His Honour noted, and in our opinion quite correctly, that:

"The conclusions which the Tribunal reached were that the [appellant] was not an Afghan national, did not come from Afghanistan and had not lived there under Taliban rule. It reached those conclusions on the basis that it disbelieved the [appellant's] evidence to that effect.

As I have mentioned, that credibility finding might be open to criticism, but in reaching it I do not think that the Tribunal fell into error of law or jurisdictional error. In my view, the material to which I have referred ... when coupled with the Tribunal's adverse credibility finding constitute sufficient material to support its conclusions."

16 His Honour also rejected a submission by the appellant's counsel that, having found the appellant was not to be believed, regard should have been had to the independent evidence in the form of the country information about the number of Hazaras in Afghanistan and the language analysis. This was said to be evidence upon which it was open for the Tribunal to find the appellant was an Afghan national. However, as the primary judge noted, the country information about the Hazaras was referred to and the language analysis, while indicating certain reasons why the appellant "most probably had his language background in Afghanistan" also referred to the fact that a slight Quetta accent indicated the appellant had been living in Pakistan for some time.

17 His Honour rejected the argument by the appellant's counsel that the Tribunal had erred when, in light of its finding that the appellant was not an Afghani national, it did not establish that the appellant was a Pakistani national. In his Honour's view, "the Tribunal was under no obligation to make a positive finding on the question whether or not the [appellant] was a national of Pakistan or had rights of residence or citizenship in relation to any other country." The primary judge also rejected a submission that the Tribunal was obliged, in any event, to determine if the appellant was a refugee.

18 Before the primary judge, the appellant also submitted that the Tribunal had failed to assess correctly whether he had a well-founded fear of persecution. The primary judge pointed out that the Tribunal had set out the relevant principles of law and that the Tribunal was entitled, as a matter of law, to find, based on the paucity of evidence before it, that the appellant was not a national of Afghanistan. His Honour also rejected a submission that the Tribunal was trying to establish an onus of proof or a balance of probabilities.

19 Finally, the primary judge rejected a claim that the Tribunal relied on irrelevant material in making its credibility assessment.

THE APPEAL

20 The appellant lodged a notice of appeal from the decision of the primary judge on 21 December 2001. No meaningful ground of appeal was given, the appellant merely stating that he was not satisfied with the primary judge's decision and sought justice from the primary judge. The appellant was unrepresented on the appeal and, not surprisingly, was unable to point to any error made by the primary judge. His only submission related to the language analysis and amounted to a claim that the analysis was in error in concluding that he had been living for some time in Pakistan. Whether or not to accept that analysis and the weight to attribute to it is, however, a matter that is for the Tribunal to determine. It does not fall within the jurisdiction of this Court. A close and careful reading of the decision of the Tribunal and the primary judge does not disclose any error of law made by his Honour or indeed by the Tribunal. For this reason the appeal must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 31 May 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms L B Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 May 2002
Date of Judgment:	31 May 2002