Salam Jan v Minister for Immigration & Multicultural Affairs [2001] FCA 1209 (29 August 2001)

Last Updated: 29 August 2001

FEDERAL COURT OF AUSTRALIA

Salam Jan v Minister for Immigration & Multicultural Affairs

[2001] FCA 1209

Migration Act 1958 (Cth)

Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 applied

Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 applied

SALAM JAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

S102 OF 2001

MANSFIELD J

ADELAIDE

29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S102 OF 2001

BETWEEN:	SALAM JAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S102 OF 2001

BETWEEN:	SALAM JAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	29 AUGUST 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 29 June 2001. The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant to the applicant a Protection (Class XA) visa for which the respondent had applied soon after his arrival in Australia on 30 December 2000. To be eligible to be granted the visa, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention") using those terms as defined in the Migration Act 1958 (Cth) ("the Act"): see s 36(2) of the Act.

2 The applicant claimed to be a citizen of Afghanistan of Pashtun ethnicity. He told the respondent through his officers, and later the Tribunal, that he was forty years old and was from Angorada, Paktuka in Afghanistan. He said he had no education, and had worked as a farmer for many years. He claimed that he left Afghanistan because the Taliban "beat us and they ask us to come and fight for them". Those who refused to do so would be shot by the Taliban. He had managed to avoid forcible conscription by hiding in the mountains whenever the Taliban came to his village, but he was fearful that he would not be able to continue to do so. He claimed that in 2000 the Taliban had taken two of his brothers and he had not seen them since. He also claimed (although not when initially interviewed upon his arrival in Australia) that he had been arrested and detained by the Taliban for three months for refusing to fight for them, and during that time they had beaten him and tortured him. He escaped from that detention and fled through Pakistan to Australia.

3 The Tribunal, after reciting in detail the applicant's claims both to officers of the respondent and to the Tribunal, including at a hearing on 20 June 2001, turned to that section of its reasons entitled "findings and reasons". It accepted that the applicant is Pashtun and that he speaks Pashtu, that he is illiterate and somewhat ignorant of matters concerning Afghanistan. It said, however, that :

"Apart from these matters however I do not accept any of his claims as being true and consider that he is not a truthful nor a credible witness. I consider that he is from Pakistan and that he has fabricated his claims relating to Afghanistan."

4 The Tribunal referred to three general categories of evidence in reaching that conclusion. The first was linguistic evidence. The applicant's language had been analysed by three linguistic experts based in Sweden. The linguistic evidence was not uniform in opinion although it pointed generally to the applicant not having been a long standing resident of Afghanistan. The Tribunal was reluctant to base its decision solely upon that evidence. It was aware that a person's language could be tainted or influenced by other languages or dialects, including from those in adjacent geographical locations or by those with whom that person came into contact. It had regard to the extent to which Afghans have in the last period of their history been exposed to languages and cultures of neighbouring countries, including Pakistan and Iran, as well as during the Russian invasion. The Tribunal, having regard to those matters, did not treat the linguistic evidence as decisive. That evidence was uniform in saying that the Pashtu dialect spoken by the applicant indicates that he has been out of Afghanistan for a long time, and one of those analyses spoke with certainty that he spoke a dialect of Pashtu which is from Baluchistan in Pakistan. The second of those reports indicated that the applicant had been living in Pakistan for a long time, and the third similarly that although his language background was probably Afghanistan, the applicant had lived for a long time in Pakistan.

5 The second feature of the applicant's evidence to which the Tribunal had regard in rejecting his claim, even acknowledging his age and illiteracy and his claimed background, was the limited knowledge he had of matters concerning Afghanistan. He had no idea of the identity of the Afghan unit of currency. He had no knowledge of the Afghan calendar. He had very little knowledge of the geography of Afghanistan. The Tribunal also regarded as very vague the details he gave regarding his alleged escape from Afghanistan to Pakistan, and considered that certain information concerning that journey could not have been correct.

6 Finally, the Tribunal regarded the claim of the applicant being harmed by being arrested and detained and mistreated by the Taliban was untruthful, because he had not mentioned that in his first interview. As the Tribunal observed, that experience if it had occurred would have been a very significant element of the factors which might have been expected to have caused the applicant to flee from Afghanistan. His failure to mention it at his first interview with an officer of the respondent on 12 January 2001, after he had landed in Australia, the Tribunal regarded as significant. It did not see how such an important part of the applicant's claim and history could be omitted altogether, so that its omission at that time indicated to the Tribunal that the claim as later made was fabricated. The interview on 12 January 2001 took place through an interpreter in the Pashtu language, and the applicant was invited at the time to provide any reasons why he should not removed from Australia.

7 Accordingly, the Tribunal concluded that the applicant was not a truthful or credible witness. It positively found that he is not from Afghanistan, but is from Pakistan. The applicant made no claims of a fear of persecution in relation to being returned to Pakistan, and there was nothing in the material before the Tribunal which could suggest that he would have any such claims. Consequently, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. The decision not to grant him a protection visa was affirmed.

8 The applicant appeared in person on the application for review of the Tribunal's decision. His application did not identify any grounds of review referrable to s 476(1) of the Act. His oral submissions also did not identify any matter which might fairly have identified an arguable ground of review under s 476(1) of the Act. He did little more than assert facts which the Tribunal had had conveyed to it, but which it had rejected, in its reasons for decision. Given the Tribunal's findings about the applicant's illiteracy and limited knowledge of affairs, his approach to the application for judicial review is quite understandable.

9 The applicant before the Court claimed that he did have a knowledge of the currency of Afghanistan, as well as the currency of Pakistan, because he lived in Afghanistan close to its border with Pakistan. He asserted that, although he may not have known the months of the year in the Afghan calendar, he knew the progression of time by the march of the seasons. He explained that he had a greater knowledge of his village and its geographical features and in proximate areas than that which the Tribunal had ascertained. He also explained that he regarded the Tribunal's criticism of his evidence as to how he had left Afghanistan, and the time it had taken him to journey from Afghanistan to Pakistan as he had described, as not being implausible in the way the Tribunal had discerned. Finally, he explained the linguistic reports as referrable to the fact that he had lived in a village in Afghanistan which was close to the Pakistan border, so that the phonetic reflections of contact with Pakistanis might be perceived in his speech.

10 Each of those matters, in essence, is but an attempt to re-argue the merits of the case before the Tribunal. It is not the Court's function to do that. I have carefully considered what the applicant put, but I do not perceive in any respect that his oral submissions go anywhere towards establishing reviewable error on the part of the Tribunal. I have also considered, independently of the applicant's submissions, the Tribunal's reasons. In Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 at par 13, Stone J said :

"That in cases where an applicant is not legally represented the Court takes a more active role than is usually the case. This requires or involves the Court in examining the reasons for the decision for which review is sought in order to ascertain for itself whether any reviewable error had been made."

Carr J in Hussain v Minister for Immigration and Multicultural Affairs [2001] FCA 523 at par 10 adopted a similar approach. I have adopted the similar approach in reviewing the Tribunal's reasons in this matter.

11 So far as I can determine, it correctly stated the law and it has correctly applied it. It has reached findings of fact in a manner in which it was entitled to do so. It has adopted a procedure in accordance with that required by the Act. In my judgment, the decision of the Tribunal is not flawed with reviewable error under s 476(1) of the Act.

12 I accordingly order that the application be dismissed. I see no reason why the costs of the application should not follow the event. I order that the applicant pay the respondent's costs of the application to be taxed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 29 August 2001

The applicant appeared in person.
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 August 2001
Date of Judgment:	29 August 2001