WABT v Minister for Immigration & Multicultural Affairs [2002] FCA 33 (14 January 2002)

Last Updated: 22 February 2002

FEDERAL COURT OF AUSTRALIA

WABT v Minister for Immigration & Multicultural Affairs [2002] FCA 33

MIGRATION - judicial review - Refugee Review Tribunal - no reviewable error disclosed - application dismissed - no question of principle

Migraton Act 1958 (Cth)

Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 cited

WABT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 519 AND 520 OF 2001

FRENCH J

14 JANUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W519 and 520 OF 2001

BETWEEN:	WABT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 JANUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

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

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	W519 and 520 OF 2001

BETWEEN:	WABT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	14 JANUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant, who is 24, arrived in Australia by boat on 7 March 2001. On 24 March, he was interviewed by an officer of the Department of Immigration and Multicultural Affairs. On 3 April, he lodged an application for a protection visa. He was interviewed by a delegate of the Minister on 8 April. On 25 July 2001, the Department refused his application. He lodged an application with the Refugee Review Tribunal ("the Tribunal") on 30 July and there was a Tribunal hearing on 2 October. On 29 October, the Tribunal upheld the delegate's decision not to grant him a protection visa. On 7 November 2001, he lodged two applications in this Court for review of the Tribunal's decision. One of those appears to have been an application under the Migration Act 1958 (Cth) as it stood before 2 October. The other was simply on a Form 5 setting out his assertion that he needs justice and a review of his case. Neither of these applications, respectively numbered 519 and 520, disclosed any grounds for review.

2 In the Tribunal's reasons for decision it said the applicant claimed to be a shepherd from a village near the town of Angoori in the Ghazni province of Afghanistan. He said he had lived in that location all of his life until he left for Australia. At the entry interview he had said he was a Shi'a Muslim and an ethnic Hazara. He had fled Afghanistan because of Taliban oppression in Hazara. He claimed he had been detained once when the Taliban came to his mosque and he was taken to their base at a hospital with six or seven other colleagues. His father had arranged his release. His two brothers have been missing for eighteen months. His father arranged for him to come to Australia and he travelled here through Pakistan.

3 In his application for a protection visa the applicant said that he had gone to school in Angoori. In a supporting statement he also said that the Taliban would come and bash people and demand they hand over their weapons. He said he was detained for twenty days before he left Afghanistan. He repeated that his father had arranged his release. The Taliban had not explained why he was detained and had not done anything to him. He said they would not allow him to pursue his religion and he would go to the mosque with other Shi'a but was always in fear of the Taliban. He feared they would take him to the front line. His employer had taken money from his father to get him out of Afghanistan.

4 The Tribunal considered a linguistic analysis of the applicant's speech arranged by the Department of Immigration and Multicultural Affairs. That analysis suggested that the language he used came from Pakistan. He had rejected that finding. He said many people in his area travelled between Afghanistan and Pakistan and Pakistani traders came into Afghanistan. He said he may have picked up some of his language from them and also from doctors in his region who came from Pakistan.

5 The Tribunal referred to the applicant's interview by the Minister's delegate. It noted that at that interview he was vague in answering questions about geography, customs and about his work as a shepherd. He had explained his apparent lack of knowledge by saying he was very afraid of the interview process. He also said he had recently given up cigarette and snuff addictions and his mind was not ready to answer questions in detail.

6 The Tribunal referred to his written submissions and his argument that he could not relocate to another place in Afghanistan. It also considered what he had said at the hearing. He told the Tribunal he kept up with information by talking to other people, but did not listen to the radio. He was asked by the Tribunal about prominent events and people in recent Afghan history. The Tribunal referred to his answers in its reasons. It was satisfied that on the basis of his physical appearance and country information he is Hazara and of Shi'a religion. The Tribunal observed however, that Hazara Shi'ites are not only to be found in Afghanistan but also in Pakistan. It said that the main issue it had to decide was whether or not the applicant was a national of Afghanistan. It referred to his claim that he is illiterate and ignorant of many things. While the Tribunal could accept that illiteracy might be the cause of some ignorance, it did not explain why the applicant was vague or unaware of local geography, customs and recent history. The Tribunal was satisfied that he was vague and partially ignorant of matters at his entry interview because he had not been in the area that he was asked about. It was also satisfied that the knowledge of the area that he showed in later interviews came from learning such things while in detention. The Tribunal referred to some contradictions in the applicant's statements about his attendance at the mosque and about the Taliban's monitoring practices. It was of the view that these contradictions suggested that he had made up parts of his evidence. He had said he had never heard a radio broadcast, although the Tribunal found it was apparent that radio is a central source of information for Afghans in all parts of the country. The Tribunal also referred to his ignorance about prominent people in Afghanistan. It was satisfied that he would have known about these people if, as he claimed, he had been present when the events in which they were involved took place. It was satisfied that his ignorance of significant characters, particularly of people who affected the Hazara population, was a result of him not having lived there. His statements about the availability of water and the incidence of drought during the period he was in Afghanistan did not match the situation represented in reports available to the Tribunal. He had said he was never paid to work and that his father was usually paid in produce or goods rather than money. The fact that he could raise the money necessary to pay the people smugglers to get into Australia was said to the Tribunal to have contradicted what he said about how his family was usually paid. The Tribunal did not accept his evidence that he had no idea how much it cost to arrange his escape from Afghanistan.

7 The Tribunal concluded that the applicant had not lived in the area in which he claimed to have lived all his life. It did not accept that he was a truthful witness and was not satisfied that he had been in Afghanistan. It found that he did not face any real chance of persecution for one of the reasons under the Refugees Convention.

8 The Tribunal's decision in this case turned entirely upon its view of the credibility of the applicant and his story. The power of the Court to review a decision of the Tribunal was limited essentially to grounds of mistake in law or procedure up to 2 October. The powers of the Court have been further affected by border control legislation which came into operation on 2 October. There has been no legal representation for the applicant in this case and no submissions made about the operation of those laws. On one view, those laws may increase the scope of review available in this Court in respect of natural justice. Their operation is discussed in a recent decision given on 20 December by Merkel J in Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839. It is not necessary, in this case, for me to consider their full operation because neither under the new law nor the old law could this application succeed. Whether the new law is given a wide interpretation or a narrow interpretation, this application could not succeed. For these reasons the application is dismissed. The applicant is to pay the respondent's costs of the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:

	WABT appeared on his own behalf
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 January 2002
Date of Judgment:	14 January 2002