Ullah v Minister for Immigration & Multicultural Affairs [2002] FCA 60 (8 February 2002)

Last Updated: 11 February 2002

FEDERAL COURT OF AUSTRALIA

Ullah v Minister for Immigration & Multicultural Affairs

[2002] FCA 60

MIGRATION - Review of decision of Refugee Review Tribunal - application for protection visa - jurisdictional error - whether Tribunal ignored relevant material in drawing inferences adverse the applicant's credibility - whether failure to do so gives rise to ground of review - nature of failure to consider relevant facts which will constitute error of law.

MIGRATION - Review of decision of Refugee Review Tribunal - requirement that Tribunal be satisfied that the applicant meet the criteria for a protection visa - whether Tribunal imposed an onus of proof on the applicant in making its decision.

Migration Act1958 (Cth), ss65(1), 36(2), 476(1)(b), 476(1)(e), 476(4)(b).

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 - applied

Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036 - applied

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

Chhour v Minister for Immigration & Multicultural Affairs [2001] FCA 911 - applied

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 - referred to

Curragh Queensland Mining Ltd v Daniel (1992) FCR 212 - referred to

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

Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 - applied

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 - referred to

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 - applied

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 - applied

Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 - referred to

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 - referred to

REHMAT ULLAH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 138 of 2001

MANSFIELD J

8 FEBRUARY 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 138 OF 2001

BETWEEN:	REHMAT ULLAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	8 FEBRUARY 2002
WHERE MADE:	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.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 138 OF 2001

BETWEEN:	REHMAT ULLAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	8 FEBRUARY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

BACKGROUND

1 This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) given on 17 August 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 24 May 2001 refusing to grant to the applicant a protection visa (the visa) for which he had applied on 17 February 2001 under the Migration Act 1958 (Cth) (the Act). As this application was made prior to the commencement of the Migration Legislation Amendment Act (No.1) 2001 (Cth) and the associated legislation, I shall refer to the Act as it stood before those amendments.

2 The applicant claimed to have been born in the village of Dalakchi, a sub-village of Dahud, in the region of Jaghori, in the Ghazni province of Afghanistan. He claimed to be of Hazara ethnicity and of the Shi'a Muslim religion. His native language is Dari. He told the Tribunal that he had only a short period of education in religious studies when aged about 10, and was otherwise uneducated and illiterate. He said he had worked as a shepherd only in the vicinity of his village.

3 The applicant claimed that he left Afghanistan because he feared persecution by the Taliban. He is one of seven children, and he said that two of his elder brothers had fled from his local area before the Taliban had arrived there. In 1998, the Taliban took over his local area. Since then, he claimed, the Taliban had been to his village including his house on three occasions looking for weapons, and for young men to send to the front line to fight for it. On the last occasion, in about November 2000, the Taliban had beaten his father when he said that he did not have any sons and his father was warned that, if he did not surrender his sons to the Taliban the next time they came, he would be killed. Consequently, the applicant claims, his father arranged for the applicant to be smuggled out of Afghanistan. He arrived in Australia on 1 January 2001, after a journey through Pakistan and Indonesia. He said that he had used a false passport on his journey to Australia which had been provided to him by the smuggler, and that he had returned it to the smuggler before his arrival in Australia.

4 The applicant claimed to have been born in 1980, so that he is now 21 years old.

THE TRIBUNAL'S REASONS

5 The Tribunal accepted that the applicant is of Hazara ethnicity, and a Shi'a Muslim. There was information before it that, in Afghanistan, Hazaras and those following the Shi'a Muslim religion may be the subject of persecutory conduct at the hands of the Taliban. However, the Tribunal was not satisfied that the applicant is an Afghani national or that he has ever resided in Afghanistan. Consequently it rejected his claim to have a well-founded fear of being persecuted by the Taliban in Afghanistan for reasons of his ethnicity and religion.

6 Section 65(1) of the Act dictates that the Tribunal should refuse the application if it were not satisfied that the applicant met the criteria specified in the Act and the Migration Regulations for the grant of the visa. In particular, s 36(2) of the Act required the Tribunal to be satisfied that the applicant was 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) as one of the criteria applicable to the grant of the visa. In practical terms, that meant that the Tribunal had to be satisfied that the applicant is a "refugee" as defined in Article 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; ..."

As the Tribunal was not satisfied that the applicant did have a well-founded fear of being persecuted for reasons of his race or religion in Afghanistan, as he claimed, it was directed by s 65(1) of the Act to refuse the application for the visa.

7 The reason for the Tribunal not being satisfied that the applicant is a national of Afghanistan or that he has ever resided in that country was because it did not regard him as a credible witness. It described his evidence at the Tribunal as "implausible, vague, rehearsed and inconsistent". It gave reasons for that conclusion. In reaching that conclusion, it acknowledged that it should assess his credibility in a sympathetic way. In particular, as Gummow and Hayne JJ said in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 577-8 (Abebe):

"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 events, engaged in an often desperate battle for freedom, if not life itself."

8 There were nine reasons given for the Tribunal's conclusion about the unreliability of the applicant's evidence. They were:

* His evidence about the plight of his two elder brothers was "implausible and unconvincing", because he said they had risked the very harm from the Taliban from which they had fled when they returned to their family to tell them "a second time" that they were going to leave Afghanistan, and further because the applicant, when confronted with that implausibility, then referred to his two elder brothers having returned to find out whether his parents were leaving Afghanistan.

* The applicant's evidence as to the Taliban's takeover of the Jaghori district and its consequences was "vague and rehearsed", because (although the applicant had accurately described that takeover as having occurred in about September 1998) the applicant was unable to recall the season of the year during which the takeover had occurred, and his evidence about the impact of the Taliban was "scant, impersonal and rehearsed".

* The applicant provided only "scant" and "vague" evidence about the war in Afghanistan and the plight of Hazaras, suggesting that he had not lived in that country, despite the fact that he said the elders in his village including his father listened to the radio, as the Tribunal expected the applicant to have received some detailed information about major battles and major occasions of mistreatment of Hazaras.

* The applicant's claim that the Taliban sent Hazaras to fight on the front line was "inconsistent and unconvincing", partly because of variation in the information he had provided to the Tribunal about his knowledge of Hazaras who had returned from the front line, and partly because of evasive responses to questions about the Taliban training Hazaras.

* The evidence of the Taliban sending Hazaras to fight on the front line was also implausible, particularly in view of the Taliban's attitude to Hazaras, and in view of independent country information which suggested that the Taliban uses trained soldiers including recruits from other countries.

* The applicant was unfamiliar with geographical features about his local area in Afghanistan, suggesting that his evidence had been "rehearsed" and that he had not lived there at all because (the Tribunal said), despite his evidence about the location and size of two bazaars in the area of Dahud, he misdescribed the location of the town Qumagh which he said he had visited, and he did not know of the location of the major village of Angori, nor the name of the major peak in his local area, nor of the Arghandab River which is the main river in his area.

* Although the applicant recited to the Tribunal the names of several mountains in his area, the Tribunal regarded his explanation as "somewhat evasive" as to how he knew those names, suggesting that he had rehearsed evidence about geographical features in the Jaghori district.

* The applicant's evidence in respect of the furthest distance he had travelled from his village was "implausible and unconvincing", first because he had said he had travelled no further than a 20 to 25 minute walk away from his village, and then when the Tribunal questioned that response he sought to refer to a place he had visited much further away but which he classified as part of his local area.

* The applicant's explanation for having no documentation when he arrived in Australia was "implausible and unconvincing", because he first said he did not think such a document would be of value to him in Australia when seeking refugee status but later he claimed that he had returned it to the smuggler through fear of the smuggler.

CONSIDERATION OF THE GROUNDS OF REVIEW

9 Senior counsel for the applicant, in his thorough and careful submissions, contended that the decision of the Tribunal involved errors of law being both an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the Tribunal, so as to enliven s 476(1)(e) of the Act. He contended that the Tribunal erred in casting an onus of proof upon the applicant. If it did so, it is clear that that would involve an error of law, as the Act requires only that the Tribunal form a state of satisfaction on the critical question about which the case turned, namely whether the applicant has a well-founded fear of being persecuted for reasons of his ethnicity or his religion if he were to return to Afghanistan. The imposition of an onus of proof upon the applicant would be erroneous: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 544-545, and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 233 (Rajalingam). It is also contended that the Tribunal erred in law by not having asked itself whether, notwithstanding its views about the applicant's place of residence before he arrived in Australia, the applicant might have a well-founded fear of persecution for a Convention reason.

10 In Rajalingam, Sackville J (with whom North J agreed) at 231 - 241 addressed the process of decision making by the Tribunal, including the effect of the recent decisions of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo), and Abebe. I respectfully adopt his Honour's analysis.

11 His Honour, in the concluding part of that review, said at 239 [60]:

"It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring."

Having regard to the nature of the task which the Tribunal must undertake, the Tribunal will not always be satisfied as to whether past events have occurred with certainty or with confidence. In such cases, Sackville J said at 240 [62]:

"When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur."

That approach, sometimes requiring the Tribunal to take account of the chance that past events might have occurred, even though the Tribunal is of the view that they probably did not do so, reflects the Tribunal's ultimate task of being satisfied whether the particular visa applicant has a "well-founded fear of being persecuted" for a Convention reason.

12 The Tribunal did not, in this matter, express itself as addressing such a process. It is not obliged to do so in every matter. Its task is to address whether it is satisfied that the applicant has a well-founded fear of persecution for a Convention reason. To do that, in this matter, it formed a view about the reliability of the applicant's evidence. It reached the view that he was not a credible witness. That view was reached having regard to the content of the applicant's evidence and the way in which he presented it. In part, his evidence related to past events. It was proper for the Tribunal to determine whether those claimed past events had occurred. In Guo, Brennan CJ Dawson Toohey Gaudron McHugh and Gummow JJ 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."

In this matter, certain past events reported by the applicant were rejected by the Tribunal. Having rejected that evidence, for the reasons it identified, the Tribunal formed the view that the applicant's evidence was unreliable. The rejection of that evidence, as noted above, was in part because of the manner in which the applicant gave evidence, in part because of the way he responded to particular questions from the Tribunal, and in part because of his level of knowledge of certain matters raised by the Tribunal, together with the independent information available to the Tribunal.

13 The Tribunal appears to have had no real doubt about the reliability of the applicant's evidence, in particular about his claims to Afghan nationality and residency. To adopt a clause used by the majority in Guo at 576, it appears to have taken the view that "the probability of error in its findings was insignificant". Kenny J in Rajalingam noted at 225 that the Tribunal, once it has made its findings in the course of determining whether a visa applicant has a well-founded fear of persecution for a Convention reason does not err in law by failing to ask: "What if I am wrong?". Nor does it err in law by finding facts wrongly or upon a doubtful basis.

14 In my view, on a fair reading of the Tribunal's reasons, the Tribunal's conclusion that the applicant was not a reliable witness was reached with some confidence. It was reached after the Tribunal had expressly referred to the observations of Gummow and Hayne JJ in Abebe at 577-8 as to the need to bear in mind the reasons why an applicant for refugee status may yield to the temptation to exaggerate past events. The Tribunal had an awareness of the need to approach the credit-worthiness of the applicant sympathetically. Nevertheless, it expressed its views firmly and unequivocally. They are, in part, views formed upon the impression given to the Tribunal by the applicant in the course of his evidence. In those circumstances, I do not consider that the Tribunal erred in law in the manner submitted.

15 I have also carefully perused the Tribunal's reasons in the light of the contention that it imposed an onus of proof upon the applicant. I do not consider that it did so. Its reasons correctly identify the question whether it was satisfied that the applicant is a person to whom Australia owes protection obligations under the Convention, and its conclusions also indicate that it correctly addressed that question. There is no express indication that, in the process of its consideration of the applicant's claims, it diverted to asking some other question or that, in addressing that question, it imposed an onus of proof upon the applicant. I also do not consider that its process of reasoning indicates that it imposed an onus of proof upon the applicant. As I have indicated, I consider that it was appropriate for the Tribunal to form views about matters which were the subject of evidence by the Tribunal. In this matter, that involved rejecting certain claims. It gave reasons for reaching those conclusions. I do not consider that those reasons indicate that the Tribunal by its process of reasoning imposed an onus of proof upon the applicant to establish on the balance of probabilities the facts upon which his claims were based.

16 I turn to consider the second contention of the applicant. It concerns the Tribunal's reasons leading to its adverse view as to the applicant's credibility. It is contended that the Tribunal erred by ignoring relevant material and by relying on irrelevant material in such a way as to demonstrate that it failed to apply the law correctly.

17 The contentions put by senior counsel on the applicant's behalf require a detailed analysis of the transcript of the hearing before the Tribunal on 27 July 2001. The parties have presented a transcription from the tape recording of the hearing which, for the purposes of the contentions, they accept as accurate. That is, not all the transcription is accepted as accurate but those parts upon which the parties rely are accepted as accurate.

18 The purpose of the analysis of the transcript was to make out that ground of review that the Tribunal lacked jurisdiction or had erred in law in one of the ways referred to in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 (Yusuf). The joint judgment of McHugh, Gummow and Hayne JJ, after referring to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179, said at [21] - [22]:

"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."

19 The fact that those observations have not opened wide a door to review in the law which previously was thought to have been closed has been decided by Weinberg J in Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036, by Hely J in Capa v Minister for Immigration & Multicultural Affairs [2001] FCA 898 at [30] and by Gyles J in Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 at [15]. Weinberg J in Awan at [40] - [56] discussed the nature of the "jurisdictional error" which will give rise to the ground of review under s 476(1)(b). He explained the position in Chhour v Minister for Immigration & Multicultural Affairs [2001] FCA 911 at [57] - [58] as follows:

"I note, however, that the majority in Yusuf recognised that a failure on the part of the RRT to make a finding on a material issue might fall within ss 476(1)(b), (c) or (e) of the Act ...

The effect of Yusuf is that if the RRT has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material, it may be said to have exceeded its authority or powers, or to have erred in law. However, there is nothing in Yusuf to suggest that the existing scope of judicial review for jurisdictional error has been enlarged: Khan ... It must be remembered that a consideration is not "relevant" for this purpose unless the decision-maker is bound to take it into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42."

20 I respectfully agree with, and adopt, his Honour's reasons in both Chhour and Awan on this issue. In my view, the ground of review available under s 476(1)(b) is not made out simply because the Tribunal had regard to a fact which the Court regards as irrelevant or did not have regard to a fact which the Court regards as relevant. In Yusuf, McHugh Gummow and Hayne JJ at 19 [74] explained:

"This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts."

As their Honours said at 19 - 20 [75], there will be some matters upon which the Tribunal, by reason of the nature of the claims, will be obliged to make findings and a failure on its part to do so (as exposed by its reasons) will reveal an error on its part. However, 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": Yusuf, at 22 [82], 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.

21 The contentions on behalf of the applicant in this matter explore the boundaries of reviewable error under subs 476(1)(b) and (e) of the Act in the light of the decision in Yusuf. He claims that the Tribunal's finding that he was not a credible witness, and consequently its failure to accept that he is a national of Afghanistan or has ever resided there, are marred by such error. That has involved a careful analysis of the Tribunal's reasons and of the material it had available to it, including the transcript of the hearing it conducted.

22 The Tribunal, as noted above, found that the applicant's unfamiliarity with certain geographical facts about his local area, his apparently rehearsed knowledge of some geographical features, and his evidence about the distances he had travelled from his village, were all matters reflecting adversely on his credit. The applicant contends that the Tribunal's approach to those issues failed to take into account other facts relevant to the overall assessment of his knowledge of, and experience around, his local area.

23 The applicant gave evidence to the Tribunal about his upbringing and about the manner of his living and his work in Afghanistan. He told the Tribunal about the animals and crops on the family land, and how they were affected by drought. He was questioned about his knowledge of the breed of sheep, the diseases to which they are vulnerable, and about lambing (including the number of lambs, and the age of the ewe and how many teeth the ewe has before it can start lambing). The Tribunal did not make any adverse comment about the applicant's knowledge on those matters. The applicant contends that that evidence tends to confirm that he was a member of a small farming family, and that the Tribunal in assessing his knowledge of his local area and its environs wrongly ignored that material.

24 The applicant also gave evidence about his education. He said he was educated at his local mosque for about one year, in broken but intensive periods, when he was aged 10. That was religious learning, and he has since continued to read the Koran. Other than that, the applicant said he had no education. The applicant contends that the Tribunal, although it recited his evidence more or less accurately, made no reference to his lack of education in evaluating the significance of other answers he gave to the Tribunal to which it had regard in assessing his credit. He refers in particular to its critical view of his knowledge of the local geographical features and of the history of events impacting upon his area. That apparent failure to take account of his lack of education, his simple way of life, and his evidence overall on the topic including his knowledge of many local features, was also said to amount to a failure to have regard to relevant material so as to enliven subs 476(1)(b) and (e) of the Act.

25 The transcript of the hearing before the Tribunal shows that the applicant knew the names of mountains around his village, because (he said) he was born there and the local people used those names. He did not know the name of the principal river in his area, the Arghandab, but he said he knew it by another name. The Tribunal indicated that it did not accept that that river changed its name along its course. It also told the applicant that it did not accept that he should have no knowledge of geographical features or place names beyond his local area. The applicant referred to other local knowledge in response to questions from the Tribunal. He told the Tribunal, I infer accurately from the absence of any adverse comment by the Tribunal, how long the mountains in his area usually are snow-covered each year. He showed an apparent knowledge of the tribes in his local area. The Tribunal, with the benefit of detailed maps of his local area, further tested his local knowledge. The applicant identified his local village. He was adamant that Jaghori is to the west of his village. It is shown on all maps as being to the east. Although he did not recognise some names appearing on the maps available to the Tribunal, he referred to other towns which did not apparently feature on those maps, at least not under the names he knew them. The transcript indicates that the applicant knew his home down as Dahood whereas it appears on maps as Kowidahood. The applicant (apparently accurately) described the mountain on which his sub-village is built as Shehajaar. The Tribunal pressed the applicant about the farthest distance he had been from his village. He appears to have given two different answers, and to have been uncertain about the direction those places he had visited lay from his village, as well as having been unfamiliar with towns near his village of which the Tribunal expected him to know.

26 The applicant contends that the Tribunal, in forming an adverse view of his knowledge of the Taliban's activities, erred as there was no special reason why he should have the knowledge the Tribunal expected. The applicant described how the elders of his village, including his father, got news of the activities of the Taliban by radio. He said he was nevertheless told little by them on that topic. The applicant was able to tell the Tribunal only little about particular areas of fighting with the Taliban, or of the areas of Afghanistan controlled by the Taliban by the time he fled to Australia. He also told the Tribunal that the Taliban took over his area about two and a half years before the hearing (apparently a reasonably accurate approximation), but he could not describe the season. The Taliban, he said, progressively became more intrusive by searching houses for weapons, demanding money and provisions, and screening young men to be sent to the front line. He said Hazaras were sent to the front line, because the Taliban did not regard them as human and that many young Hazaran men were then killed or disabled. He mentioned particularly arm and leg amputations. He did not suggest that their function was other than to fight. He also described how he managed to avoid being taken by the Taliban by hiding on three occasions they came searching for him. The applicant contends that the Tribunal, in attributing weight to his relative lack of knowledge about the Taliban, failed to have regard to the clear evidence that the Taliban did victimise people of Hazara ethnicity.

27 The applicant's evidence about his two elder brothers also attracted criticism from the Tribunal. He said those two brothers had left his home area before the Taliban arrived, apparently to avoid being sent to the front line or to avoid mistreatment. Then, during the Taliban occupation of his area, he said that his brothers returned for three days a few months before the applicant's own departure from Afghanistan. He said they returned to let their parents know that they were still alive, and to let them know they planned to leave Afghanistan. They exposed themselves to the danger of Taliban conscription, he said, as:

" ... they were thinking that if we don't see (their) parents (before leaving Afghanistan) we will never see them alive again."

Again, the applicant contends that the Tribunal erred in drawing an inference adverse to his credit from that material. It is put that no such adverse inference could, or should, have been drawn and that the Tribunal's approach to that information illustrates that it wrongly focussed on irrelevant facts.

28 The applicant's answers about the absence of any documentation confirming his Afghan origins also received criticism from the Tribunal. He said the only document which might have identified him as an Afghan was the identity document, the taskira, but that he had never had one. He said he had no birth certificate, and that he surrendered his false passport back to the person who arranged his transport to Australia by boat. He contends that there is nothing implausible about his answers, and that the Tribunal erred in having regard to it to his detriment.

29 At the conclusion of the hearing, the Tribunal indicated that it would review the recording of the applicant's interview with the delegate of the respondent on 24 February 2001, as well as the evidence given to the Tribunal. Senior counsel contended that, as the Tribunal's reasons do not refer to any inconsistencies between the information provided at that earlier interview and that provided to the Tribunal, that information was consistent. The fact of that consistency is itself, it is contended, a matter relevant to the assessment of the applicant's credit-worthiness, and one to which the Tribunal failed to have regard.

30 There is a clear, although sometimes fine, line between reviewing a decision of an administrative decision-maker on the merits, and reviewing such a decision for jurisdictional error or for error of law. The scope of s 476(1)(b) and (e), as relevant to this application, has been considered at [17 - 19] above. A factual error made in the course of making a decision will be unlikely to give rise to jurisdictional error unless the particular fact is a jurisdictional fact: see Minister for Immigration & Multicultural Affairs; ex parte Cohen [2001] HCA 10 at [36] per McHugh J. Nor does the Tribunal commit an error of law simply by making a wrong finding of fact: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77. The difficulty in this matter lies in determining whether, if the Tribunal has erred in the way the applicant alleges, that error falls within one of the grounds of review in s 476(1) of the Act.

31 None of the "relevant" matters which the applicant contends that the Tribunal failed to take into account are matters which the Act requires the Tribunal to have addressed: cp Yusuf at [73-74]. The Tribunal was required to properly apply the law. Consequently, it was required to address whether it was satisfied that the applicant has a well-founded fear of persecution for a Convention reason as he claimed. It did that. Its reasoning required it to form a view as to whether the applicant was in fact from Afghanistan. It was not satisfied about that, because it regarded his evidence as unreliable. The Act does not dictate considerations which the Tribunal must take into account in forming a view on that topic.

32 I am not persuaded that, in that circumstance, any of the matters which the applicant has identified as "relevant" but to which the Tribunal did not expressly refer when explaining its reasons for rejecting the applicant's evidence as unreliable, involve error of law as asserted by the applicant. It was for the Tribunal to decide whether the applicant demonstrated familiarity with the geographical features of the area from which he claimed to originate. It identified flaws in the applicant's knowledge in that regard. To conclude that its assessment involved an error of law because other information which was before the Tribunal might have led the Tribunal to a different conclusion about that matter would amount to the Court substituting its own view of the facts for those found by the Tribunal. In addition, the Tribunal should not be taken to have discounted entirely what the applicant told it of his farming knowledge, of his education, or of geographical factors of which the applicant was aware, simply because it has not mentioned those matters when explaining why it regarded the applicant's knowledge of the local geography as deficient. Its view was also formed in part upon the way in which the applicant presented his evidence on that topic. The Tribunal described it as "rehearsed". The Tribunal is entitled to have regard to such impressions. To go behind the Tribunal's finding about the applicant's local geographical knowledge would be to usurp its role as the fact-finder in circumstances where the Court did not have the advantage of seeing and hearing the applicant give his evidence. Clearly, the Court should not do so.

33 In my view, the Tribunal's approach to the applicant's knowledge of Taliban activities is also not shown to be infected with legal error. The Tribunal did have information that the Taliban used Hazaras for mine clearing activities, and the applicant's answers to the Tribunal were capable of conveying that that was what he claimed did happen to Hazaras. However, the Tribunal derived from his evidence on the topic that the applicant's assertion was more general in nature, namely that Hazaras were taken for fighting in the front line. His answers are capable of conveying that information, and indeed their generality entitled the Tribunal to identify that as his claim. The applicant did not suggest that the purpose that the Taliban recruited Hazaras was other than to fight. Once that understanding of the applicant's evidence is adopted, as I consider the Tribunal was entitled to do, it was open to the Tribunal to be critical of the applicant's knowledge of the Taliban activities. Moreover, as the Tribunal's reasons indicate, there were other respects in which the applicant's knowledge of the Taliban activities were regarded by the Tribunal as falling short of that which it regarded as appropriate in his circumstances.

34 I also consider that the Tribunal has not been shown to have erred in law in the way it dealt with the applicant's description of his brothers' movements as that material affected its assessment of his reliability. Its view was formed in the light of the applicant's evidence to the Tribunal, including his responses to the Tribunal's suggestion that his claim about his brothers' return was implausible. It may be that other minds might not have regarded that claim as implausible. But that does not demonstrate legal error on the part of the Tribunal, and its subsequent questions of him then elicited what the Tribunal regarded as inconsistent responses. Such responses may properly be considered by the Tribunal.

35 It was also submitted that the Tribunal erred in regarding the applicant's evidence about why he had no documentation confirming his Afghani origins as implausible. That, however, is a judgment available to the Tribunal. It is not for the Court to substitute its own view on such a matter, and then to declare legal error on the part of the Tribunal for not having the same view. Accordingly, even if the Court would not itself have reached that view on that matter, the Tribunal is not shown to have erred in law in having done so.

36 Overall, I do not consider that the Tribunal has been shown to have erred in law by failing to have regard to matters which were relevant to its consideration of the applicant's claims, and which it was required in law to have addressed to properly perform its function.

37 The applicant finally submitted that the Tribunal erred in terms of s 476(1)(g) of the Act, as explained and limited by s 476(4)(b). That is, he contends that there was no evidence or other material to justify the making of the decision because it was based upon the existence of a particular fact, and that fact did not exist. There were two particular facts upon which, it was claimed, the decision was based and which did not exist. I adopt the descriptions of those two particular facts, including the emphasis of the applicant. The first is the fact that the applicant was lying about the flight and temporary return of his brothers on the basis that the brothers would not have returned in those circumstances. The second is that the applicant was lying about the Taliban seeking out Hazaras to fight in the front line on the basis that the Taliban do not use Hazaras in the front line including mine clearance.

38 I am not persuaded that either or both of those two composite facts are facts which, in the sense relevant to ss 476(1)(g) and 476(4)(b), were critical steps in the process of the Tribunal's reasoning: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. Nor do I consider that either of those two "facts" were particular facts which did not exist. One of the reasons why the Tribunal found the applicant not to be credible was his evidence about the return of his two elder brothers and their reasons for that return. The Tribunal found that evidence implausible, partly on its face and partly because the applicant gave two different reasons for his brothers' return. It is an over-simplification to say that the Tribunal did not believe the applicant only on the basis that his brothers would not have returned to the area once the Taliban had arrived. The Tribunal's reasons are more complex. And, in so far as those reasons in this respect are based upon the finding that his two brothers did not flee and then return to his local area, that finding is made for reasons given by the Tribunal which do not themselves admit of being particular facts under s 476(1)(b). The criticism of the applicant is a criticism of a process of reasoning leading to a finding of fact, not an identification of a particular fact upon which the reasoning was then built and which is shown not to exist. Furthermore, I am not persuaded that the particular fact has been shown not to exist. Put at its highest, the applicant only gets as far as disputing the quality of the reasoning and so the integrity of the conclusion of the Tribunal. If the particular fact is that the applicant was not lying about the flight and temporary return of his brothers, the applicant's contention is that the reasoning of the Tribunal is not logical because his evidence is not implausible. Even if that be accepted, it does not demonstrate that the particular fact did not exist. If the particular fact is that his brothers did not flee and return temporarily to see their parents, the applicant has not shown that that fact did not exist, i.e. that his brothers did return to visit their parents. His argument, if it is accepted, extends only to showing that the Tribunal's reason for taking the opposite view is not logical.

39 Similar considerations apply to the second of the two composite facts identified by the applicant. The particular composite fact identified adds reference to Hazaras being used in the front line for land mine clearance. The reference to land mine clearance does not come from the Tribunal's findings and reasons. I do not consider that it made that finding. Its findings, in this regard, relate to the applicant's claim that he feared being sent to the front line to fight, as other Hazaras had been sent to the front line. The Tribunal regarded that claim as implausible, based in part upon independent country information to which it referred. Its conclusion that that evidence was implausible is not itself a particular fact, but a conclusion drawn from certain specified information. Consequently, the matters of fact upon which the Tribunal, in part, drew its conclusion are not shown not to exist.

40 In my judgment that ground of review must also fail.

CONCLUSION

41 For the reasons given, I consider that the applicant has not established any reviewable error on the part of the Tribunal. I therefore order that the application be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:

Counsel for the Applicant:	Mr G Barrett QC
Solicitor for the Applicant:	Jeremy Moore & Associates
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 November 2001
Date of Judgment:	8 February 2002