WADG of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 162

FEDERAL COURT OF AUSTRALIA

WADG of 2001 v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 162

WADG OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 584 OF 2001 WHITLAM, NORTH & STONE JJ 31 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 584 OF 2001

BETWEEN: APPELLANT WADG OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & 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 to pay the respondent's costs of and incidental to this appeal. 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 584 OF 2001

BETWEEN: APPELLANT WADG OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM, NORTH & STONE JJ

DATE: 31 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The appellant brings this appeal against a judgment of R D Nicholson J made on 18 December 2001. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 27 June 2001. The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant the appellant a protection visa.

proceedings before the Tribunal 2 The appellant arrived in Australia on 26 December 2000. The appellant's application for a protection visa states that he was born on the 6 February 1983. His claims before the Tribunal were as follows. 3 He said he is from Afghanistan and that he fears persecution by the Taliban if he were to return. He said he is a Shia Muslim from the province of Ghazni. He claimed to be of Hazara ethnicity. He claimed that he had four brothers, and helped his mother at home, including by tending a small flock of ten sheep. He claimed that his father was killed in 1998 in Bamian. His father was a delivery driver, and was killed when he went to Bamian to deliver some goods. The appellant claimed that this was part of an indiscriminate killing of Hazara people by the Taliban. Not long after his father was killed, some Taliban visited the appellant's home and alleged that the appellant's father was working with the Hezbe Wahdat. They demanded money and were paid by the appellant's uncle. Then, in November 2000, some Taliban came to his house, and again demanded money. They threatened to take the appellant to prison unless they were paid. Again, the money was paid by a relative, but this time the appellant's mother persuaded the appellant's paternal uncle to arrange for his escape from Afghanistan. 4 The Tribunal set out the claims of the appellant in considerable detail. It then analysed the claims, taking into account the way in which the appellant gave his evidence, country information available to the Tribunal, and two linguistic reports of the language spoken by the appellant. 5 The Tribunal found major difficulties with the appellant's evidence. It is only necessary to mention some examples by way of illustration. For instance, the Tribunal observed that the appellant knew very little about the circumstances of his father's death. The Tribunal found that the appellant was ignorant of basic information about the area in which he lived. And, despite the fact that the appellant said that his father was a delivery driver, the appellant appeared totally unaware of a food blockade between June 1997 and June 1998 which stopped food deliveries from some of the areas in his locality. 6 In relation to his role in looking after the small flock of sheep the Tribunal said: "The applicant claimed to have been looking after the family's sheep for 5 years but he did not know much about his flock. He did not know the age of the sheep in his flock. He was incorrect when asked about the age at which sheep mature and the age at which they had lambs. He was not aware that sheep are fertile throughout the year which is something the Tribunal would have expected him to know given he claimed to have a flock of 4 males and 4 females. He was incorrect in relation to the gestation period of a sheep. He did not know the period for which they could be milked after having a lamb. (The Tribunal obtained its information about sheep from Encyclopedia Britannica 1998 CD ROM). The Tribunal finds it implausible that the family would have a flock of equal numbers of male and female sheep and given that the sheep were kept for their milk that they would kill the female sheep for meat in preference to the male sheep. Due to the applicant's lack of knowledge about sheep and the implausible nature of some of his evidence the Tribunal does not accept that he looked after sheep." 7 In rejecting the appellant's application the Tribunal concluded as follows: "The implausible nature of much of the applicant's evidence, his lack of knowledge about matters in Afghanistan, the fact he had not been truthful when he claimed he looks after sheep led the Tribunal to question whether he is in fact from Afghanistan. The Tribunal refers to the language analysis of the Department's expert that draws the conclusion that the applicant's language has been influenced by the language spoken in Quetta Pakistan. The Tribunal is aware that there are many Hazara Shias who are residents of Quetta Pakistan (see: DFAT Country Information Report No. 97/00 Hazara refugees in Pakistan 10 May 2000 Cisnet CX41933). The Tribunal does not find the language analysis conclusive but it is another factor that adds weight to the view the applicant is not from Afghanistan. As a result of the many problems with the applicant's evidence about his life and experiences in Afghanistan, the Tribunal is not satisfied that the applicant is truthful when he claims to be a national of Afghanistan. Many of these factors would not, on their own, be determinative however taking all of these factors into account the Tribunal is of the view that the applicant has fabricated his claim for refugee status. The Tribunal is not satisfied that the applicant is from Afghanistan but there is insufficient material for the Tribunal to determine where the applicant is from or of which other country he is an national. For these reasons the Tribunal is not satisfied that the applicant is a national of Afghanistan."