Ibrahimi v Minister for Immigration & Multicultural Affairs [2001] FCA 1912

FEDERAL COURT OF AUSTRALIA

Ibrahimi v Minister for Immigration & Multicultural Affairs [2001] FCA 1912 Migration Act 1958 (Cth) s 476(1), 476(1)(e), 476(1)(g), 476(4)(b) Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 referred to Abebe v Commonwealth of Australia (1999) 197 CLR 510 referred to MOHAMMED ALI IBRAHIMI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W271 of 2001 RD NICHOLSON J 18 DECEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W271 of 2001

BETWEEN: MOHAMMED ALI IBRAHIMI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 18 DECEMBER 2001

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 W271 of 2001

BETWEEN: MOHAMMED ALI IBRAHIMI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 18 DECEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application for an order for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 27 June 2001. The Tribunal confirmed the decision of a delegate of the respondent not to grant to the applicant a protection visa. The application is brought in reliance on the provisions of s 476(1) of the Migration Act 1958 (Cth) ("the Act"), as they were up to and including 1 October this year. 2 The applicant claimed to be a citizen of Afghanistan and he arrived in Australia on 26 December 2000. He claims to have been born in Afghanistan on 6 December 1983, so that he is now 18 years of age. The delegate's decision was made on 27 April 2001. 3 The jurisdiction of this Court to review a decision of the Tribunal has been limited by Parliament as provided for in s 476 and particularly subs (1). It is important that the applicant understands that the function of this Court is limited by that parliamentary expression. This Court does not have the power to remake the decision that the Tribunal made. The Court is bound to look for what are called errors of law as described in the Act. 4 The applicant has appealed to me to look on him as my son in a detention centre or like my son. I deeply understand that as a youthful person with a limited educational background, he would want to be out of detention as soon as possible. He has my sympathy. Unfortunately, that has nothing to do with the decision I have to make today. That decision is whether the Tribunal was in error in any of the ways which this Court is permitted to look at. 5 The applicant made the following claims before the Tribunal: (a) He was born in Afghanistan on 6 December 1983 and is a Hazara Shia. (b) His father was a delivery driver and was killed by the Taliban in Bamian in 1998 when his father went to make deliveries. (c) The Taliban came to his house in February 1998 claiming that his father was a soldier and a military man with the Hezbe Wahdat and his mother had to pay the Taliban 1.000 lak, otherwise they would take the applicant away. The applicant's uncle paid them some money and they left. (d) The Taliban came to the applicant's house a second time on 5 November 2000. There were five or six of them, they ripped his shirt, pulled him roughly and said that if his mother did not give them money they would take the applicant to prison. His uncle paid them some money and they left. (e) The applicant went and stayed at his uncle's house for fourteen or fifteen days. His uncle helped him to escape, saying that the applicant would be killed or, sent to the front line or imprisoned if he stayed. (f) The Taliban captured two people from his village and they were never seen again. (g) The Taliban would not permit people to pray with their hands open but with their hands closed. (h) With the help of his uncle who arranged for a smuggler to assist the applicant, the applicant left Afghanistan travelled to Australia via Indonesia on a (it would seem false), passport. (i) The applicant claimed he would be killed by the Taliban if he were to return to Afghanistan. 6 It is to be noted from these claims that fundamental to them was the claim that he was from Afghanistan and that his well-founded fear of persecution was based on the fact that he considered he would be killed by the Taliban if returned there. 7 When the claims of the applicant were considered by the Tribunal, there were a large number of matters which went to the Tribunal's findings adversely to the applicant in relation to his credibility. The respondent's submissions listed in summary the following 18 matters of inconsistencies or implausibilities which the Tribunal found: § When interviewed the applicant was not very knowledgeable about Afghanistan. He could not name the provinces or famous geographical features. § The applicant was very vague when asked questions as to where his uncles obtained the money to pay the smuggler. § The applicant claimed to have been looking after the family's sheep for five years but he did not know much about his flock. He was incorrect when asked about the age when sheep mature and the age at which they have lambs. He was not aware that sheep are fertile throughout the year which the Tribunal expected him to know given he claimed the flock had four males and 4 females. He was incorrect in relation to he gestation period of a sheep. He did not know the period for which they could be milked after having a lamb. The Tribunal found it implausible that the applicant would have equal numbers of male and female sheep and would kill the female sheep in preference to the male sheep for meat. Due to the applicant's lack of knowledge about sheep and the implausible nature of some of his evidence, the Tribunal did not accept that he looked after sheep. § The applicant claimed his father was a delivery driver and made regular deliveries to Ghazni, Bamian, Behsud, Sang-emasha and Kabul and appeared totally unaware of a food blockade from June 1997 to June 1998 which stopped deliveries to some of those areas. The applicant claimed his father was unexpectedly caught in fighting in Bamian in 1998 that had just started, whereas the country information indicated there had been heavy fighting in and around Bamian for a considerable period before 1998. The applicant's claims that there were never any problems with the fighting where his father drove cast doubts on the applicant's claims that his father was a delivery driver. § The applicant was ignorant of information about his own area. He did not know there was a town of Jaghoori. When he was asked about the route he followed to leave Afghanistan, the applicant claimed not to have travelled through Jaghoori. When it was put to him that he said he lived in Jaghoori district he responded it was a big place. § When asked how he was aware of the Taliban's advance the applicant's evidence was very vague and confused. § The applicant knew nothing about the circumstance of his father's death and he did not ask his uncle anything about how his father died or why he was killed. The Tribunal considered this implausible. § The applicant claimed the Taliban rounded up lots of young men but when asked for specifics he claimed that they took two men. § The applicant claimed that they could not keep paying the Taliban, yet his uncle had access to US$4,000.00. § The applicant claimed that when the Taliban first came to the village they said they would make the area secure and told the villagers they would come back and collect their weapons. It was implausible if the Taliban were securing the area that they would not collect the weapons when they first took over. The applicant was unable to explain how the takeover by the Taliban affected his village. He appeared to recite a learned list. § The applicant claimed that the Taliban would not let the girls go to school but there was no school in his village. § The applicant claimed that the Taliban would not let the villagers work the fields but when asked to explain this he was vague in his evidence and was unable to do so. If, as the applicant claimed, the Taliban were confiscating the villagers' grain, it was in the Taliban's interest to let the villagers work the fields. § The applicant was unable to explain how the lack of rainfall had affected the irrigation systems and said the drought had not affected the sheep when such lack of rainfall would have affected pasture and the country information indicated that most people in the drought affected areas had to sell sheep. § The applicant claimed to have left Afghanistan in a vehicle but could not describe the countryside. The applicant's excuse that he was too busy to look out the windows was implausible. § The applicant was unable to describe the road to Sane-emasha which he claimed to have travelled on more than once. § The implausible nature of much of the applicant's evidence, his lack of knowledge about matters in Afghanistan and the fact that he had not been truthful when he claimed to have looked after sheep led the Tribunal to question whether he was from Afghanistan. § The applicant's language analysis that he had been influenced by the language spoken in Quetta Pakistan was not conclusive but added weight to the view that the applicant was not from Afghanistan. § The Tribunal was not satisfied that the applicant was truthful when he claimed to be a citizen of Afghanistan. There was insufficient material for the Tribunal to determine where the applicant was from but the Tribunal was not satisfied that he was a national of Afghanistan. 8 Before me the applicant appeared unrepresented. He was unable to keep any written notes because he does not have the skill of writing. It is perhaps consistent with the life which he said he led before in his claims to the Tribunal that the applicant was not very knowledgeable in response to a number of matters. However, my assessment of his credibility has nothing to do with the matter. The thing is whether the Tribunal was entitled to its findings in an unreviewable way. 9 The applicant in his submissions sought to address three of the matters on which the Tribunal made and supported its adverse credibility findings. The first was how long it took for sheep to give birth; the second was how long before lamb became a sheep; and the third was whether the Tribunal was correct in saying that there was a town as well as district by the name of Jaghoori. In relation to the second, the applicant said he had made a mistake in his response because he addressed the lifetime of a sheep rather than the transition stage from a lamb. 10 In his reply, he asked that this Court should consult people from the Jaghoori district on both the first and second questions who would be able to provide information to the Court likely to support his evidence before the Tribunal. Again, however, it is not for this Court to make such an inquiry but only to see whether the Tribunal was entitled at law to the conclusion it has reached even if there may be unreviewable mistakes in the conclusion of the Tribunal. 11 The position is that the Tribunal's conclusions, and particularly its conclusion that it was not satisfied the applicant was truthful when he claimed to be a citizen of Afghanistan, were based on a vast number of matters. It had before it evidence that the applicant lacked knowledge about matters of which he could be expected to be familiar. There were inconsistencies between his evidence and country information. There were significant aspects of his evidence which the Tribunal found to be implausible. 12 The consequence of all of this is that this was not a case where it could be said that there was no evidence or other material to justify the making of the Tribunal's decision, see s 476(1)(g) of the Act. Even if it be assumed that the Tribunal's decision on credibility, and hence its decision that the applicant was not a refugee from Afghanistan, was based on the existence of the particular facts, being the three I have identified, this was not a case where it was shown that the particular fact did not exist: see s 476(4)(b) of the Act. 13 The findings which the Tribunal made were not ones in relation to which it can be said involved either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts. see s 476(1)(e) of the Act. 14 With abundant evidence to do so, the Tribunal grounded its decision on its assessment of the applicant's credibility. A finding on credibility is very much the function of the primary decision-maker. See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423, [67] per McHugh J. Having made its factual findings, it was inevitable that the applicant's claim to have a well-founded fear would fail: compare Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 545, [84] – [86] per Gleeson CJ and McHugh J. 15 It follows that as no identifiable error falling within s 476(1) of the Act appears, the application for review has to be dismissed. 16 However, I add this: it is apparent from the applicant's submissions to this Court that the period of detention which he has experienced as a young person is producing stresses and strains for him. It is, of course, open to the applicant to cease his quest for the visa which he sought and to be removed from Australia. He appears to wish to join other people who have been released from the camp and who came with him to Australia. With the adverse credibility finding against him in respect of his claim to be from Afghanistan, careful consideration needs to be given to where the applicant could be returned without sentencing him to a life of endless litigation. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.