Askari v Minister for Immigration & Multicultural Affairs [2002] FCA 216

FEDERAL COURT OF AUSTRALIA

Askari v Minister for Immigration & Multicultural Affairs [2002] FCA 216

HASAN ASKARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W454 of 2001 CARR J 7 MARCH 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W454 OF 2001

BETWEEN: HASAN ASKARI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 7 MARCH 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 W454 OF 2001

BETWEEN: HASAN ASKARI

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 7 MARCH 2002

PLACE: PERTH

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 19 September 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant arrived in Australia on 13 March 2001. On 7 April 2001 he applied for a protection visa. On 17 July 2001 a delegate of the respondent refused to grant him a protection visa. On 18 July 2001 the applicant sought review of the delegate's decision by the Refugee Review Tribunal. On 25 September 2001 the applicant applied to this Court for review of the Tribunal's decision.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · His age on arrival in Australia was 21. He was born in Zabol Province in Afghanistan. · He was an Afghan citizen. His Afghan identity document was in Afghanistan. · He had never attended school, but had had religious instruction. · He was a self-employed wheat farmer for five years. · He was a Shi'a Muslim and a Hazara by race. · He left Afghanistan because there was oppression by the Taliban; Hazaras were being sent to perform military service. · He was of a suitable age to be taken for military service or killed, so his father told him to leave home. · The Taliban had come to his home and asked for him at a time when he was not at home and they kept coming for him, but the applicant was away working on the farm. · He began planning to leave about 3 months before his departure. He obtained the services of a people smuggler who had provided him with a blue passport with his photograph in it but it was not in his name. It was not a genuine passport. 3 The Tribunal noted that on arrival in Australia the applicant had in his possession some documents. They were geographical diagrams and text. One showed places from Gazni province ("Sangi Masha District") to "Arghandaw" and included a diagram of the compass. A second showed more detail of the Sangi Masha District, with indications as to directions. A third consisted of a text description of places in Sangi Masha District, and where they were in relation to each other. According to the translation of that document, it contained Urdu words. The fourth document consisted of another set of place names, headed by Zabul province and Deh Chopan district. The word Gazak was circled. The document also contained a list of the seasons and the months in each season with directions (including an indication of how long it took to get from place to place) to get from a place called Telom to Kandahar by utility. 4 The Tribunal summarised the evidence given to it by the applicant, including his responses to various questions, put to him by the Tribunal, which were designed to test his knowledge about Afghanistan and in particular the area from which he claimed to have originated. The Tribunal also referred to country information about Hazaras and the geography of the area from which the applicant claimed to have come, including the road system. 5 Rather than attempt to summarise the Tribunal's findings and reasons, I incorporate them into these reasons. I have numbered the paragraphs to facilitate the references which I make to them. "FINDINGS AND REASONS 1. The Tribunal accepts that the applicant is a Hazara and a Shi'a, and accepts that Hazaras and the Shi'a are persecuted in Afghanistan. However, the Tribunal is not satisfied that the applicant's country of nationality is Afghanistan. The evidence is that Hazaras live in Pakistan, Iran and parts of Central Asia. So the fact that the applicant is a Hazara does not establish his nationality as Afghani. 2. The applicant's possession of a number of documents containing geographical and other information about Afghanistan (such as information relevant to the Afghan calendar i.e. the names of the months and seasons) indicates he is not from Afghanistan. A genuine Afghan national would not need such information in order to satisfy the Tribunal as to their nationality. The Tribunal is not persuaded by the applicant's explanation for the existence of these documents among his belongings. The coincidence that someone on the boat had coaching materials in relation to the very same area in the same district that the applicant is from is too strong to be believable. The scenario of that other person accidentally putting these very documents into the applicant's bag seems even further against the odds, and only makes the account appear more far-fetched. As for the speculation that someone deliberately put the documents in the applicant's bag: there is no evidence for this and no reason put forward why the perpetrator would not, instead, dispose of the documents completely. 3. The applicant's argument that the documents could not be any use to him because he is illiterate was not persuasive – illiteracy is itself a proposition that can't be tested, and needs to be supported by reference to other aspects of his identity, exactly the question in doubt. The Tribunal sympathised with the applicant's comment that Hazaras are unlucky, but was not persuaded by the applicant's belief that the documents must be someone else's. 4. The applicant's answers about the route out of Afghanistan were thin and hesitant. He was unclear about the direction he traveled in and the main road traveled on. The Tribunal would not rely on this factor by itself but it added to the impression that the applicant did not really come to Australia from Afghanistan. The Tribunal does not accept that the applicant's claimed illiteracy and lack of education were an explanation for this uncertainty. His claim to not know the compass points, while being the son of a farmer, was not plausible. 5. The Tribunal found it very difficult to credit, and does not accept, that the applicant had an Afghan identity document (a Tazkera). If he had a document that could prove his nationality to countries of asylum abroad, he would certainly have attempted to bring it with him. The explanation offered for this state of affairs, that he did not know where he was going or that he was going to be seeking asylum, was implausible. People do not pay thousands of hard-earned dollars to people smugglers without some sort of idea of the destination and the process to be followed on arrival. 6. The questions the applicant was able to answer about Afghanistan were weak as evidence that the applicant is really from there. This sort of information is readily available. 7. The Tribunal has not accepted the applicant is an Afghan national. The applicant has not made claims in relation to any other country. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in his country of nationality, on the information before it. CONCLUSION 8. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa."