SBAL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 572

FEDERAL COURT OF AUSTRALIA

SBAL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 572 SBAL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.228 of 2001 MANSFIELD J 10 MAY 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.228 OF 2001

BETWEEN: SBAL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 10 MAY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent 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

SOUTH AUSTRALIA DISTRICT REGISTRY S.228 OF 2001

BETWEEN: SBAL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 10 MAY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant seeks an order under s 39B of the Judiciary Act 1903 (Cth) that the decision of the Refugee Review Tribunal (the Tribunal) made on 30 November 2001 was invalid and of no effect. The Tribunal affirmed a decision of a delegate of the respondent made on 7 September 2001 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 31 May 2001. 2 The applicant is a young man. He claimed to have come from the Paktia province of Afghanistan, to be of Pashtun ethnicity, and to be a Sunni Muslim. He said he came from the village of Ali Sangai, Chawlai in the Paktia province, was uneducated, and had not worked other than around his family house. He claimed to have left Afghanistan about the end of May 2001 to avoid being compulsorily conscripted by the Taliban. He fears he will be killed by the Taliban if he were to return to Afghanistan, because he was not prepared to go to the front line, but instead ran away. 3 The applicant's claim failed because the Tribunal was not satisfied the applicant was truthful, and so was not satisfied that he is a national of Afghanistan as he claims. Consequently, it was not satisfied that he is 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). That requirement is a criterion for the grant of a protection visa specified by s 36(2) of the Act. In practical terms, it meant that the Tribunal had to be satisfied that the applicant is a refugee as defined in the Act. It was not satisfied he is a refugee because it was not satisfied of the basis upon which he claimed that status, namely that he was from Afghanistan. 4 The Tribunal gave reasons why it did not accept that he had been truthful about his experiences and where he had lived. In large measure, those reasons are as a result of the impression of the applicant the Tribunal gleaned during the course of the hearing which it conducted with the applicant on 18 October 2001. It formed the "strong impression" that the applicant was relating a story he had learned, rather than relating actual experiences which he had undergone. It explained why it reached its conclusion by reference to a number of factors. In doing so, it indicated that it had taken account of the applicant's young age, and so was aware that his experiences or recollections may not be reliable but he might still be essentially truthful. Nevertheless it concluded the factors to which it referred, taken together, resulted in it not being satisfied that the applicant had been truthful. 5 The Tribunal explained its impression of the applicant having learned his story by reference in part to his vagueness or lack of memory of a number of details which it expected the applicant to be able to recall. It thought he was vague about how far his village was from another village which he said he visited quite frequently. It described his evidence about what he did during his normal daily activities as "vague and unconvincing". It described his evidence about how the Taliban imposed rules of social conduct upon people as "obviously learned", although it acknowledged that the applicant did not claim to have had personal experience of submitting to the Taliban's rules. It thought his account of how the Taliban came to take him away in early 2001 was also recited, in part because of apparent inconsistency in the number of times the Taliban had come wanting to take him away. 6 The applicant's village was close to the Pakistan border. It was only about a half an hour away by foot. Despite the proximity the applicant told the Tribunal that he had never been to Pakistan. His response was in part by way of comment upon linguistic analysis conducted of an interview recorded of the applicant. The Tribunal found it difficult to accept the applicant would not have gone with his cousin into Pakistan, bearing in mind his asserted close relationship with his cousin and the proximity of Pakistan. Although it did not place any weight on the linguistic analysis itself, it noted the applicant had spontaneously used English at an interview with a delegate of the respondent on one occasion, suggesting to the Tribunal, in the face of the applicant's denial that he had any facility at all with English, that he had lived in an area where some English is spoken, such as Pakistan. 7 It was the combination of those factors, rather than any individual factor, which lead the Tribunal not to be satisfied that the applicant had given a truthful account of his experience and where he had lived, and which in turn lead to the Tribunal rejecting his claim because it was not satisfied as to the criterion specified in s 36(2) of the Act.