SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598

FEDERAL COURT OF AUSTRALIA

SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598 SCAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 67 OF 2002 von DOUSSA J ADELAIDE 10 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 67 OF 2002

BETWEEN: SCAS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 10 MAY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application dismissed. 2. Applicant to pay the respondent's costs to be taxed. 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 67 OF 2002

BETWEEN: SCAS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE: 10 MAY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 14 February 2002. The Tribunal affirmed a decision of a delegate of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the applicant a protection visa.

Background Facts 2 The applicant arrived in Australia in April 2001. He claimed to be a citizen of Afghanistan. On 23 July 2001 he lodged an application for a protection visa. His entitlement to this visa relevantly turned on whether the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, as defined in s 5(1) of the Migration Act 1958 (the Act). Australia has protection obligations to people who are refugees within the meaning of the Refugees Convention and the Refugees Protocol. The applicant's claim to fall within the definition of refugee in Article 1A(2) of the Refugees Convention appears to have rested upon allegations that he was at risk of persecution by the Taliban for reasons of his race and religion (being a Hazara and a Shia Muslim), and further on the ground that he and his family were members of a particular social group (namely "rich" people, his father being the owner of a taxi). 3 In his visa application the applicant said he was born in Aaghil Balna, Hitcha, Jaghuri, Ghazni, Afghanistan in 1986. He said that from 1992 until 1996 he lived in Bedak, Sang-e-Masha, Jaghur, Ghazni, and during that period he completed four years of education. He said that he left Afghanistan following harassment by the Taliban who had assumed control of Jaghuri three years prior to his departure. As his father was considered a rich man by the Taliban they had extorted money from him. He said his family was harassed by the Taliban because they had no weapons to donate. He said that approximately fourteen months before his departure from Afghanistan he was beaten by the Taliban because he did not donate weapons. He said he was taken away and only released when his father came to get him. He was permitted to leave but his father was kept for fifteen days until he paid a fee for his release. The applicant said his father was beaten by the Taliban whilst in detention. He also said that two years before he departed Afghanistan his uncle was arrested by the Taliban for having two pistols. His uncle was accused of involvement with Hezb-e Wahdat party, and that he subsequently disappeared. 4 The applicant said that about three months before he left Afghanistan his father complained to the village elders regarding extortion by the Taliban. Following this complaint he said his father was again detained by the Taliban and only released following further payments to them. 5 The applicant said that about eight months before he left Afghanistan he and his father were detained by the Taliban, held for two days, and harassed regarding their religion. The village elders secured their release by paying a fee to the Taliban. 6 The applicant said that his father decided to send him overseas when the family was advised that the applicant had been conscripted by the Taliban, and his name appeared on a list. 7 The applicant was interviewed by a delegate of the respondent on 30 July 2001 when he substantially re-stated his earlier claims. He said that he had some difficulty expressing himself and appeared not to recall all the claims he had previously made. He said that he had no experience with interviews and he did not know what was expected of him. 8 Following that interview the delegate commissioned a language analysis to determine the applicant's country of origin. A report by Eqvato Stockholm, dated 21 August 2001, found that the applicant's "Hazaragi dialect is Pakistani". The examiner stated that the applicant pronounced many words with a Pakistani pronunciation and used Urdu words. The examiner expressed the opinion that the applicant's dialect "may with considerable certainty be said to originate from: Pakistan, Quetta". 9 The applicant was informed of the language analysis and asked for his comment. He provided a response through an adviser. He stated that he had lived throughout his life in Ghazni, Afghanistan. He stated that he had an uncle who lived in Quetta who had returned to Ghazni with his family, including his wife and children who were born in Quetta. The applicant said that his uncle was taken by the Taliban and subsequently disappeared. The applicant said that his father subsequently supported his aunt and cousins over four years. He said they spoke with a Pakistani accent and he adopted that accent. 10 The delegate rejected the visa application, finding that the applicant did not present a credible account of his circumstances. The delegate considered that his claims had not been presented consistently, some were implausible, and the linguistic analysis did not support his claim that he lived his entire life in Afghanistan. 11 The applicant sought a review of this decision by the Tribunal. The Tribunal received a submission on the applicant's behalf prepared by his adviser. The adviser essentially re-stated the applicant's claims and argued that no weight should be given to the language analysis commissioned by the department as Eqvator did not provide adequate reasons for its conclusions, and there was insufficient information regarding the analyst's qualifications and experience. 12 The Tribunal also received a further submission from the applicant's adviser with a letter to the Tribunal from a Mr Syed Hassan Hussaini who said he could confirm that the applicant was indeed from Ghazni as he claimed. In his letter Mr Hussaini said that he came from the Jaghuri district in the province of Ghazni. He said he knew the applicant's father, mother and grandfather very well. He gave details of places where he claimed to have seen the applicant's mother and father. He said that he saw his father in Sang-e-Masha town many times. He wrote: "If RRT want to know more information about (the applicant) then I am ready to give witness evidence in front of RRT at any time that (the applicant) is from Afghanistan. Please sir send my witness evidence statement to the RRT as soon as possible and inform the RRT about my witness evidence."