WAAB v Minister for Immigration & Multicultural Affairs [2002] FCA 782

FEDERAL COURT OF AUSTRALIA

WAAB v Minister for Immigration & Multicultural Affairs [2002] FCA 782

MIGRATION – refugee – application for protection visa – application for review by Tribunal – application for review of Tribunal decision – Tribunal reasons for decision – various and inconsistent references to approach taken to assessment of applicant's evidence – desirability of clear and unambiguous statement of conclusions – reference to delegate's conclusions – applicant's evidence before delegate - no reviewable error disclosed – application dismissed. Migration Act 1958 (Cth ) Judiciary Act 1903 (Cth) WAAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W458 OF 2001 FRENCH J 19 JUNE 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W458 OF 2001

BETWEEN: WAAB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 19 JUNE 2002

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 W458 OF 2001

BETWEEN: WAAB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 19 JUNE 2002

PLACE: PERTH

REASONS FOR JUDGMENT Introduction 1 The applicant arrived in Australia by boat without lawful authority on 11 March 2001. He claimed to be fleeing from Afghanistan. At an interview with a departmental officer, conducted on 24 March 2001 he was asked, through an interpreter, why he had left his country of nationality. According to the officer's handwritten record of his answer and supplementary questions he said: "We were helpless, there was oppression there. My father's shoulders, were broken, back was broken, burn on his face, I know that, you know that, the whole world know about Hazaras. Who oppressed you. The Taliban. Why don't they like Hazaras. Because we are Hazaras, they beat us saying you are Shi'a. What has happened to you. They killed my father because he did not have weapons. The Taliban would come and oppress me. How. They would say you are Hazara. They didn't do anything else." 2 Asked his reasons for not wishing to return to Afghanistan, he was recorded as saying: "My life is in danger. How My life has danger overthere. (sic) The Taliban will kill me. They will kill me because I am Shi'a and Hazara. We should give the Taliban our weapons." 3 On 7 April 2001, the applicant made application for a protection visa. His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 15 May 2001. The applicant applied to the Refugee Review Tribunal ("Tribunal") for review of that decision on 18 May 2001. On 28 September 2001, the Tribunal affirmed the decision not to grant a protection visa. The applicant now seeks review of that decision in this Court. The Applicant's Claims 4 The original application for a protection visa was supported by a statement prepared by the applicant's migration agent. It was taken through an interpreter at the Curtin Detention Centre on 7 April. In the statement the applicant claimed to be a twenty-one year old Afghan Hazara. He said he was of the Shi'a religion. He lived in his village with his mother, three brothers and a sister. He worked in the village as a shoe repairer. The applicant said he left Afghanistan because he feared persecution by the Taliban. They had come to his family's home to search for weapons. They took his father away and killed him. They broke his father's shoulder, ribs and neck. They had taken about twenty young men from the applicant's village to fight for them over the previous two years. The people taken went missing. None had ever returned. 5 The applicant said that following his father's death, the Taliban revisited his home and searched for weapons. He and his brothers fled from the house because they were frightened that the Taliban would take them away to fight for them. If they were to fight for the Taliban they would be killed. If they tried to leave the front, the Taliban would kill them. In addition, the Taliban put pressure on Hazara Shi'as. They would not let them go to the mosque or pray with open hands. The applicant said he feared that if he were to return to Afghanistan he would be taken by the Taliban to fight for them. He believed they would harm him because of his religion and because of his Hazara ethnicity. 6 On or about 11 April 2001, an officer of the Department conducted a taped interview with the applicant. A copy of the tape was made available to him. The tape was subjected to language analysis by a Scandinavian group operating under the name Skandinavisk Sprakanalys AB. The report of that analysis, which was provided on a single sheet of paper dated 23 April 2001, contained the following statement: "The speech on the tape is Dari-Hazaragi. The person speaking has most probably his language background in Pakistan." By way of elaboration the report went on to say that "The person speaks Dari with a very strong Hazaragi dialect. This dialect is spoken in the central parts of Afghanistan, in the Baluchistan-region of Pakistan and in the south-eastern parts of Iran." Hazaragi was said to be the applicant's mother tongue. Nevertheless he was said to have a very strong Pakistani accent and to use some typical Pakistani words. The person concerned, it was said, did not know anything about Afghan culture and traditions. He was not acquainted with the geographical location of the province Oruzgan from which he claims to come and he had no knowledge about local agriculture. This comment, which appears to have been gratuitous, would appear to fall outside the framework of any language analysis. The report went on to say: "The person's prosody is typical Quetta-Hazaragi and there is almost nothing on this recording which indicates that the person speaking has his language background in Afghanistan." 7 By a letter dated 8 May 2001, a departmental officer wrote to the applicant advising of the linguistic analysis and of its conclusion. A copy of the language analysis report was enclosed. The applicant was invited to make any representations or comment about the analyst's conclusion in writing. It was suggested that he might use the copy of the protection visa interview tape that he was given to organise his own language analysis. The letter then said that if he were to do this and wished the report of that analyst to be considered by the case officer, he would need to forward the report within the time frame specified in the letter. He was informed that Reg 2.15(1) of the Migration Regulations allowed three working days from receipt of the letter for him to send his written comments or his own language analysis report. If unable to respond within the time allowed, he should apply as soon as possible in writing for more time to make submissions or to respond. Under Reg 2.15(4) the Department could allow a further two working days for him to respond. A copy of the letter was sent to his migration agent. 8 The invitation to obtain an alternative analysis was illusory. Inquiry of the Australian Government Solicitor at the hearing of the application in this Court elicited a subsequent response by letter dated 9 May 2002 that the contract between the applicant's advisers and the Department under which they provided services to him would not cover a disbursement by way of obtaining a further language analysis. 9 On 11 May 2001 the applicant's migration agents responded to the departmental officer asserting that he had not lived in Pakistan. The agent submitted that there are Pushtuns and traders who supply goods from Pakistan and who live in the area from which the applicant comes. They speak with their own dialect and accent and use particular words which have affected the language, dialect and accent of other people in the area. It was said that a lot of people from the applicant's village visit Pakistan and Iran for business and return home. This had caused dialects and accents in his area to change and that some new words had been introduced. The applicant was said to have stated that he did not use the words "Chodha Saal" in his interview with the delegate. These words were attributed to him in the language analysis report and said to be "typical Pakistani words". He also claimed to have provided information about the Afghan culture and tradition in his interview but said he was not asked about the geography of Oruzgan. He was a shoe repairer and had only a minimal knowledge of agriculture. He explained this in the interview. It was submitted by the agent that reliance on linguistic analyses as determinative of whether or not the applicant was a national of a given country could be dangerous. Reference was made to another Tribunal decision which supported the proposition that evidence from language experts ought to be used sparingly and only as corroboration of other facts found to exist by conventional means. It was submitted that the applicant was entitled to the "benefit of any doubt that may exist in the mind of the decision-maker". 10 The Tribunal referred to the delegate's findings. It recorded the delegate's conclusion that the applicant had "a fundamental lack of knowledge" about Afghanistan. Upon my first reading of the Tribunal's reasons for decision this reference gave rise to some concern. The Tribunal is not to take into account in its decision-making what the delegate concluded except to the extent that it affects the way in which the applicant presents evidence and claims to the Tribunal or the assessment of that evidence and those claims. Some applicant's agents, as in this case, appear to frame at least some of their submissions to the Tribunal by way of response to adverse findings made by the delegate. This may suggest on their part a misconception of the Tribunal's functions. In the event, it does not appear that the Tribunal's reference to the delegate's conclusions was anything more than a recitation of the chronological history of the application which the Tribunal tracked in some detail from initial interview through the various stages that followed. It also established a framework within which the Tribunal considered discrepancies between what the applicant told the delegate and what he told the Tribunal. 11 Following the rejection of the application for a protection visa by the delegate and the lodging of an application for review of that decision, a further submission was made to the Tribunal by the applicant's migration agent. This was contained in a letter dated 18 June 2001. The submission first attacked the delegate's findings relating to the linguistic report and in that attack reiterated submissions made in the letter of 11 May 2001. It also addressed the delegate's findings that the applicant was unable to demonstrate a knowledge of the general cultural and traditional observances in Afghanistan and that he was unable to describe in detail the irrigation system for agriculture. The submission then turned to the applicant's account of events in Afghanistan which had led up to his departure from that country. It was in substance the same as the submission put before the delegate. 12 The Tribunal hearing was conducted by videoconference with the applicant in Derby and the Tribunal member and an interpreter in Sydney. In that hearing the applicant went into considerable detail in response to questions put to him by the Tribunal. These questions descended to the kind of clothes his mother wore, whether she dressed differently when the Taliban were in the village, what she wore when she went shopping and whether his father and brothers wore anything on their heads. He was also asked to describe his home. He discussed the heating system in it. He was asked about the water supply for the house and what crops were grown in his area. He was asked about drought in Afghanistan. He was asked questions about the national currency and what crops were grown generally in the country. The Tribunal asked about the food his family ate. There were other questions about political parties in Afghanistan, the differences between Shi'a and Sunni Muslims and the basic beliefs of Shi'as. The applicant was also asked to comment on the adverse language analysis. 13 Following the hearing the Tribunal listened to the audiotape of the departmental interview held on 11 April 2001. It set out a detailed account of that interview in its reasons. 14 On 10 September 2001, the Tribunal wrote a letter to the applicant pursuant to s 424A of the Act drawing attention to various aspects of his evidence in support of his primary application which could reflect adversely on his credibility. The migration agent forwarded a submission in response to that by a letter dated 19 September 2001. This covered a variety of matters concerning the kind of hats worn in Afghanistan, the drought, political parties, the heating system in his home, birds and plants in Afghanistan, counting, the Afghan calendar, his brother's marriage and the death of his father. 15 The Tribunal also had regard to country information which it considered at some length in its reasons. The Tribunal's Findings and Conclusions 16 Dealing with the applicant's credibility, the Tribunal accepted the consistency of his claims to be a Hazara from Afghanistan and of Shi'a religion. His claim that he feared the Taliban accorded with country information indicating that the Taliban targeted Haraza Shi'as in Afghanistan. Nevertheless, the Tribunal said it had "reservations" as to his credibility for reasons which it then set out. First it referred to the language analysis which was said to indicate that he was not from Afghanistan. Unlike some others that Tribunal had considered, it found the language analysis to be cogent evidence that he was from Pakistan. It noted that although he had been invited to obtain another language analysis if he disputed that obtained by the Department, he did not obtain one. It is not clear what bearing this observation had on the applicant's credibility. His advisers were not funded to obtain another language analysis. He was in a detention centre. He did not speak the English language. It is extraordinary that the Tribunal seems to have thought he did not obtain a further language analysis as a matter of choice or that this had anything at all to do with his credibility. 17 The Tribunal noted the submissions made by the migration agent about the influence of Pakistani language on dialects in Afghanistan. It referred to the fairly sparse information available about the language analyst who was used to prepare the relevant report saying: "…the Tribunal notes that language analysis is a specialised field, and it is reasonable to expect that the qualifications and experience of the analyst would be given, but the only details as to this are in the Departmental advice of 20 September 2001, that is, the analyst 'grew up in Kabu … and lived in Pakistan for a few years', his mother tongue his Dari and he speaks Pashtu and Farsi, and he is a 'linguist at an academic level' who has been working with Spakab since December 2000. That is, there is no indication of how recent or thorough his knowledge of Hazaraghi as it is currently spoken in Afghanistan nor of what, if any, other experience the analyst of analysing (as opposed to studying) language the analyst has, apart from a few months at Sprakab. (sic) Accordingly, while the Tribunal notes the language analysis appears to be a cogent indicator that the applicant is from Pakistan, rather than from Afghanistan as he has claimed, nevertheless, the Tribunal has not taken the language analysis as the sole determinant of the issue of the applicant's origins." 18 Having identified the language analysis as the first reason for its reservations about the applicant's credibility, the Tribunal turned to the second reason which it identified thus: "…the primary decision casts some doubt as to the applicant's overall credibility since in the primary decision, the delegate noted the applicant's 'fundamental lack of knowledge' about Afghanistan." This is poorly expressed and indicative of error in so far as it suggests the Tribunal may have taken into account the delegate's own conclusions. However what the Tribunal did was to consider the audiotape of the departmental interview held on 11 April 2001 and undertake its own assessment of the evidence given to the delegate by the applicant. Indeed, it seems to have made some findings favourable to the applicant on which the delegate drew adverse conclusions. The Tribunal's concern was that the applicant's evidence in his interview with the delegate indicated a lack of interest or knowledge of political parties in Afghanistan and contrasted with his fairly detailed evidence on that topic at the hearing before the Tribunal. It did not find his explanation for the discrepancy in the subsequent submission of 17 September 2001 convincing. It also referred to discrepancies between his description at interview of the heating system in his house and that he gave at the Tribunal hearing. When it viewed his evidence in the interview with the delegate as a whole, the Tribunal found that evidence to indicate an unwillingness to give information on which the applicant could be asked details. The Tribunal said: "After considering the evidence given in the primary application, as discussed above, while the Tribunal places little significance on some of the matters identified as of concern to the Minister's delegate, there are other elements in the DIMA interview held on 11 April 2001 (including the applicant's evidence as to the heating system used by his family and the unlikeliness of the extent of the professed ignorance of details of his village life) which cause the Tribunal to doubt the applicant's credibility." 19 The third matter to which the Tribunal referred was "… that the applicant's evidence in the hearing raises doubts as to whether he has recently lived in Afghanistan." Under this head the Tribunal referred to inconsistency between evidence given by the applicant to the Tribunal and his evidence at interview with the delegate in relation to the way in which his house was heated. It also referred to his fundamental understanding of the concept of a tawkhanah which is a room heated by a duct from an oven. His evidence that when his mother went out she put a charder or scarf around her head and shoulders was said to be unusual given country information that the Taliban insisted on women wearing full head to toe covering if they left home. Nevertheless it had regard to country information indicating that judicial and police procedures could vary from locality to locality. On this basis the Tribunal viewed it as possible that in the applicant's relatively isolated area Taliban restrictions as to women's dress might not be strictly enforced and so it placed no significance on that point. 20 Still apparently under the general rubric of doubts about whether the applicant had recently lived in Afghanistan, the Tribunal said it initially regarded as implausible his evidence that his father was taken by the Taliban to Oruzgan bazaar some five or six hours walk away and killed and his body then returned home from that bazaar. Nevertheless after further consideration it accepted that the claim was plausible. The final matter to which the Tribunal referred under this head, was a letter from the Executive Committee Chairperson of the Afghan-Australian Human Rights and Charitable Association which asserted that the applicant was a Hazara Shi'a from Afghanistan. Observing that there was no indication of any personal contact between the author of that letter and the applicant and the fact that the correspondence was by way of a form letter, the Tribunal found it to be of negligible significance in relation to the applicant's origins. 21 The matters to which I have referred to above all came under the subheading "The Credibility of the Applicant's Claims". The next subheading was entitled "The Tribunal's Conclusions as to the Applicant's Credibility". Under this heading the Tribunal said it was satisfied that the applicant is a Hazara of the Shi'a religion. It then considered whether he originated from Afghanistan. It noted his ability to refer to some games played in his area, to name most or all of the months in the Afghan calendar and his evidence in the hearing as to crops grown in his area. On the other hand, it observed that the adverse language analysis indicated that he did not originate from Afghanistan. It said it would not rely solely on the language analysis. However, in this case his evidence as to political parties and the system of heating in his home changed substantially between the interview with the delegate and his evidence at the hearing. His answers in the interview with the delegate indicated that at first he did not know of a recent drought in Afghanistan and second, that he was being evasive as to his home environment. The Tribunal then said: The onus on the applicant is not to prove his credibility beyond reasonable doubt. Rather, the Tribunal has to be satisfied, and where doubt exists, to give the applicant the benefit of the doubt. The Tribunal notes too that the applicant claimed that his life experiences were limited in Afghanistan. On balance, after considering all the evidence with a critical eye, the factors which raise a serious doubt in the Tribunal's mind as to whether or not the applicant comes from Afghanistan, rather than Pakistan, are as follows: The language report; the applicant's inconsistencies, including as to how his house was heated; and the applicant's relative lack of knowledge in the Departmental interview of factors such as the drought in his claimed home area of Afghanistan. Having considered the whole of the evidence, including these factors, the Tribunal considers that the applicant has fabricated his claim to have lived in Afghanistan. After considering all the evidence, the Tribunal is not satisfied that the applicant is a credible witness, nor that he is a national of Afghanistan. The Tribunal notes that the applicant has not made Convention related claims against any other country. After considering all the evidence, the Tribunal is not satisfied that the applicant is a person in need of protection under the Convention." The Challenge to the Tribunal's Decision 22 The application filed in the Court in this matter was designated as an "Application for an Order for Review of a Decision of the Refugee Review Tribunal". It was filed on 2 October 2001, which is the day that the provisions of the new Part 8 of the Migration Act 1958, including the privative clause provisions in s 474, came into operation. The application itself disclosed no grounds and nothing that the applicant himself was able to say to the Court indicated any grounds for review whether under the old Part 8 or the new Part 8. 23 In the course of argument, I raised a number of matters with counsel for the respondent going to the Tribunal's approach to assessment of the facts of the case, how it dealt with the language analysis and whether it relied to any degree on the decision of the initial delegate. 24 I have traversed the reasons of the Tribunal at some length. I have done this because, notwithstanding their length and detail, I have been concerned by the language used in different parts of the reasons in expressing the nature of the Tribunal's conclusions about the applicant's claims. At one point it spoke of having "reservations" as to the applicant's credibility. It expressed its want of satisfaction with the explanation given on 17 September 2001 of discrepancies between claims made before the delegate and evidence given to the Tribunal at the hearing. On the other hand, it accepted that the onus was not on the applicant to prove his credibility beyond reasonable doubt. The Tribunal had to be satisfied and, where doubt existed, had to give the applicant the benefit of the doubt. Then it referred to "a serious doubt" as to whether or not the applicant came from Afghanistan. Then it moved from that "serious doubt" to a determination that the applicant had fabricated his claim to have lived in Afghanistan. In the space of a sentence it moved back to the position that it was not satisfied that he was a credible witness, or a national of Afghanistan. 25 These somewhat inconsistent modes of expression in the Tribunal's reasons are not unique to this case. It is not unusual in Tribunal determinations to find references to "doubt" and "lack of plausibility", "concerns" or "reservations" used as a kind of understated way of saying that an applicant is not believed. If an applicant is not believed, it is better for the Tribunal to say so directly and to avoid the suspicion of error that the kind of chopping and changing of language used in these reasons might suggest. If the Tribunal is in doubt or has some reservations about some aspects of the evidence, it may yet be required to carry out an assessment of the risk of persecution for a Convention reason in the event that its doubts or reservations are ill-founded. This is sometimes referred to as a "real chance" assessment. This is not to impose unduly high standards of precision in written expression. It is accepted that the Tribunal members are confronted with a high volume of difficult decisions which, of their nature, must be made expeditiously and on evidence which is at times fragmentary, incomplete and, for a variety of reasons, internally inconsistent. However, as the member in this case recognised in dealing with the linguistic analysis, the consequences for the applicant if the Tribunal makes a wrong decision may be grave. 26 In the event I am satisfied, notwithstanding the infelicities in expression to which I have referred, that the Tribunal has taken into account a variety of factors each of which individually raise doubts about the credibility of the applicant, in making its ultimate determination that the applicant had fabricated his claim to have lived in Afghanistan. Whether that inference was correct or not is not a matter which affords a ground for review of the Tribunal's decision, whether under the old Part 8 of the Migration Act or Part 8 as it came into operation on 2 October 2001. That is no endorsement of the particular conclusion in this case. And specifically, it is no endorsement of the weight given to the language analysis which seems to have played quite a significant role in the Tribunal's conclusion. 27 I am satisfied also, notwithstanding my initial concerns, and some infelicities in its language, that the Tribunal has not had regard to the delegate's own conclusions, but rather to the apparent inconsistencies between what the applicant said to the delegate and the detail which the applicant provided subsequently to the Tribunal. Conclusion 28 Having regard to the preceding matters, there is no ground of review exposed which would support a grant of relief under Pt 8 as it stood prior to 2 October 2001 or pursuant to s 39B of the Judiciary Act 1903 (Cth), whatever view may be taken of the scope and limits imposed on judicial review by the new section 474 of the Migration Act on and after 2 October 2001. The application must therefore be dismissed with costs. I certify that the preceding twenty eight (28)) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.