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MIGRATION - Appeal from decision of Refugee Review Tribunal - refusal to grant protection visa - no basis for judicial review regardless of whether appropriate to consider other issues prior to examining effect of s 474 of the Migration Act 1958 (Cth).

WACF v Minister for Immigration [2002] FMCA 108 (29 May 2002)

WACF v Minister for Immigration [2002] FMCA 108 (29 May 2002)
Last Updated: 4 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WACF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
[2002] FMCA 108



MIGRATION - Appeal from decision of Refugee Review Tribunal - refusal to grant protection visa - no basis for judicial review regardless of whether appropriate to consider other issues prior to examining effect of s 474 of the Migration Act 1958 (Cth).



Migration Act 1958 (Cth)

Joam v Minister for Immigration and Multicultural Affairs, [2002] FCA 107 (15 February 2002)

NAAX v Minister for Immigration and Multicultural Affairs (2002) FCA 263 (15 March 2002)

NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 539 (30 April 2002)

NABE v Minister for Immigration and Multicultural Affairs (2002) FCA 281 (19 March 2002)

NABM of 2001 v Minister for Immigration and Multicultural Affairs (2002) FCA 335 (26 March 2002)

Turcan v Minister for Immigration and Multicultural Affairs (2002) FCA 397 (18 April 2002)

Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438

Kwan v Minister for Immigration and Multicultural Affairs (2002) FCA 498 (23 April 2002)

Applicant:
WACF



Respondent:


MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS



File No:


WZ 97 of 2002



Delivered on:


29 May 2002



Delivered at:


Perth



Hearing Date:


29 May 2002



Judgment of:


McInnis FM


REPRESENTATION

Applicant:


In person by videolink



Counsel for the Respondent:


Mr J.D. Allanson



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs to be taxed in default of agreement pursuant to the Federal Court scale and in accordance with rule 62 of the Federal Court Rules up to the date of transfer of these proceedings, namely 15 May 2002, and thereafter be paid in accordance with schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement according to the procedure in order 62 of the Federal Court Rules.

(3) I certify pursuant to Rule 21.15 of the Federal Magistrates Court Rules that it was reasonable for the respondent to employ an advocate to appear on its behalf in these proceedings.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 97 of 2002

WACF


Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this application the applicant seeks review of a decision by the Refugee Review Tribunal delivered on 16 November 2001 which had affirmed a delegates decision to refuse to grant a protection visa. It is common ground that the applicant had arrived in Australia, it would appear, sometime in June 2001. He was then interviewed by an officer of the Department of Immigration and Multicultural Affairs on 26 June 2001. The applicant had lodged an application for a protection visa dated 5 July 2001 and had made a statement in support of that application on the same date. That statement made by the applicant indicated that he was born in Ghazni, Afghanistan, that he was 20 years old, had worked in a mosque as a servant, had not gone to school and could not read or write.

2. Reference was made to the Taliban who came to the applicant's village about three years before and that the applicant's uncle had been taken by the Taliban and never came back. The applicant indicates in that statement that he did not know why his uncle had been taken. The applicant had asserted in that statement in support, the Taliban had not let people pray the Shi'a way and that on one day the applicant's father told him he would be sent to a foreign country and he left with smugglers who took him to Pakistan and then to another country, later said to be Indonesia, before coming to Australia.

3. If he returned, it is said by the applicant he would be taken by the Taliban and put in jail and forced to work or be killed because he was Hazara. The applicant was interviewed by tape recording on 12 July 2001 and there was also reference made in a letter dated 31 August 2001 to the applicant and his advisers, where they were informed of a linguistic analysis of his taped interview and findings of that analysis. Those findings, according to the outline by the respondent and the material before me, included a comment that the applicant seemed to pretend illiteracy, that while his language background was Afghanistan, his pronunciation of some words indicated he had lived a long time in other countries, most likely Pakistan, and that he was probably literate.

4. The applicant was further informed that responses to questions at the interview raised doubts about his claim to be a national of Afghanistan. The comment of the applicant on those issues was invited before a decision was made. Indeed comment was made from both the advisers and the applicant in response to those matters raised and a decision was made on 10 September 2001 refusing the application. That decision by a delegate was the subject of an application to review to the Refugee Review Tribunal. It is noted that the applicant, in the course of that process, was assisted by solicitors acting for and on his behalf.

5. Before the Tribunal the applicant had been invited to attend the hearing. Instead however, it would appear that his advisers at least, provided written submissions in support of the application.

In summary form, those submissions included the following issues:

* The applicant's lack of documentation;

* The issue of the language analysis and the applicant's response to it before the delegate;

* The question of the applicant's literacy;

* The findings made by the delegate which were found to go to the applicant's credibility;

* The risk of persecution faced by the applicant as an Hazara person and Shi'a Muslim in Afghanistan.

6. As indicated, the application before this court seeks judicial review of the decision made by the Refugee Review Tribunal on 16 November 2001, where the tribunal had affirmed a decision by the delegate not to grant a protection visa. Before the court submissions have been made by counsel for and on behalf of the respondent and the respondent has also relied upon written submissions filed 27 May 2001. The applicant has also made submissions before the court and has relied upon submissions set out in a facsimile message dated 16 January 2002.

7. It is appropriate at the outset that I indicate firstly the basis upon which the applicant makes the application in the first instance and I will then refer to the matters raised in the applicant's facsimile message to which I have referred.

8. In his application filed 23 November 2001. The applicant states that he is aggrieved by the tribunal's decision because it --

"didn't pay its deep consideration to my case and I can't return to my country. I am under persecution in my country. I am Shi'a Muslim man which I was under torture, imprisonment and killing because of Taliban."

9. In the same document the applicant claims he would like to apply to the Federal Court of Australia because there is an error in the Refugee Review Tribunal's decision. He goes on to state --

"Actually my life is in danger in Afghanistan. Unfortunately RRT didn't consider my problems in my country. More information written in my case."

10. In the facsimile message dated 16 January 2002, the applicant says the following which I would incorporate in the reasons for decision.

"Respective sir,

(i) RRT member did not accept and doubtful about my nationality. During the interview I told him that I'm Hazara and Shi'a Muslim from Baba Afghanistan. I don't know about all history and geography of Afghanistan but I know about my local areas. I haven't lot of knowledge about politics because I'm illiterate and spend most of my time in mosque. I did not do any other work.

(ii) RRT member did not accept my statement about my journey to Australia. During the interview I told to the member this is my first time in my all life out of Afghanistan during the journey our smuggler behaviour was not goo, he did not told anything about journey mostly he talk with us when we leve that place. He never given more information if we question about anything he used bad words and misbehave.

(iii) RRT member did not accept credibility of applicant and said applicant don't know about his date of birth.

RRT member Ms Margaret Holmes stated (RRT Reference N98/24209, 25 November 1998).

The Department of Foreign Affairs and Trade has advised that most Afghanis do not know when they were born, and generally do not care. They judge their age by historic events or climatic conditions' (Advice from Deputy High Commissioner Islamabad 25 May 1998). The Department also advised that as far as its research can determine, there has never been an organised system of birth registration in Afghanistan certificates can be issued by a hospital to a mother but are often incomplete: Because there is no organised system of birth registration, unless an individual hospital kept records, there would be no opportunity to obtain a birth certificate after the mother left the hospital after the birth. The Department further advised that there had been systems of ID cards in Afghanistan although none is currently operating (Table IS3210 22 May 1998 CX 29810).

(iv) RRT member objection the applicant don't know about the clothes of the Taliban. I told with the RRT member worn different colours of clothes but mostly they worn wite colours clothes. They had not special uniform.

(v) RRT member did not believe the applicant is illiterat how can he read Koran I told with RRT member I read Koran in mosque one year. I did not read formal education in school. There is no relation between formal school education and Koran, because in Afghanistan formal school education in Dari language, but Koran is in Arabic language mostly Afghani people uneducated but they know about their religious education and mostly Afghani people can read Koran".

11. Before the court today an interpreter was sworn in to assist in relation to the receipt of submissions and to interpret and translate the conduct of the proceedings. I understood that the applicant at the commencement of the proceedings expressed some concern about the ability of the interpreter in this case but perhaps more importantly the ability of interpreters on previous occasions when he was seeking to make submissions with either the delegate of the tribunal, to properly and fairly interpret without bias the matters which were being raised and of concern to the applicant.

12. For the present purposes, in relation to the case before me, I am satisfied that the interpreter has conducted the interpretation in a fair and unbiased manner. I am further satisfied, having observed the exchange on a number of occasions between the applicant and the interpreter that the interpreter did in fact well and truly interpret what is being said by the applicant, to the extent that what has been said has been understood by the court and what has been said by the court and counsel for the respondent, understood by the applicant. I am strengthened in that conclusion by the fact that the applicant on a number of occasions was permitted to interrupt, whether by way of statements or questions and that statements or questions asked seemed to me to be in direct response and relevant to the issues raised either by the court or by counsel.

13. The applicant seems to have a very good understanding of the issues in this matter and in particular is able to express in clear terms his grievance about the findings of fact by the Tribunal which are of concern to him in this application. The applicant essentially, it seems to me, seeks to challenge the findings that were made by the tribunal and it is appropriate to consider at least in brief terms those findings which have been referred to in the reasons for decision. The tribunal, albeit in a notation form, at page 125 of the Court Book and thereafter, refers to key findings, some of which I refer to below. The essential point, however, is that the tribunal drew a conclusion that the applicant was not a person the tribunal was prepared to conclude, could be regarded as an Afghani national. In reaching that conclusion the following findings were made, as I say, by way of notation by the tribunal. The tribunal states at page 126 of the court book:

"I note the country information reveals that there are many Hazaras in Pakistan as well as in Afghanistan. Many of the Hazaras in Pakistan have Pakistani nationality.

I note that the applicant has no documentary evidence of his nationality. He used a passport to travel to Indonesia but states that the smuggler took from him there.

I note the evidence of the linguistic analyst, that the applicant's language background is in Afghanistan but that he has been in Pakistan for a long time.

I note that the applicant has serious gaps in his knowledge for someone who claims to have been living in Afghanistan until recently.

He really had no knowledge of or familiarity with the calendar used in Afghanistan. He could not name the months and did not know the year of his birth or the current year.

I note that, despite claiming the Taliban came to his area some years ago, the applicant could not describe the Taliban flag or the clothes worn by the Taliban soldiers.

I note that the applicant claimed to be illiterate but also stated he could read the Koran. I have found the applicant's evidence to be evasive and unconvincing on this point. I am not satisfied that he is illiterate.

I also note the applicant's account of his journey to Australia. I found his evidence evasive on these matters. I am not satisfied that the applicant has been frank".

14. The tribunal went on to make findings that it was satisfied that the applicant had been evasive at times and further stated that he was not frank and open about his journey to Australia, as indicated. Though this may be due, the tribunal notes, to fear of reprisal from the people smugglers who assisted him. But the Tribunal concludes:

"I am not satisfied that his account of his journey is true".

15. The tribunal then goes on, at page 127, to draw conclusions, based upon the notes to which I have referred. Ultimately, the conclusion of the tribunal is that it is not satisfied that on the evidence available to the tribunal that the applicant is an Afghani national and states:

"I consider that he is most probably a Pakistani national. I note the applicant made claims only regarding his claimed Afghani nationality".

16. The applicant, before this court, has essentially, as I understand both his submissions, the matters raised in his application and the other issues raised in his facsimile message of 16 January 2002, raised specific concerns about those findings and, particularly, disputes the findings of fact which relate to descriptions of clothing of the Taliban.

17. He, more importantly, has raised, in my view, other issues which may or may not be relevant in a judicial review of this kind but, essentially, an issue relating to interpreters and the use of the interpreter before the tribunal. Doing the best I can, on the material before me, it is, at least, arguable that the submission made by the applicant is that the interpreter used, before the tribunal, had acted either in a way that was inappropriate, at best, or biased, at worst. He has asserted that from the `bar table' and indicated that during the course of that hearing there were difficulties, given that the interpreter was from a different region to that of the applicant, and from a region where, it may be said, there is some suggestion of hostility by persons in that region to persons, such as the applicant, from another region. Beyond that assertion from the `bar table', however, it's my view that there is insufficient evidence which would assist this court in reaching a conclusion that there has been bias of a kind that might indicate a lack of good faith which may, of course, be a factor that the court would take into account on judicial review.

18. Having said all that, it seems clear to me that essentially the complaint in this case is the finding of fact and the basis upon which that finding is made, which also is clearly an issue which relates to findings of fact by the tribunal, of a kind which I've set out in some detail.

19. I should add that there is a further criticism of the material by the applicant in relation to the linguistic analysis, which was undertaken and which clearly has been relied upon by the tribunal. Counsel for the respondent has indicated that there is authority for the proposition that even if a court on judicial review has reservations about the reliance by a tribunal upon linguistic analysis, that those reservations, of themselves, are not sufficient, and do not provide a sufficient basis, upon which a court undertaking judicial review may interfere with the finding by tribunal in relation to an issue of that kind. I was referred to the recent decision of the Full Court of the Federal Court of Australia in the matter of Joam v Minister for Immigration and Multicultural Affairs [2002] FCA 107 (15 February 2002). The court there, constituted by Drummond, Mansfield and Emmett JJ, had referred to the issue of the reliance by the tribunal on a linguistic analysis. At paragraph 24 of that decision, it appears that his Honour, Drummond J, said the following:

"The Tribunal's trust in the linguistic analysis report as supporting its conclusion that the appellant is not Angolan is made questionable by the brevity of the report, by the unexplained confidence of the analyst in divining that the appellant was attempting to `hide his adeptness at the use of a conventional Swahili dialect,' and had revealed that his intention was to distance himself from Kenyan nationality so that he could feign Angolan nationality, and also by this tribunal's own unexplained confidence in the linguist analyst's opinion, when other tribunals have thought that this kind of evidence when relied on to prove national origin needs to be treated with caution".

20. His Honour goes on to say --

"As the learned primary judge said that there was no reviewable evidence error in finding that the appellant was a Kenyan national. But that is only because the Refugee Review Tribunal is immune from correction by this court in respect of errors of fact no how matter egregious those errors may be or no matter how calamitous the consequences may be for the applicant for a protection visa".

21. Applying those principles to the present case, it is my view that whilst I can well appreciate and understand the reservations of the applicant as to the reliance by the tribunal upon the linguistic analysis, it is clear as a matter of law that when undertaking judicial review, this court cannot draw a conclusion that there has been an error of a kind which would permit judicial review of the decision based on that ground.

22. In relation to the approach to be taken by the court in applications of this kind, it has been drawn to the court's attention that there is now some divergence of opinion as to the role of courts in matters of this kind and particularly as to the manner in which the court should conduct these hearings in the light of those decisions concerning the probative clause and indeed those decisions which relate specifically to section 474 of the Migration Act 1958 (Cth). See NAAX v Minister for Immigration and Multicultural Affairs (2002) FCA 263 (15 March 2002) per Gyles J, NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 539 (30 April 2002) per Gyles J, NABE v Minister for Immigration and Multicultural Affairs (2002) FCA 281 (19 March 2002) per Tamberlin J, NABM of 2001 v Minister for Immigration and Multicultural Affairs (2002) FCA 335 (26 March 2002) per Beaumont J and Turcan v Minister for Immigration and Multicultural Affairs (2002) FCA 397 (18 April 2002) per Heerey J c/f Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438 (Wilcox J), Kwan v Minister for Immigration and Multicultural Affairs (2002) FCA 498 (23 April 2002) Finklestein J). This divergence of opinion will be the subject of an appeal by a specially constituted five-member bench of the Full Court of the Federal Court of Australia, to be heard on 3 June 2002.

23. Even if I were to adopt the approach as suggested by Wilcox J in the decision to which I refer then it would not assist the applicant in the present case. In the present case it is my considered view that each of the issues raised by the applicant are issues of fact. They are issues where he disputes the factual findings made by the tribunal.

24. I accept in the present case the tribunal was exercising its jurisdiction in the correct way, had clearly possessed at the time the appropriate jurisdiction to make the decision it did make, and I cannot see any other error demonstrated in the reasoning and process of the tribunal which would justify me allowing an application, or at least reaching a decision, where I felt the judicial review and a conclusion different to that tribunal was appropriate in the circumstances. Accordingly I order that the application be dismissed.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 29 May 2002
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