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MIGRATION - judicial review - refugees - real chance assessment - whether doubt as to nationality should be subject of real chance assessment - whether Tribunal obliged to make finding as to nationality to avoid breach of non-refoulement obligation - whether finding that linguistic report "not evidence" was erroneous

Raza v Minister for Immigration & Multicultural Affairs [2002] FCAFC 82 (28

Raza v Minister for Immigration & Multicultural Affairs [2002] FCAFC 82 (28 March 2002); [2002] FCA 350
Last Updated: 9 May 2002


Raza v Minister for Immigration & Multicultural Affairs [2002] FCAFC 82
Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350

MIGRATION - judicial review - refugees - real chance assessment - whether doubt as to nationality should be subject of real chance assessment - whether Tribunal obliged to make finding as to nationality to avoid breach of non-refoulement obligation - whether finding that linguistic report "not evidence" was erroneous

Migration Act 1958 (Cth) s 476

Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549

Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332

Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104

GHULAM RAZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S162 OF 2001

FRENCH, MERKEL AND GYLES JJ

28 MARCH 2002

MELBOURNE (Heard in Adelaide)

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S162 OF 2001



On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
GHULAM RAZA

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
FRENCH, MERKEL AND GYLES JJ

DATE OF ORDER:
28 MARCH 2002

WHERE MADE:
MELBOURNE (Heard in Adelaide)



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant is to pay the respondent's costs of the appeal.

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
S162 OF 2001



On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
GHULAM RAZA

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
FRENCH, MERKEL AND GYLES JJ

DATE:
28 MARCH 2002

PLACE:
MELBOURNE (Heard in Adelaide)




REASONS FOR JUDGMENT
Introduction

1 The appellant arrived in Australia by boat without lawful authority on 30 December 2000. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 22 January 2001. A delegate of the Minister for Immigration and Multicultural Affairs refused his application on 16 March 2001 and on 19 March 2001 he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 24 May 2001, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. He then applied to this Court for an order of review of the Tribunal's decision. That application was heard on 20 August 2001 by Mansfield J and dismissed on 29 August 2001. The appellant now appeals against that decision.

The Tribunal's Findings

2 The appellant said he was a national of Afghanistan and would be persecuted if returned to that country because he is of Hazara ethnicity and Shi'a religion. The Tribunal identified as central to its decision in the case the question whether or not the appellant was, as he claimed, an Afghan national. The Tribunal member said:

"If I cannot be satisfied that the applicant is an Afghan national, I cannot be satisfied that he has a well-founded fear of persecution in Afghanistan."
The Tribunal accepted that the appellant is of Hazara ethnicity and Shi'a religion. It found, however, that the independent evidence indicated that these factors were not determinative of whether he was a national of Afghanistan. In the Tribunal's view the appellant's evidence concerning matters to do with Afghanistan was "extremely problematic". He was said to be vague and unconvincing in relation to a number of aspects of his evidence and to have given evidence that was inconsistent with independent evidence before the Tribunal. Moreover, he was said to be unaware of matters which the Tribunal considered would be known to him if he were from Afghanistan. The Tribunal said:

"Overall, I consider the applicant to be an unsatisfactory witness and I do not find his evidence credible."
3 The Tribunal then referred to what it described as a number of examples of the unsatisfactory nature of the appellant's evidence. He claimed he was from the Day Chupan district in Zabol province and had lived all his life there until his departure for Australia. But when asked to name districts around that area he named other places which not only are not in the same general area, but not even in the same province. He was unable to name any of the localities in the immediate vicinity of Day Chupan. His knowledge of the geography of his area was said to be unsatisfactory in a number of other ways.

4 When asked how he had left Afghanistan the appellant was said to have recited a list of locations in what appeared to be a rehearsed fashion and to have been unable to provide any satisfactory explanation for his travel from Day Chupan to places such as Sang-e Masha which is to the north of Day Chupan and therefore not a logical route to take to go to Kandahar which is to the south. The appellant told the Tribunal that the route was the smuggler's idea but the Tribunal did not consider this explanation satisfactorily explained why the route he designated had been chosen rather than a more direct route.

5 The Tribunal also referred to the appellant's complete unfamiliarity with the Persian calendar which is in use in Afghanistan. He was not only unaware of the years of the calendar but also of the names of the months. The Tribunal rejected the appellant's explanation that the Afghan calendar was not used in the area in which he lived. It also referred to his inability accurately to describe an Afghan identity document which he said he had had for some twenty years. In the Tribunal's view had he actually had such a document he would have been able to provide a description of it that more closely resembled that provided in the independent evidence.

6 Other problems with his evidence referred to by the Tribunal included his story to the delegate that he had harvested wheat every year including the year he left Afghanistan. The Tribunal referred to the delegate's observation about the drought that was then, and is still, afflicting Afghanistan. The appellant consulted with his adviser then told the delegate that his harvest had been slightly reduced because of the drought. At the hearing before the Tribunal he had claimed there was no drought in his area as it is mountainous and there is a lot of snow. Nevertheless the Tribunal accepted independent evidence before it which indicated that virtually all of Zabol province including that part in which Day Chupan is located is either severely or extremely severely drought affected. The Tribunal regarded it as "inherently implausible" that the appellant would have been able to harvest a considerable amount of wheat in 2000. His evidence, particularly when considered in conjunction with his ignorance of the geographical area strongly suggested that he had not lived in Zabol province.

7 His evidence concerning what led to his departure from Afghanistan was also said to be unsatisfactory. According to the appellant the Taliban had been in control of his area for some six years. Nevertheless he told the Tribunal that he had managed to avoid arrest and assault and conscription by the Taliban because they had left his area, which was an Hazara area, alone until after Mazar-e Sharif fell. The Tribunal regarded his evidence in this respect as internally inconsistent. Mazar-e Sharif had fallen to the Taliban initially in 1997 and finally in 1998. The appellant, however, claimed to have remained living in his own area until late 2000. Although he told the Tribunal that he used to hide when the Taliban came, the Tribunal did not find his evidence on this point persuasive.

8 The Tribunal characterised the appellant's evidence about arrangements for his departure from Afghanistan as &quo;
t;extremely vague". He had given inconsistent evidence in relation to his ability to afford the $4,000 fee to the smuggler. The Tribunal said:

"Considered in isolation, each of the problems with the applicant's evidence might not be determinative of the lack of credibility of his claims. However, when the overall unsatisfactory nature of the applicant's evidence is considered, I am led to conclude that he has fabricated his claim to be from Afghanistan in an attempt to create for himself the profile of a refugee."
The Tribunal could not be satisfied that he had ever lived in Zabol province as claimed. It could not be satisfied that he had ever lived in Afghanistan. Although there was insufficient evidence before the Tribunal to allow it to determine his nationality, it was unable to be satisfied that he was a national of Afghanistan.

9 A linguistic analysis had been obtained by the Department of Immigration and Multicultural Affairs. This indicated that the appellant's language was consistent with him originating from Central Afghanistan. On this point the Tribunal said:

"However, I do not consider the linguistic analysis to be conclusive of the applicant's place of origin. Furthermore, I do not consider that this report outweighs all of the other significant problems with the applicant's evidence. In the circumstances, I cannot accept this report as constituting evidence that the applicant is a national of Afghanistan. As I cannot be satisfied that the applicant is a national of Afghanistan, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason in that country."
The Proceedings at First Instance

10 Following the decision of the Tribunal the appellant lodged an application for an order of review of the Tribunal's decision in this Court. The application was obviously drawn without legal advice and disclosed no grounds of review falling within the grounds permitted under s 476 of the Migration Act 1958 (Cth) as it then stood.

11 In his reasons for decision the learned primary judge summarised the Tribunal's reasons. He observed that the Court is not entitled to review decisions of the Tribunal on the merits. He referred to submissions which the appellant put to the Court, including a written submission, made with the assistance of a friend, which repeated claims made in the Tribunal and added three points endeavouring to confront and explain the Tribunal's conclusion as to his credit. He claimed that he was confused when speaking to the Tribunal and that he felt under pressure at the Tribunal hearing and therefore had trouble recollecting events and locations. He complained that the Tribunal had not invited him to add additional information in support of his claims and that he would then have explained that he had a "tattoo" or inoculation scar which is peculiar to Afghans. He also claimed that the Tribunal had not had regard to the manner of his speaking and that his accent and vocabulary indicated that he was from Afghanistan.

12 In his Honour's view these matters did not demonstrate any reviewable error on the part of the Tribunal. The approach of the Tribunal to assessing whether the appellant was from the area of Afghanistan as he claimed and whether he feared persecution from the Taliban in that area by reason of his ethnicity and religion, was open to the Tribunal on the material. It was based on rational grounds and arrived at after consideration of matters which were logically probative on the issue of the appellant's credibility.

13 His Honour did refer to the Tribunal's observations concerning the linguistic analysis. He commented that the expression of the Tribunal that it did not accept the report "as constituting evidence that the applicant is a national of Afghanistan" was an unhappy one. The report was plainly evidence to that effect. His Honour, however, saw the Tribunal in saying this as saying no more than it had weighed the evidence provided by the linguistic analysis report together with other evidence to which it had referred in its reasons in deciding that it was not satisfied that the applicant is a national of Afghanistan. It was not a case of attributing to the linguistic analysis no weight. The sentence preceding that complained of showed, in his Honour's view, that the Tribunal was properly weighing that evidence in reaching its decision. In the event the application for review was dismissed.

Grounds of Appeal

14 The Notice of Appeal filed against his Honour's decision on 21 September 2001 discloses no viable grounds. The stated grounds are:

"3. I am a Shia Hazara from Afghanistan. My life was and still is in danger from the TALIBANS. TALIBAN were sending us hazaras to their front line which I had managed to avoid by hiding in mountains.
4. I have a wife, a very old mother and three children. Could you please grant me leave to appeal to the Full Court as I cannot possibly return to Afghanistan."

15 The appellant has had the benefit of pro bono representation in the conduct of his appeal to this Court. An amended notice of appeal has been lodged and the grounds set out in that notice are in the following terms:

"1. The trial Judge erred by failing to hold that RRT did not engage in the reasonable speculation required of it in relation to its finding that the Appellant was not an Afghan national.
2. The trial Judge erred by failing to hold that the RRT erred so as to give rise to a ground of review under section 476(1)(b), (c) and/or (e) of the Migration Act 1958:

(a) by determining the application for refugee status solely by reference to whether the Appellant was an Afghan national without determining whether the Appellant would be returned to Afghanistan and/or could be returned to a third country without persecution for a Convention reason;

(b) by not disposing of all the relevant issues, merely by disbelieving the Appellant's claim of nationality; and/or

(c) by failing to turn its mind to the question whether the Appellant was able to obtain effective protection in any other country even if the RRT did not accept his claim to be an Afghan national; and/or

(d) by failing to determine the Appellant's nationality or country of habitual residence.

3. The trial Judge erred by failing to hold that the RRT erred when it concluded that the linguistic analysis of the Appellant obtained by the Department did not constitute evidence that the Appellant is a national of Afghanistan."

Whether the Tribunal Engaged in the Required Reasonable Speculation

16 It was submitted for the appellant that the Tribunal failed to consider that it may have been wrong in its finding that the appellant was not an Afghan national. It was submitted that a fair reading of the Tribunal's reasons allowed the conclusion that it had some real doubt that its finding on this question of fact were correct. This was said to be evident from the following matters:

1. The Tribunal understood that the appellant was claiming to be a national of Afghanistan.

2. The Tribunal accepted the appellant's claim that he is Hazara and Shi'a but did not find this "determinative" of whether he was a national of Afghanistan. It implicitly accepted that his ethnicity as a Hazara and his religion as Shi'a was material in favour of him being an Afghan national albeit not conclusive.

3. The Tribunal referred to independent evidence which included information provided by the Department of Foreign Affairs and Trade that there are between 120,000 and 160,000 Hazaras currently in Pakistan and of that number between 80,000 and 100,000 have Pakistani nationality.

4. The Tribunal had stated that the claims and evidence before it included the Department file which incorporated the decision of the Minister's delegate who had been willing to accept that the appellant originated from Afghanistan. At the same time the delegate had expressed a view that the appellant was most likely a long term resident in a third country such as Pakistan.

5. On a full and fair reading of the Tribunal's reasons it was submitted the only possibilities of the appellant's nationality or country of habitual residence were Afghanistan or Pakistan.

6. The Tribunal found the appellant's evidence concerning matters to do with Afghanistan problematic. It did not find any of the individual problems with the appellant's evidence fatal to his claim that he was an Afghan national. It rejected his claim on the basis of a cumulative consideration of the overall unsatisfactory nature of his evidence.

7. The Tribunal referred to a linguistic analysis which indicated that his language was consistent with his originating from central Pakistan.

8. Although there was insufficient evidence to allow it to determine the appellant's nationality, the Tribunal was unable to be satisfied that he was a national of Afghanistan.

17 The submissions went on to argue that the Tribunal was unable to state that the appellant was a Pakistani national in circumstances where its reasons set up Afghanistan and Pakistan as really the only two options. The Tribunal, it was said, had doubts about its finding that it was unable to be satisfied that he was a national of Afghanistan. These doubts were evident from its acceptance of the existence of rational probative material in favour of the appellant being an Afghan national. Counsel for the appellant argued that the Tribunal had concluded on balance that the material in support of his claim to be an Afghan national was outweighed by the Tribunal's adverse assessment of his credibility although it conceded that each of the problems about his evidence was not of itself determinative.

18 In substance the argument reduces to the proposition that the Tribunal failed to carry out the "what if I am wrong" analysis required of it in determining whether the appellant fell within the Convention. The requirement for a "what if I am wrong" analysis amounts to no more than the requirement that the Tribunal consider whether the appellant faces a real chance, or non-trivial probability, of persecution for a Convention reason if returned to the country of origin. That assessment must be carried out even if the Tribunal is of the view, on the balance of probabilities, that an applicant for a protection visa will not face persecution for a Convention reason. If, on the other hand, the Tribunal has concluded that there is no chance or probability of persecution such a conclusion excludes in the alternative hypothesis any alternative probability. In that case the Tribunal is not required to assess fanciful possibilities. The requirement for the so-called real chance assessment does not arise in respect of the determination of the country of nationality or residence. That is a threshold issue. As counsel for the Minister pointed out, the Tribunal must first determine whether the applicant for a protection visa has the requisite "well-founded fear" of persecution. This requires the Tribunal to be satisfied that there is a subjective fear and an objective basis for it. Absent any subjective fear then (infants and incapable persons apart) there can be no question whether there is a well-founded fear. A person claiming fear of persecution as a national or resident of Afghanistan who is found not to be a national or resident of that country is a person in respect of whom the necessary subjective fear is not made out. That is to say the person is not shown to have any fear of persecution whether well-founded or otherwise

19 In any event the Tribunal's finding that the appellant did not come from Afghanistan was supported by strong conclusions as to his credibility based on rational and probative considerations. The Tribunal was not obliged to accept the linguistic analysis as outweighing those considerations. And although it expressed itself infelicitously in relation to the linguistic analysis report, the substance of its reasoning process is sufficiently exposed to indicate, as his Honour found, that it did not err in that respect. The first ground of appeal therefore does not succeed.

Failure to Determine the Appellant's Nationality

20 Under this heading it was submitted that the Tribunal erred when it concluded its review having declared itself unsatisfied that the appellant was a national of Afghanistan. It was said to have erred by failing to turn its mind to the question whether the appellant was able to obtain effective protection even if it did not accept his claim to be an Afghan national. It was said to be incumbent on the Tribunal to identify the countries to which the appellant might be removed and then to reach a view as to whether he would be returned to Afghanistan and/or could be returned to a third country without risk of persecution for a Convention reason. It was submitted that the Tribunal had asked itself a wrong question in such a way as to affect the exercise of its power. The Tribunal, it was submitted, erred by focussing solely on the question of nationality in order to determine whether the appellant was someone to whom Australia owed "protection obligations" under the Refugees Convention. The appellant's claim for refugee status was that he had a well-founded fear of persecution should he be returned to Afghanistan, he being Hazara and Shi'a and claiming to be an Afghan national and resident. The Tribunal's pre-occupation with his nationality diverted it from considering, as it should have, the questions whether irrespective of his nationality Australia owed "protection obligations" to the appellant and whether he would be refouled to Afghanistan. The appellant was entitled to the benefit of Art 33 of the Convention while the Tribunal was conducting its review. The Tribunal erred by turning the element of nationality into an ultimate question before it when that was not its task. The Tribunal had failed to determine whether the appellant had effective protection in some unidentified third country or whether he would be returned to Afghanistan by Australia or to that third country. The finding that the appellant was not an Afghan national, it was said, did not dispose of the issue arising upon a proper construction of the Convention.

21 The submission is not sustainable. The task of the Tribunal in considering an application for review in respect of the refusal of a protection visa is to determine (inter alia) whether the applicant for review satisfies the criterion for the grant of such a visa under s 36. Relevantly, s 36 provided:

"36(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

This criterion is reflected in Schedule 2 of the Migration Regulations which, pursuant to reg 2.03 sets out criteria for the grant of various classes of visa. Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas. Both include as a criterion that:

"...The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."
The primary obligation which qualifies as a protection obligation arises out of Art 33 of the Refugees Convention: see Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at 559 ("Al-Sallal") and Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 ("Applicant C"). Under that Article the contracting states undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The obligation, which is otherwise known as the prohibition against refoulement, is owed to a refugee who is defined in Art 1A(2) of the Convention as any person who:

"...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it."
Part 7 of the Migration Act, as it stood at the time relevant to this appeal, deals with the review of protection visa decisions. A decision to refuse to grant a protection visa is reviewable by the Tribunal (s 411(1)(c)). Applications for review to the Tribunal are made under s 412 of the Act and, if a valid application is so made, the Tribunal must review the decision (s 414). The powers of the Tribunal under s 415 of the Act authorise it to exercise all the powers and discretions conferred by the Act on the person who made the decision. It may affirm or vary the decision or remit the matter for reconsideration.

22 The decision with which the Tribunal is concerned in this case, is the refusal to grant a protection visa on the basis of an application made by a person who claims to have a well-founded fear of persecution for a Convention reason if he is returned to the country of his nationality, Afghanistan. That is the matter which comes before the Tribunal, by way of review, when it determines whether or not a protection visa should be granted. The Tribunal was not at large to consider and make findings relevant to the question of Australia's non-refoulement obligation under Art 33 generally when the appellant's claims or circumstances do not raise those issues: cf Applicant C. A question relating to refoulement might arise where a claim to a real chance of persecution in country A is based on a fear of refoulement by country B to country A. In that circumstance it is relevant for the Tribunal to consider whether there is a real chance that country B will return the claimant to country A: see Al-Sallal at 559.

23 The administrative arrangements that may be made by the Executive for the return of an unsuccessful applicant for a protection visa to another country will, no doubt, have to be made in accordance with Australia's international law obligations under the Refugee Convention and, in particular, by reference to Art 33. That may bring in a wider range of factual considerations than those before the Tribunal when it determines the application for a protection visa. It is not a necessary part of the Tribunal's duty, if the evidence before it and reasonable inquiry does not permit, to make a finding that an applicant is of a particular nationality or country of origin. In such a case the Tribunal is concerned to determine whether it is satisfied that the applicant's claim for a protection visa on the ground that he is a refugee as defined by Art 1A(2) of the Convention is made out: see Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104 at [12]. In this case the Tribunal has discharged its function by its rejection of the appellant's claims. It did not have to go beyond those claims. That is not to say that a positive finding of nationality or country of residence is precluded. It is not, however, mandated. The second ground of appeal would therefore fail.

24 It should be noted that counsel for the respondent objected to the inclusion of this ground in the notice of appeal on the basis of prejudice. It was contended that had this ground of appeal been introduced before the primary judge, then evidence might have been called relevant to it. The Court is unable to see what evidence would have been relevant to this ground of appeal before the primary judge. In the Court's opinion there is no prejudice to the Minister in allowing this ground of appeal to be included in the notice of appeal. In the event, the ground of appeal is unsuccessful.

Whether the Linguistic Analysis was Evidence

25 The third ground of appeal turned on the Tribunal's observation that it did not regard the report of the analysis of the appellant's language "as constituting evidence that the applicant is a national of Afghanistan". As his Honour said, the phrasing of that finding was unhappy. The report was plainly evidence relevant to the appellant's claim to be a national of Afghanistan. His Honour however was correct in characterising the observation as no more than a statement that the Tribunal had weighed the evidence provided by the linguistic analysis report together with other evidence to which it had referred in its reasons in deciding that it was not satisfied that the appellant was a national of Afghanistan. It was not a case of attributing no weight to the linguistic analysis. When the sentence is read in context of the Tribunal's reasons that characterisation was plainly correct.

Conclusion

26 For the preceding reasons the appeal should be dismissed with costs.

I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court .



Associate:

Dated: 28 March 2002




Counsel for the Appellant:
Mr D Star (Pro Bono)


Solicitor for the Appellant:

Jeremy Moore & Associates

Counsel for the Respondent:
Dr M Perry




Solicitor for the Respondent:
Sparke Helmore




Date of Hearing:
13 February 2002




Date of Judgment:
28 March 2002

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