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MIGRATION - applicant claims to have a well-founded fear of persecution - the Tribunal rejected the claim - no reviewable error

Mohnsen v Minister for Immigration & Multicultural Affairs [2002] FCAFC 8 (

Mohnsen v Minister for Immigration & Multicultural Affairs [2002] FCAFC 8 (14 February 2002); [2002] FCA 99
Last Updated: 30 April 2002


Mohnsen v Minister for Immigration & Multicultural Affairs [2002] FCAFC 8
Mohnsen v Minister for Immigration & Multicultural Affairs [2002] FCA 99



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
Mohnsen v Minister for Immigration & Multicultural Affairs [2002] FCA 99


MIGRATION - applicant claims to have a well-founded fear of persecution - the Tribunal rejected the claim - no reviewable error

Migration Act 1958 (Cth) - ss 476(1)

ALI MOHSEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S166 OF 2001

JUDGES: FRENCH, MERKEL AND GYLES JJ

DATE: 14 FEBRUARY 2002

PLACE: ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S166 OF 2001



BETWEEN:
ALI MOHSEN

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
FRENCH, MERKEL AND GYLES JJ

DATE OF ORDER:
14 FEBRUARY 2002

WHERE MADE:
ADELAIDE



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's taxed costs of and incidental to 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
S166 OF 2001



BETWEEN:
ALI MOHSEN

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
FRENCH, MERKEL AND GYLES JJ

DATE:
14 FEBRUARY 2002

PLACE:
ADELAIDE




REASONS FOR JUDGMENT
THE COURT:

1 The appellant has appealed against a decision of the primary judge (Mansfield J) dismissing his application to review a decision of the Refugee Review Tribunal ("the RRT"), which affirmed a decision by the delegate of the respondent not to grant a protection visa to the appellant.

2 The appellant applied for the protection visa on the ground that he is a refugee as defined in Art 1A(2) of the Refugees Convention as amended by the Refugee Protocol ("the Convention") as he has a well-founded fear of persecution if he were to return to Afghanistan, his alleged country of nationality.

3 The primary judge summarised the appellant's claims as follows:

"The applicant claimed to be a citizen of Afghanistan, born in Ghouch, Bulu, Orozgan Province in Afghanistan. He claimed that his religion was Shi'a Muslim, and his ethnic group was Hazara. He said he had had no schooling, and was illiterate. From a young age he had worked as a shepherd. He is a single man, with four siblings, and his family remains in Afghanistan.

The applicant claimed that he left Afghanistan because he was at risk of being taken by the Taliban to the front to fight. He opposed fighting for the Taliban, and did not wish to be forcibly conscripted. He feared that if he was returned to Afghanistan, his life would be at risk because the Taliban would forcibly conscript him. He also complained that the Taliban banned Hazaras from practising their religion and threatened to kill them if they did not obey. He said his uncle was a Commander in the Hezb-I-Wahdat Party, and he had been killed by the Taliban three years ago."

4 His Honour summarised the RRT's decision as follows:

"The Tribunal, after considering all the evidence, accepted that the applicant was Hazara and was a Shi'a Muslim. It noted independent country information indicating that there were significant Hazaran communities outside Afghanistan, including large numbers of Hazaras living in Pakistan. After considering all the evidence, the Tribunal rejected the applicant's claim to the visa because it was not satisfied that he was a citizen of Afghanistan at all, or that he had lived in Afghanistan as he claimed all his life prior to his departure to Australia. It had reached that decision, upon the whole of the evidence, for a number of reasons which it has identified. Those reasons included :

* that the applicant gave inconsistent accounts about the location of the village in which he claimed to have lived and the places he had visited in Afghanistan;

* that the applicant's knowledge of places and events in Afghanistan was very limited;

* that the applicant had no knowledge of the Afghan calendar;

* that the applicant did not know basic information such as the capital of his province, dates in the Afghan calendar including his own date of birth or important events in the history of Hazaran people;

* that the applicant had little or no knowledge of changes in Afghanistan implemented by the Taliban, and said in particular that there had been no changes affecting his mother or sister in Afghanistan notwithstanding independent country information of significant restrictions on women introduced by the Taliban; and

* that the route the applicant claimed he took when fleeing from Afghanistan was implausible.

For those reasons, the Tribunal concluded :

`Taking into account the inconsistencies in the applicant's description of the place he claims to have lived all his life, his limited knowledge of places and events in Afghanistan, his inability to identify any of the restrictions imposed on women by the Taliban, and the implausibility of his claimed route out of Afghanistan, the Tribunal finds that the applicant is not from Afghanistan and has not lived there all his life until he came to Australia.
As the Tribunal does not accept that the applicant is from Afghanistan, it does not accept his claims that his uncle was killed by the Taliban or that his father decided he should leave Afghanistan to avoid being harmed by the Taliban. The Tribunal finds that the applicant has fabricated these claims to make a case for claiming to be a refugee.'

Having reached those conclusions adverse to the applicant's claim the Tribunal also referred to linguistic analysis available to it which reported, upon analysis of the applicant's speech, that he "is most probably using an accent occurring in Pakistan". It regarded the linguistic evidence as supporting its conclusion that the applicant was not from Afghanistan as he claimed. It also added :

`... The Tribunal also agrees with the point made by the applicant that `Khan' is a name which is found in Afghanistan as well as Pakistan (the current education minister in the Taliban government is Amir Khan Muttaqi (Reuters Business Briefing, 2 April 2001 CS51609), and previous rulers of Afghanistan have been Habibullah Khan and Dost Mohammad Khan, to name two examples). ...'
Consequently, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and so he did not satisfy the criterion set out in s 36(2) of the Act for the grant of the visa."

5 The appellant represented himself before the primary judge and, rather than identifying expressly a ground of review under s 476(1) of the Migration Act 1958 (Cth) ("the Act"), he largely repeated his claims to refugee status. Nonetheless, his Honour carefully considered the reasons of the RRT and found no reviewable error.

6 The primary judge discerned from the appellant's complaints that the RRT might have erred in attributing to him that his father's name ends with "Khan". His Honour considered whether that matter enlivened the "no evidence" ground under s 476(1)(g) and 4(b) of the Migration Act 1958 (Cth) and concluded that it did not.

7 The primary judge concluded:

"There is nothing in the Tribunal's reasons to indicate that it did not properly apply the law, and in my judgment it is shown to have considered and addressed the concerns of the applicant if he were to return to Afghanistan, and to have understood the nature of the evidence he gave to it concerning those concerns and to have dealt with those concerns in its reasons.

Accordingly, in my judgment, the Tribunal is not shown to have fallen into reviewable error. I consider that the application should be dismissed."

8 The appellant was again not represented on the appeal. The notice of appeal prepared by him appears to have stated his grounds as:

[Yuml] lack of adequate time for interpretation to occur;

[Yuml] the RRT, having accepted he was a Hazara and a Sh'ia Muslim, should not have found he was not from Afghanistan in the absence of proof that he was from another country and given that no other country had a native local Hazara ethnicity.

9 Before the Full Court the appellant, in substance, complained that the RRT reached wrong conclusions on the merits of his case. As was pointed out to the appellant by the primary judge, the statutory judicial review process under Pt 8 of the Act does not permit the RRT decision to be reviewed by the Court on its merits. Thus, the review on the merits that is being sought by the appellant is not available to him.

10 The RRT is required to determine the subjective fear claimed to be held by an applicant and whether, objectively, that fear is well-founded. As was observed in Abebe v The Commonwealth (1999) 197 CLR 510 at [187] by Gummow and Hayne JJ the RRT's function is to decide whether an applicant's claim is made out. In the present case the RRT's rejection of the appellant's claim, which necessarily involved a finding that he does not have a genuine fear of persecution for a Convention reason, was determinative of his case. We have carefully considered the reasons of the RRT and, as was explained in the reasons of the primary judge, no reviewable error is apparent.

11 The appellant's complaint about an interpreter was not expanded upon by the appellant at the hearing. He did, however, complain that the RRT member conducting the hearing indicated to him that she did not believe him. Clearly, in some circumstances a member will, in fairness, put his or her concerns as to credibility matters to an applicant in order to give that applicant an opportunity to respond to those concerns. The evidence before us does not disclose any conduct on the part of the RRT member in the present matter that would constitute a ground for judicial review. As was pointed out by the primary judge, there is nothing in the material that suggests the RRT did not conduct the hearing provided for under the Act in accordance with the requirements of s 425.

12 In summary the RRT, as the arbiter of fact, based its decision essentially on an adverse finding as to credibility. The finding was reasonably open to it on the evidence and was arrived at after the RRT considered matters that were logically probative of the appellant's credibility.

13 Accordingly, for the above reasons, the appeal is to be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Merkel and Gyles.



Associate:

Dated: 14 February 2002

For the Applicant:
Appeared in person




Counsel for the Respondent:
Dr Melissa Perry




Solicitor for the Respondent:
Sparke Helmore




Date of Hearing:
14 February 2002




Date of Judgment:
14 February 2002

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