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MIGRATION - refugees - judicial review - Refugee Review Tribunal - appellant claiming to be fleeing Taliban persecution in Afghanistan - Tribunal finds appellant not an Afghani national - no finding as to country of origin - whether Tribunal erred in law

Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCAFC

Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCAFC 10 (14 February 2002); [2002] FCA 104
Last Updated: 2 May 2002


Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCAFC 10
Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104



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

MIGRATION - refugees - judicial review - Refugee Review Tribunal - appellant claiming to be fleeing Taliban persecution in Afghanistan - Tribunal finds appellant not an Afghani national - no finding as to country of origin - whether Tribunal erred in law

Migration Act 1958 (Cth)

SYED IBRAHIM HUSSAINI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S150 OF 2001

FRENCH, MERKEL AND GYLES JJ

14 FEBRUARY 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA


SOUTH AUSTRALIA DISTRICT REGISTRY
S150 OF 2001



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

BETWEEN:
SYED IBRAHIM HUSSAINI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:
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 is to 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
S150 OF 2001



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

BETWEEN:
SYED IBRAHIM HUSSAINI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGE:
FRENCH, MERKEL AND GYLES JJ

DATE:
14 FEBRUARY 2002

PLACE:
ADELAIDE




REASONS FOR JUDGMENT
THE COURT:

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 24 January 2001. That application was refused on 30 March 2001. An application for review by the Refugee Review Tribunal ("the Tribunal") was also refused on 6 June 2001 when the Tribunal affirmed the decision not to grant a protection visa. The appellant then sought an order of review of the Tribunal's decision in this Court. On 29 August 2001, Mansfield J dismissed his application. The appellant now appeals against that decision.

The Tribunal Decision

2 The appellant claimed from the outset that he was a Shi'ite Muslim of Hazara ethnicity and a national of Afghanistan. He claimed to have been born and to have lived at Almeto Chehel Dokhtaran Jaghori in the Ghazni province of Afghanistan. This is a remote mountain region. He said he was illiterate and had no formal education. He said he had a wife and two young children and that his family still lived in Afghanistan.

3 The appellant claimed that as a Shi'ite of Hazara ethnicity he was at risk of being conscripted by the Taliban to fight and to carry out mine clearing duties by walking in front of the Taliban at gunpoint. His uncle had been taken by Taliban early in 2000 and had not been seen since. The Taliban had sought young men from his village to conscript however he had fled to the mountains and avoided them. He also claimed that Taliban prevented Shi'ite Muslims from practising their religion and that he feared returning to Afghanistan because the Taliban would select him for forcible conscription or would kill him.

4 In its reasons for decision the Tribunal referred to what it called "a number of factors which caused the Tribunal to doubt the applicant's claim to have resided in the village of Chehel Dokhtaran". The appellant was unable to describe the surrounding area in any great detail. The Tribunal referred to particular features which he was unable to identify or name. It also referred to contradictions in his various descriptions of the local geography. On the basis of those contradictions the Tribunal said that it was "...not satisfied that the applicant was a resident of the village of Chehel Dokhtaran".

5 The Tribunal also said it was left with doubts as to the genuineness of the appellant's story. It referred to his claim that his uncle had been abducted six months prior to his arrival in Australia and that the Taliban had come to his home four months previously. This, it was said, placed a gap of about two months between the events. At the hearing before the Tribunal he said however that the two events were only a few days apart. The Tribunal rejected his suggestion that this was due to a translation error in his original statement.

6 The Tribunal also referred to evidence of language analysis carried out of the appellant's speech patterns. It accepted that the analyst consulted by the Department was qualified to comment on and draw conclusions from the appellant's speech patterns. The analyst's observation that the appellant's dialect/language originated from the Quetta region of Pakistan was said to have been made "with considerable certainty". The use of these words by the analyst indicated that his conclusion was at the strongest out of four possible levels. Independent evidence also indicated that the Pakistani accent of Hazaragi was greatly influenced by Urdu and English and very different from that of Hazaras from the Hazarajat in Afghanistan. The Tribunal then said:

"Given the Tribunal's doubts about the applicant's claims, and the analyst's strong conclusion that the applicant's origins are in Pakistan, not Afghanistan, the Tribunal is not satisfied that the applicant is a citizen of Afghanistan. It follows that the Tribunal cannot be satisfied that the applicant has a well-founded fear of persecution in that country. As he has made no claims about persecution in any other country, the Tribunal is not satisfied that he has a well-founded fear of persecution for a Convention reason."
The Trial Judge's Decision

7 In his reasons for judgment, Mansfield J noted that the appellant had not identified any ground of review referrable to s 476(1) of the Act but that his application suggested that he wished the Court to reconsider, on the merits, his claim as a refugee. As his Honour pointed out, that is not the Court's function. In the oral submissions which he put to Mansfield J, the appellant also sought to reargue those matters which had been put on his behalf in the Tribunal. His Honour referred to the various matters put by the appellant but concluded that the Tribunal was not shown to have erred in any way reviewable under s 476(1) of the Migration Act 1958 (Cth). On that basis the application was dismissed.

The Grounds of Appeal

8 The appellant represented himself before his Honour, but on the appeal was represented on a pro bono basis by Mr R Niall. An amended notice of appeal was filed prior to the hearing and leave to amend the grounds granted. This resulted in there being one ground of appeal in the following terms:

"1. The trial Judge erred by failing to hold that the RRT erred so as to give rise to a ground of review under s 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; and

(b) by failing to determine if the appellant had a nationality, its identity and whether the appellant could obtain effective protection from that country."

The Contentions

9 In support of the amended grounds of appeal it was submitted that the appellant had claimed a risk of persecution on account of his ethnicity and religion. The Tribunal apparently accepted that Afghani Hazaras are persecuted by the Taliban. There was nothing to suggest that persecution of Hazaras was limited to any particular part or region of Afghanistan. After referring to the salient findings in the Tribunal's reasons, counsel for the appellant contended that as a matter of fact and logic the linguistic evidence in the case said nothing about the citizenship of the appellant. Indeed the expert evidence was expressly made subject to the caveat that the analyst did not comment on whether the subjects of their consideration are citizens or non-nationals with residency rights in a particular country.

10 The ultimate conclusion that the Tribunal could not be satisfied that the appellant had a well-founded fear of persecution in Afghanistan did not follow from the finding as to citizenship. Absent a finding that the appellant held citizenship or enjoyed the effective protection of an identified third country the Tribunal, it was said, did not dispose of the claims because it made no finding on the chance of persecution in Afghanistan irrespective of the appellant's nationality. A finding by the Tribunal that the appellant was not a national of Afghanistan did not in the circumstances foreclose the chance that he might be sent there. The circumstances that gave rise to the issue included the fact that he claimed to be from Afghanistan, claimed to be both Hazara and Shi'ite and had not been found to be a national of any other country. On this basis it was said the Tribunal did not properly determine the question whether Australia owed protection obligations to the appellant. It did not do so because it asked itself the wrong question, namely, "is the appellant a citizen of Afghanistan?". That question, it was said, was no doubt a relevant question but its answer could not alone determine the application made by the appellant.

Whether the Tribunal Erred

11 In our opinion there is no error of law disclosed in the Tribunal's reasons. The appellant put his claim on the basis that he was of Hazara ethnicity, Shi'ite religion, and a resident of a village called Chehel Dokhtaran in the Ghazni province of Afghanistan and that he had left that village following his uncle's abduction by the Taliban. The Tribunal found as a matter of fact that it was not satisfied that he was a resident of the village of Chehel Dokhtaran. It was left "with doubts as to the genuineness of the applicant's story". In content, although expressed in terms of doubt, this does appear to be a rejection of the appellant's claim that his uncle had been abducted from that village.

12 The language analyst's evidence was really directed to the question of "national origin" in the sense of residency rather than in the sense of formal citizenship. Having regard to the discussion of the evidence by the Tribunal, although the Tribunal expressed its findings in terms of citizenship it was plainly also directed to residency which was the underlying factual question addressed by the language analyst's evidence and to which its consideration of the credibility of the appellant's evidence was directed. On a reading of the Tribunal's reasons it has, in effect, found that the appellant has not made out his claims to be a resident of Afghanistan fleeing from Taliban persecution. The Tribunal is not obliged to make any positive finding as to the appellant's nationality or country of origin. It is concerned to determine whether the appellant's claim for a protection visa on the ground that he is a refugee as defined by Art 1(A) of the Convention is made out.

13 In its reasons the Tribunal rejected the appellant's claims in respect of his nationality and residence in Afghanistan. It concluded that, as he had made no claims about persecution in any other country, it was not satisfied that he had a well-founded fear of persecution for a Convention reason. In these circumstances no question under Art 33 arose for its consideration.

Conclusion

14 For the preceding reasons the appeal will be dismissed with costs.


I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: February 2002







Solicitor for the Appellant:
Mr R Niall (Pro Bono)




Counsel for the Respondent:
Dr M Perry




Solicitor for the Respondent:
Sparke Helmore




Date of Hearing:
14 February 2002




Date of Judgment:
14 February 2002

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