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MIGRATION - Review of decision of the Refugee Review Tribunal - no jurisdictional error - application dismissed.

VGAF v Minister for Immigration [2003] FMCA 260 (5 June 2003)

VGAF v Minister for Immigration [2003] FMCA 260 (5 June 2003) Last Updated: 1 August 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA VGAF v MINISTER FOR IMMIGRATION [2003] FMCA 260 MIGRATION - Review of decision of the Refugee Review Tribunal - no jurisdictional error - application dismissed. Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) S157/2002 v the Commonwealth of Australia (2003) HCA 2 Craig v South Australia [1995] 184 CLR 163 Minister for Immigration, Multicultural and Indigenous Affairs v Yusuf [2001] 180 ALR 1 Minister for Immigration, Multicultural and Indigenous Affairs v Eshetu [1999] 197 CLR 611 R v Hickman; Ex parte Fox v Clinton [1945] 70 CLR 594 Applicant: VGAF Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: MZ1011 of 2002 Delivered on: 5 June 2003 Delivered at: Melbourne Hearing Date: 5 June 2003 Judgment of: Hartnett FM REPRESENTATION The Applicant: Appeared on his own behalf Counsel for the Respondent: Ms Riley Solicitors for the Respondent: Clayton Utz ORDERS THE COURT DECLARES THAT: (1) The application is dismissed. (2) The applicant pay the respondent's costs fixed in the sum of $4,000.00. (3) It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE MZ 1011 of 2002 VGAF Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT 1. This is an ex tempore judgment. The applicant filed an application to review a decision of the Refugee Review Tribunal (RRT) made on 10 July 2002 pursuant to section 475A of the Migration Act 1958 (Cth) and section 39B of the Judiciary Act 1903 (Cth). That application was filed on 15 August 2002. 2. The grounds of review were as set out under the heading Grounds of Review in that application and I shall not further detail them here. The grounds were as set out in paragraphs 1, 2 and 3 of the application. An amended application was filed by the applicant on 12 March 2003. There were no amendments to the grounds relied upon, rather the grounds stated in the statement of claim previously filed were relied upon with the applicant seeking a writ of prohibition, an injunction a writ of certiorari and a writ of mandamus. 3. In addition, the applicant relied upon handwritten notes collated by him commencing "To whom this may concern" and dated and filed 4 June 2003. They were effectively in the nature of contentions. I included them as material which the applicant wished to rely upon. There was no objection by the respondent. There was also on the court file a document entitled Contentions of Fact and Law filed 26 March 2003 and seemingly in this matter in that the applicant was named VGAF of 2002 and the respondent was the Minister. However, those contentions did not relate to the matter before me. 4. The applicant also sought to rely on a bundle of documents which he had served on the respondent which were documents from various persons and being certified by an accredited professional translator/ interpreter in the Turkish language. Such documents were not before the Refugee Review Tribunal. The respondent objected to the applicant including same as evidence in these proceedings on the basis that such material was not before the Tribunal and was an attempt by the applicant to introduce fresh evidence. There was no basis for the introduction of that evidence. I indicated to the applicant that he could not rely upon same. 5. I also at the outset indicated that the court book which had been filed by the respondent was not contained in the file. I was provided with a copy from the respondent. The Refugee Review Tribunal decision of 10 July 2002 was contained in the file and I had had an opportunity to read that prior to the commencement of the proceedings. 6. The matter was stood down briefly while the applicant read the respondent's contentions with the assistance of the interpreter and during that period of time the respondent's counsel Ms Riley was able to read the additional material sought to be relied upon by the applicant and I was able to read the balance of the court book. 7. The matter then proceeded with the applicant being a litigant in person assisted by an interpreter in the Turkish language. The respondent was represented by counsel, Ms Riley. The applicant had had the assistance of pro bono counsel in the preparation of the matter, but that counsel was not available to him on the hearing of the matter. Accordingly, the applicant appeared for himself. The applicant indicated in the document on which he sought to rely and indeed did rely, being the document filed 4 June 2003, that he had applied to Legal Aid to look after his case; that they brought his case up to some stage - ...after that they stopped to help us because they believed the file hasn't got any hope. So I have to defend myself during the court hearing. History 8. The applicant is a Turkish national who was born on 24 April 1954. He arrived in Australia on 11 September 2001 with his wife and son on tourist visas. On 15 October 2001 he lodged an application for a protection visa in which the husband and son made claims of their own and the wife was included as a family member. On 3 April 2002 a delegate of the Minister refused that application. On 11 April 2002 application was made to the Refugee Review Tribunal for review of that decision. The Tribunal affirmed the delegate's decision on 11 July 2002. 9. The Tribunal hearing was held on 28 May 2002. The applicant was accompanied by his migration adviser, his spouse and son. The applicant relied on written statements and submissions and he provided oral evidence at the hearing. 10. The application for review of the Tribunal's decision was filed by the applicant on 15 August 2002. It was made by the husband/father only. The application does not include the son in his own right. The application was made to the Federal Court, but was transferred to this court for hearing. 11. The applicant is of Kurdish ethnicity and of the Alevi religion (CB 11). He stated in a statutory declaration (CB 46) lodged with his initial application and as concisely set out by the respondent that: i) He was born in Tunceli, also known as Duersim or Duersin. ii) The Turkish army massacred tens of thousands of people in Duersin in 1938. The applicant's grandfather's five brothers were killed. iii) Kurds, particularly from Duersin, are under continuous pressure from the Turkish government. iv) The applicant finished high school, did his military service and then joined the police force. During his initial interview he was asked if was Turkish, Kurdish, Alevi or Sinai. He said he was Kurdish and Alevi. He promised that his religion and ethnicity would not affect his job and he then became a police officer. v) On 3 January 1983 the special investigation office came to the applicant's home, took his brother away and searched the house. vi) The brother was questioned about whether the applicant had anything to do with the left wing. The brother was imprisoned for five years and then released. The applicant claimed his brother was interrogated about the applicant's connection with left-wing parties but told police he, the applicant, had no connection and just let him live there while he was studying. vii) The applicant was transferred to Konya. He sat a course for promotion to senior constable. Promotion was generally automatic. About 700 people were promoted, but the applicant was not. At an interview the applicant was questioned about his relatives' political activities. He was rejected because of those activities and because he was Kurdish and Alevi from Tunceli. viii) The applicant complained to a court about his lack of promotion but was told it was for political reasons and the court could do nothing about it. When the applicant's sergeant found out that he the applicant had complained he was transferred to Urfa in southern Turkey. ix) The applicant worked in Urfa from 1986 to 1989. In that region there were fanatical Turkish nationalist groups and fanatical Islamic groups. They went into Kurdish people's houses at night and physically abused the young and old, women and children. The applicant warned the groups that what they were doing was not fair. They told the applicant to keep quiet and threatened him. The applicant had no choice but to keep quiet. Because of this the applicant was transferred in 1989 to Istanbul. x) Whilst in Istanbul the applicant was the recipient of numerous threatening phone calls and letters. xi) In 1994 the applicant took annual leave and visited his father in Tunceli. While he was visiting other relatives some people with guns asked the father, "Where is your son?" and twisted his arm. The father said the applicant was in the next town, but did not say which town. The father went to the applicant early next morning and told him to leave town and continue his holiday in Istanbul. The applicant believed the people were from the military or the police and that they intended to harm the applicant. xii) On 24 October 1994 the applicant was hit by a car which drove off. The applicant claimed that he was the target of a hit and run near his police station perpetrated by members of the secret police. xiii) In late 1996 the applicant's nephew and the nephew's wife were detained for association with a left-wing party and imprisoned. The applicant's sergeant told the applicant he should resign. The applicant continued to receive threatening phone calls and was pressured to resign or take early retirement. xiv) At school the applicant's two sons pretended not to be Kurdish and pretended to fast during Ramadan. The applicant was afraid of walking the streets at night and would not let his children out after 7 pm. The threats continued. xv) The applicant's cousin who visited Turkey as part of a Kurdish peace delegation was imprisoned. The applicant's superiors knew the applicant was related to this person. xvi) In November 2000 the applicant claimed one of his sons disappeared whilst going to the milk bar. The applicant felt he could not report the matter because he believed it would cause a problem which might compromise his escape from Turkey. The applicant did not even tell his neighbours. xvii) The applicant began making plans to leave Turkey for good. He obtained passports in January 2001 for himself and his wife. xviii) The applicant's imprisoned nephew and his wife began a hunger strike. It was reported in the international media. The applicant's sergeant told the applicant to persuade his nephew to stop fasting. The applicant visited his nephew. He said he would continue to strike. The applicant told the sergeant this. The applicant was then transferred to Izmir and was forced to resign. xix) After 20 days in Izmir the applicant resigned. In June 2001 he obtained a passport for his remaining son. In August 2001 the family were given visitor visas and they travelled to Australia on 10 September 2001. xx) If the applicant is to return to Turkey he claims the authorities may be concerned that he has damaged Turkey's reputation by revealing what he knows about Turkey's violation of human rights or even by applying for refugee status. 12. At the hearing before the RRT the applicant said, amongst other things, that (a) he did not follow Alevi culture in Turkey and often joined his Sunni colleagues at the mosque to disguise his true religion. His son did not know he was an Alevi Kurd until they came to Australia (CB 128); (b) he does not know why his other son left. He was depressed and did not have much of a life (CB 129); (c) after his retirement the applicant was asked to participate in surveillance activities. He said he would discuss the matter at a later date (CB 135); (d) he was interrogated about his relatives' associations with left-wing parties but was cleared of any left-wing associations (CB 134-138). Refuge Review Tribunal hearing As accurately summarised by Counsel for the respondent:- 13. The RRT accepted that the applicant was a national of Turkey, Kurdish and Alevi and that he had been a policeman for 25 years. The Tribunal accepted that the applicants were outside their country of nationality. The Tribunal considered that although the applicant might not have been promoted as he desired he was able to pursue his livelihood without encountering any discrimination on account of his ethnicity or religion serious enough to constitute persecution. 14. The Tribunal accepted that the applicant received threats, but considered that these were most likely an occupational hazard of being a policeman and noted that none of the threats were implemented. The Tribunal considered that the applicant had State protection available to him notwithstanding that he was an Alevi Kurd. The Tribunal noted his claims that he tried to keep his ethnicity and religion a secret and that such claims were at odds with his claim that he disclosed these matters at initial interview to join the police force and further at odds with his claim that he was subsequently discriminated against because of his religion and ethnicity. 15. The Tribunal considered that the claim that secret agents had tried to run him down in a hit run was unfounded speculation. The Tribunal was not satisfied this incident was indicative of persecution for a Convention reason. 16. The Tribunal accepted that some of the applicant's relatives were associated with left-wing parties and that the applicant was interrogated about these matters and cleared of any left-wing connections. The tribunal noted that the applicant retired with a pension and was issued with a government passport and permitted to leave the country. The Tribunal considered that if the applicant had been of adverse interest to the authorities he would not have been allowed to leave the country. In the circumstances, the Tribunal considered the applicant, although a Kurd and Alevi and a person with some left-wing relatives, was of no adverse interest to the authorities when he left Turkey. 17. The Tribunal noted the evidence that the applicant's son was depressed and concluded that he most likely decided to leave home and that is why his disappearance was not reported. The Tribunal was not satisfied that the son was kidnapped for any reason relating to the Convention. 18. In relation to the applicant's claims that he faces persecution because he is Kurdish and Alevi, the Tribunal had regard to country information that it had available to it. The Tribunal in its reasons included significant country information which went to the Tribunal's consideration that Kurds are no longer at risk. It noted country information to the effect that a former Deputy Prime Minister was Kurdish and 25 per cent of deputies and other government officials claim a Kurdish background. The tribunal noted the applicant was cleared of any association with left-wing or other dissident groups and was not persecuted for being a Kurd. 19. The Tribunal noted the applicant did not follow the Alevi religious and cultural practices and noted that the applicant's claims did not disclose that the applicant or his family members were harassed because of their religion. The Tribunal noted on the basis of country information that the position of Alevis had improved considerably in recent time and concluded that there was not a real chance that the applicant would face persecution for reason of being Alevi. 20. Finally, the Tribunal considered that the applicant did not have any well-founded fears of persecution when he left Turkey. In relation to the claim that his claim for asylum might be discovered and he might be suspected of disclosing confidential information or criticising the government, the Tribunal noted that the claim for asylum was confidential so that it was unlikely to come to the attention of the Turkish authorities. The Tribunal also relied upon country information to the effect that people deported back to Turkey were usually not followed up unless they were for some reason known to the police. The Tribunal concluded that the applicant had a valid Turkish passport; had left Turkey legally and that there was not a real chance he would be imputed with any adverse political opinion should he return to Turkey. Legislative structure 21. The prescribed criteria for the grant of a protection visa are set out in Subclass 866 of schedule 2 of the Migration Regulations 1994. One of the criteria is that at the time of application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention. It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention. 22. For the purposes of this application and subject to some qualifications introduced under sections 91R and 91S of the Act, Australia has protection obligations to the applicant if he demonstrates that he is a person who is a refugee as defined in the Refugees Convention as amended by the Refugees Protocol in that he: Owing to a 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, is unable or, owing to such fear, is unwilling to return to it. 23. The present application is affected by the privative clause contained in section 474 of the Act. 24. Following the High Court decision in S157/2002 v the Commonwealth of Australia (2003) HCA 2, I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under section 39B of the Judiciary Act 1903 (Cth) notwithstanding section 474 of the Act. 25. On 4 February 2003 the High Court gave judgment in S157/2002 v The Commonwealth of Australia. The High Court determined that the privative clause provision in section 474(1) of the Act properly construed is a valid enactment. It found the proper construction of the Act, including section 474, imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority (see per Gleeson CJ at 37-38, Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 83 and per Callinan J at 160). 26. An administrative Tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or in some circumstances makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal's power (Craig v South Australia [1995] 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive. Those different kinds of error may well overlap (see Minister for Immigration, Multicultural and Indigenous Affairs v Yusuf [2001] 180 ALR 1 at 21). Consideration 27. The RRT is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretions that are conferred by the Act; that is, to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Division 3, Subdivision AB of the Act. 28. It is matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration, Multicultural and Indigenous Affairs v Eshetu [1999] 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant. 29. The Tribunal considered the arguments put by the applicant and also considered country information that was in its possession and which it particularised in respect of the applicant himself and those claims made by the applicant. The Tribunal came to a conclusion that the applicant did not have a well-founded fear of persecution for Convention reasons, although that is a conclusion with which the applicant disagrees. It is not for this court to review the merits of the Tribunal's decision, nor to substitute for the Tribunal's views of the evidence before it this court's view. Questions of fact and degree are a matter for the Tribunal. As part of its fact-finding function, the Tribunal was entitled to prefer objectively sourced material to the evidence of the applicant. In doing so it did not commit jurisdictional error as suggested by the applicant. 30. There is no arguable jurisdictional error in the Tribunal's decision. The Tribunal's decision is a privative clause decision for the purposes of section 474(1) of the Act. The decision did relate to the subject matter of the Act and was reasonably capable of reference to the power. It was a bona fide attempt by the decision-maker to exercise the power which the Act reposes in such decision-maker (see R v Hickman; Ex parte Fox v Clinton [1945] 70 CLR 594). 31. There is no indication in this case of bad faith or bias on the Tribunal's part. Bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond errors of fact or law. There is nothing to suggest that the Tribunal failed to comply with the statutory or common law requirements concerning procedural fairness, nor is there anything to suggest that the tribunal ignored relevant material or asked the wrong question. The decision is a reasonable exercise of the power given to the tribunal. I can find no jurisdictional error of law attending it. I shall dismiss the application and order that the applicant pay the respondent's costs. I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Hartnett FM Deputy Associate: T A Jones Date:
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