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MIGRATION - Refugee Review Tribunal - whether Tribunal failed to consider relevant issues - whether claimed that ground for refugee visa made before Tribunal.

MZKAM v Minister for Immigration [2004] FMCA 785 (12 November 2004)

MZKAM v Minister for Immigration [2004] FMCA 785 (12 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZKAM v MINISTER FOR IMMIGRATION
[2004] FMCA 785




MIGRATION - Refugee Review Tribunal - whether Tribunal failed to consider relevant issues - whether claimed that ground for refugee visa made before Tribunal.




Judiciary Act 1908 (Cth), s.39B

Migration Act 1958 (Cth), s.474(2)

Re Minister for Immigration and Multicultural and Indigenous Affairs;Ex parte Applicants S134/2002 [2003] HCA

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [82]

Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697

Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116

SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC] 80

VGAO of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 68

Parra v Minister for Immigration and Multicultural Affairs [2000] FCA 85

Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156 at [38]

Minister for Immigration and Multicultural affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407, [65]

Applicant:
MZKAM




Respondent:


MINISTER FORIMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 1156 of 2002




Delivered on:


12 November 2004




Amended Judgment:


24 November 2004




Delivered at:


Melbourne




Hearing date:


8 August 2003




Judgment of:


Phipps FM



REPRESENTATION

Counsel for the Applicant:


Mr Krohn




Solicitors for the Applicant:


Erskine Rodan & Associates




Counsel for the Respondent:


Mr Fairfield




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The application is dismissed.

(2) The Applicant pay the Respondent's costs fixed at $6,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 1156 of 2002

MZKAM



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant seeks review pursuant to s.39B of the Judiciary Act 1908 (Cth) of a decision of the Refugee Review Tribunal which affirmed a decision of a Delegate of the respondent not to grant a protection visa.

2. The applicant arrived in Australia on 14 April 2001 as the holder of a visitor's visa. On 25 May 2001, he applied for a protection visa. On

27 February 2002, a Delegate of the respondent refused the application.

3. On 20 March 2002, the applicant applied to the Tribunal for review of the Delegate's decision. On 18 October 2002, the Tribunal affirmed the decision of the Delegate.

4. The applicant is an ethnic Kurdish and a national of Turkey. He claimed that he had a fear of persecution because he is an Alevi Kurd and because of a political opinion imputed to him by reason of his association with a member of a banned political organisation. That person, known as B, was also claimed to be a relative of the applicant.

5. He claimed that he had been mistreated at school and expelled because he had a banned magazine. He claimed that he had been detained and mistreated in 1995 during a raid on a house, which he said he had shared with a friend in G. He claimed that he was released after three days and that he then returned to his home town, P, a predominantly Turkish town, where he was kept under surveillance.

6. He joined the army in 1996 and after completing his national service in early 1998 he returned to P. He claimed that at this time he discovered that B had been killed. He claimed that a month after his death, he went to collect his body in Adana. He claimed that after showing identification to the police, he was detained and mistreated. He claimed that during his detention, the police told him that they had found his name in a notebook on B's body. He claimed he was released after a week.

7. After his release, he returned to P where after two days he was detained overnight by local police who again asked him about B. After his release, he remained in P where he got married in July 1998. After a further six months or so, he moved to M for work. He claimed that he took part in a May Day protest in M in 1999 and that he ran away when police dispersed the protesters. He claimed supporters of B were arrested. He claimed that someone had told the police that the applicant had participated in that May Day Rally.

8. He went to Cyprus in June 1999. His child was born while he was in Cyprus. He has not seen the child. His passport had been issued in 1994 and was renewed in March 2001. He departed Turkey, travelling from Cyprus back to M and then to Istanbul where he departed from the international airport. He arrived in Australia on 14 April 2001. He claimed that he had been summonsed to court in Turkey. He relied upon documents including three "subpoenas" and an original arrest warrant. They referred to offences allegedly committed in 1998 in A.

The Tribunal's findings

9. The Tribunal accepted that the applicant was a national of Turkey. The applicant's evidence at the hearing was that he did not practise as an Alevi (he described himself as an atheist). The Tribunal reviewed some reports concerning the situation of Alevis in Turkey and concluded that there was not a real chance he faced persecution for reasons related to being an Alevi.

10. The Tribunal then considered the applicant's claimed fear of persecution by reason of being Kurdish and by reason of his imputed association with B.

11. The Tribunal said that it was apparent that Turkey has a bad human rights record and that human rights abuses still occur in Turkey. It said that the materials it had reviewed suggested that some people who are actually imprisoned are at risk of torture and officials sometimes act with impunity. The Tribunal went on to say that there had been a significant improvement in the human rights of Kurds in Turkey.

12. The Tribunal accepted the applicant was mistreated at school and expelled because he had a banned magazine. The Tribunal accepted that he was detained during a raid in 1995. The Tribunal accepted that the applicant was mistreated during the period of detention and accepted that local officials kept him under surveillance in his home town. The Tribunal said it considered that this was plausible given the concern in Turkey about Kurdish terrorism and the fact that the applicant was a Kurd.

13. The Tribunal found that the applicant was not harassed during the next year after that and not harassed as a Kurdish activist while in the army.

14. In relation to the applicant's association with B, the Tribunal found that because of inconsistencies in the applicant's evidence, it did not accept that the applicant had gone to A with B's family to collect his body, that he had been asked to produce identification in A, that he had been arrested, detained and mistreated in A or that he had been detained again upon his return to P.

15. The Tribunal accepted that it was plausible that the applicant took part in a May Day protest in M in 1999 and that he had run away when police dispersed the protesters. The Tribunal considered it plausible that someone told the police that the applicant had participated in that May Day rally.

16. The Tribunal, for reasons of inconsistencies in documents offered as evidence of court proceedings, rejected those documents as genuine.

17. The Tribunal concluded that the applicant did not have a well founded fear of persecution if he returned to Turkey.

18. The Tribunal accepted that the applicant had been involved in Turkish cultural activities in Australia, but did not consider this a matter that would give rise to him having a well founded fear of persecution.

19. Finally, the Tribunal said that if the applicant remained anxious about returning to P, it was reasonable for him to relocate to northern Cyprus, G or Istanbul.

The applicant's arguments

20. The applicant alleged jurisdictional error by the Tribunal because it either failed to have regard to a number of relevant considerations, or misconceived the correct test to be applied. They are:

i) Given that the Tribunal had accepted that the applicant was detained and tortured in 1995 and that the Tribunal accepted that there was continuing abuse of human rights in Turkey, whether the applicant might be again detained and persecuted by further interrogation and torture because of his Kurdish cultural connections;

ii) whether the applicant remained at risk because of his name being in B's notebook, a claim made and not rejected by the Tribunal;

iii) the conclusions to be drawn from the applicant's claim to have left his pregnant wife through fear, as a result of which he had not seen her again, he had never seen his child, and his wife commenced divorce proceedings against him;

iv) whether the applicant would be at risk of persecution upon return to Turkey, if he again engaged in Kurdish activities or attended such things as the May Day rally. The Tribunal accepted that the applicant may have participated in such a demonstration, apparently was prepared to accept that some of the others in the rally were arrested, and apparently prepared to accept that those who are arrested are at risk of persecution by abuses perpetrated by officials.

Discussion

21. Failure to deal with a real issue central to an applicant's claim can amount to jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [82] The High Court said:

"It is necessary, however, to understand what is meant by `jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.

`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." [citation omitted]

22. In Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697, the Full Court of the Federal Court consisting of Kiefel, North and Mansfield JJ considered authorities on what is a material question of fact and said that [14];

For the purpose of this line of authority, a material question of fact has been seen as one which is:

* a substantial issue on which the case turns;

* a key element of the applicant's case;

* the foundation of the applicant's contention;

* a matter central to the application;

* a matter having obvious relevance to the question whether the applicant has a fear of persecution;

* a matter capable of supporting in a significant way the claim of the applicant.

23. It is clear that an error of this type is a jurisdictional error and is not "a privative clause decision" protected by s.474 (2) of the Migration Act 1958 (Cth). See, for instance Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC] 80.

24. Mr Fairfield, who appeared for the respondent, submitted that the first and fourth complaints made on behalf of the applicant against the Tribunal's decision involved saying that the applicant might be politically active if he returned to Turkey, and that he might be persecuted for that reason. Mr Fairfield submitted that this was not a claim which had been made before the Tribunal. He submitted that the applicant had never claimed that he was politically active.

25. Mr Fairfield referred to some of the cases which say that it is not for a Tribunal to make out a case on behalf of the applicant. It is for the Tribunal to consider the claims which are put forward by an applicant and to see if the elements put forward amount to a well founded fear of persecution for a relevant reason. Mr Fairfield referred to Re Minister for Immigration and Multicultural and Indigenous Affairs;Ex parte Applicants S134/2002 [2003] HCA 1, VGAO of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 68 and Parra v Minister for Immigration and Multicultural Affairs [2000] FCA 85.

26. The substance of the complaint under the first and fourth arguments is that the Tribunal has dealt with them as past incidents and has not turned its mind to the future. I do not consider it is a case of raising a new claim. The applicant's claim was that he feared persecution because of his Kurdish connections which include political connections. The 1995 incident and the May Day rally in 1999 are put forward as evidence of persecution or fear of persecution.

27. The 1995 incidents and subsequent surveillance were put forward by the applicant as having occurred because he was suspected of having Kurdish political connections. I consider that the Tribunal dealt with them in that context, and so considered the question whether similar things might happen again if the applicant returned to Turkey.

28. The Tribunal, in its reasons, said that it accepted that the applicant was mistreated at school because he was Kurdish and he was expelled because he had a banned magazine. It was satisfied that his experiences at school did not now indicate that he was at any real risk of persecution because he is Kurdish.

29. The Tribunal dealt with the 1995 incidents. It said:

He also claims that he was detained during a 1995 raid at the house he shared with a friend in G. The Tribunal accepts that the Applicant was detained but soon released because, as he explained, the authorities accepted his colleague's explanation he had nothing to do with the materials that were found on the premises and the activities of his colleague. In view of the country information, it accepts that the Applicant was mistreated during that period of detention. The finding that he was released because he was perceived innocent is consistent with his evidence that he returned to his village. The Tribunal accepts that local officials kept him under surveillance in his home town. That is plausible given the concern about Kurdish terrorism and the fact that he was a Kurd in a predominantly Turkish area.

Notwithstanding that, he was not harassed during the next year, before commencing national service, nor was he unduly harassed as a Kurdish activist while he was in the Army. He was honourably discharged and returned to his village, where he subsequently married and then remained for a further six months or so after his marriage.

30. As to the May Day protests in 1999, the Tribunal said:

It is plausible that the Applicant took part in May Day protests in M in 1999 and that he ran away when police dispersed the protesters. It is also plausible that his parents told him not to return to his home village, as some of B's colleagues had been arrested.

Similarly, it is plausible that someone had told police that the Applicant had participated in the May Day rally. However, he was able to remain in A for a significant period after the rally and then made his way to Cyprus. While he claims he did not pass through official controls, he was willing to carry his passport with him and then returned that document to officials in his home area so that it could be renewed in March 2001. He was also willing to return to M when he left Cyprus and then proceeded to go to the international airport in Istanbul. He passed through all the usual security checks using the passport that had been issued his own name.

31. After dealing with other matters, the Tribunal said:

The Applicant has been involved in Kurdish cultural activities in Australia. It is possible that his participation has been monitored by Turkish consular officials. However, those activities are not political and the Tribunal is not satisfied that the participation in Kurdish cultural events would attract any adverse attention should he return to Turkey, where there continues to be a lifting of restrictions on Kurdish and Alevi cultural activities. The Applicant does not have a history of dissidence in Turkey, his last encounter with the authorities was in 1995 and the issue was finalised at that time. The Tribunal is satisfied that the Applicant is not suspected of holding dissident political views and it concludes he does not face a real chance of persecution for reason of his activities in Australia, combined with the fact that he is Kurdish and has a relative who was associated with a banned political party.

32. The Tribunal has considered whether the applicant faces a real chance of persecution if he returned to Turkey, and has done so in the context of the 1995 incident, the 1999 May Day rally, that he has a relative who was associated with a banned political party and the political situation in Turkey so far as Kurds are concerned. If the complaint about the Tribunal's deliberations is that it did not consider what might happen if the applicant returned to Turkey and became politically active, or more politically active than he had been, then it was not required to do that. That was not the claim put before it or which could be found in the evidence and submissions which the applicant put before the Tribunal. The applicant did not suggest that he intended becoming more politically active than he had been. The claim put before the Tribunal was that by reason of what had happened in the past, the applicant had a well founded fear of persecution if he returned to Turkey. The Tribunal has considered what happened in the past in the context of what might happen in the future. There was no failure by the Tribunal to consider a substantial or relevant issue.

33. The second complaint is that the Tribunal failed to consider whether the applicant might suffer persecution because his name was in B's notebook, given that the Tribunal had not specifically found that his name was not in the notebook.

34. The applicant claimed that he went with B's family to collect the body. He claimed he was arrested and interrogated and claimed that the police told him they had found his name in the notebook on B's body. The Tribunal rejected the applicant's evidence about this incident. It considered that the applicant had fabricated the evidence. There is no challenge to this finding. It necessarily follows that the Tribunal has rejected the evidence that B's body had a notebook on it which had the applicant's name on it. The Tribunal rejected all of the applicant's evidence about this incident and gave its reasons. There was no need for it to go through the evidence line by line saying that it rejected each part of it. There is no substance in the complaint that the Tribunal failed to consider a relevant matter so far as the notebook is concerned.

35. The third complaint, concerning the applicant leaving his pregnant wife, is that the Tribunal has failed to consider a significant matter going to credit. The Tribunal disbelieved the applicant about significant matters. These were that he had gone with B's relatives to collect his body and that he had been charged with offences in Turkey. The submission is that the Tribunal failed to consider, as a matter going to credit, why the applicant might have left his pregnant wife, never see his child, and had never returned to his wife. It was submitted that there would have to be a serious reason for him acting in this way.

36. The weight to be attached to any particular piece of evidence is a matter for the Tribunal, Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156 at [38], Kenny J. A line by line refutation of the evidence is not necessary, so long as the Tribunal gives its reasons for rejecting evidence, Re Minister for Immigration and Multicultural affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407, [65] McHugh J.

37. The Tribunal explained why it did not accept various parts of the applicant's claim. The reasons were specific to those claims. It did not reject everything that the applicant had said. It set out in its reasons that the applicant had married, had gone to Cyprus when his wife was pregnant and had never seen his child or his wife again. The Tribunal accepted that this had happened. It may be that the Tribunal considered these matters irrelevant to credit. Even if it did, it did not have to make a specific reference. There has not been a jurisdictional error.

38. Consequently, I do not consider that there has been any jurisdictional error and the application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 24th November 2004
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