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MIGRATION - Application for review of Decision of Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.

NAOR v Minister for Immigration [2003] FMCA 37 (27 February 2003)

NAOR v Minister for Immigration [2003] FMCA 37 (27 February 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOR v MINISTER FOR IMMIGRATION
[2003] FMCA 37



MIGRATION - Application for review of Decision of Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.



Judiciary Act 1903

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

R v Murray; Ex parte Proctor (1949) 77 CLR 387

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte applicant S134/2002 [2003] HCA 1

SBBS v MIMIA [2002] FCAFC 361

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Yusuf [2001] ALJR 1105

Applicant:
NAOR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ871 of 2002



Delivered on:


27 February 2003



Delivered at:


Sydney



Hearing Date:


14 February 2003



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Ms M. Allars



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application is dismissed.

(2) That the Applicant pay the Respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ871 of 2002

NAOR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 24 May 2002 and handed down on

18 June 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.

2. The applicant applied to the Federal Court on 16 July 2002. The matter was transferred to this Court on 5 September 2002 by Branson J.

3. The applicant, who was born in Turkey, is a citizen of Turkey and of Northern Cyprus. Since 1985 he has been resident in Northern Cyprus. He arrived in Australia on 10 February 2001 on a Turkish passport accompanied by his wife and two children. On 26 April 2001 he sought a protection visa. His wife and children also sought protection visas but no specific Convention claims were made on their behalf.

4. On 14 June 2001 a delegate of the Minister refused to grant protection visas to the applicant and his family and on 26 June 2001 the applicants applied to the Tribunal for review of that decision.

5. The applicant claims to fear persecution if he returns to either Northern Cyprus or Turkey on the ground of his Kurdish ethnicity and his political opinion. He was born in Turkey and went to Northern Cyprus in 1985. He was not a member of any political organisation but had pro-Kurdish views and had met with, and engaged in political discussions with, students and others at a restaurant he operated in Northern Cyprus. He claimed that he was terrorised and that demands for protection money were made by members of the para-military MHP (Nationalist Action Party) and similar organisations, that corrupt police officers demanded protection from him and that after he ceased paying protection money in 1999 his business was attacked and destroyed. The applicant also claimed that his daughter (who did not make any specific Convention claims on her own behalf) was taken by a fascist gang in a car and questioned on one occasion and that his wife (of Turkish ethnicity) received threatening phone calls. He also contended that there were always problems for Kurds in Turkey.

6. The Tribunal held a hearing on 19 September 2001 at which the applicant, his wife and another witness gave evidence. As requested by the applicant the Tribunal provided a Turkish interpreter. After the hearing the Refugee Review Tribunal sought further information from the applicant in relation to certain matters. The applicant provided a written submission dated 30 October 2001 and a submission was also provided by the Refugee Advice and Case Work Service on behalf of the applicant on 9 October 2001.

The Tribunal's decision

7. The Tribunal accepted that the applicant was a citizen of both Turkey and Northern Cyprus and was Kurdish by ethnicity. However, it was not satisfied that his claimed fear of persecution in Northern Cyprus on the basis of his Kurdish ethnicity and his political opinion was well-founded. Moreover the Tribunal found that he could return to live safely in Turkey and was not satisfied that he had a well-founded fear of being persecuted in that country.

8. While it was accepted that the applicant had pro-Kurdish views and had engaged in political discussions and attended formal meetings, the Tribunal noted that he was not a member of any political organisation. It was not satisfied that as a result of these meetings and discussions he had attracted the adverse attention of the authorities in a way that might lead to his being persecuted in the future. The Tribunal accepted that corrupt police officers had demanded money from the applicant on a few occasions but there was no evidence that he was harmed in any serious way after he stopped paying it. The Tribunal also accepted that he was targeted by fascist gangs, but found that their primary interest was connected with his being a successful businessman who could pay, although it did accept that it was possible that he was targeted at least in part because of his ethnicity and political views. On his own evidence the applicant rebuilt his business after the attacks in 1999 and there was no further attack on his shop during the 15 months until he left Northern Cyprus.

9. The Tribunal found that the applicant's account of the time of the incident when his daughter was questioned was inconsistent with the account given in oral evidence by his wife. While this inconsistency was seen as of concern by the Tribunal, the Tribunal member accepted that such an incident occurred at some stage before the family left Northern Cyprus, possibly in late 2000, that the daughter was questioned on earlier occasions when she was not detained and that such events were distressing for the daughter as well as for the applicant and his wife. However, the Tribunal found that this incident was, on the applicant's evidence, investigated by the police and that no similar incidents occurred from then until February 2001 when the family left Northern Cyprus. The Tribunal member was of the view that had the people in question intended serious harm to the applicant or his family they would have done so in this period and that the circumstances did not disclose that the authorities failed to take appropriate action about the incident.

10. The Tribunal also found the evidence as to threatening phone calls allegedly received by the applicant's wife unconvincing. The applicant claimed that his wife had received threatening phone calls for 12 months before they left Northern Cyprus. She claimed that she had received such calls for 2� to 3 years. The Tribunal found the claims unlikely, suggested that the couple would have taken earlier action if the phone calls had occurred as claimed and concluded that it was not credible that the applicant and his family would remain in their home and in the same business over this period if the calls were as serious, frequent and threatening as claimed. The Tribunal found that to the extent the applicant wife did receive any calls, such calls were not as serious or as frequent as claimed.

11. The Tribunal also rejected the applicant's claim that he and his family did not receive protection from the authorities in Northern Cyprus (particularly the police) and that they would not receive such help in the future because the police were corrupt and closely connected with criminal and fascist gangs that had harmed them in the past. Based on the applicant's own evidence and country information the Tribunal was not satisfied that the applicant could not seek the protection of the police, other authorities or relevant legal institutions in Northern Cyprus or that the authorities would be either unwilling or unable to offer protection to the applicant from the criminal and fascist people he feared.

12. The Tribunal also concluded on the basis of independent evidence that government and police authorities in Northern Cyprus do not mistreat particular groups including Kurds. It considered, and put to the applicant and his witness at the hearing, that there was no suggestion in independent information before it (including an Amnesty International Report of 2001) that Kurds are targeted or mistreated in Northern Cyprus. On the applicant's behalf it was suggested that Amnesty International would not know about the problems or does not report the truth of the situation. The Tribunal noted such comments. However it was not satisfied on all the evidence before it that serious problems exist for Kurds in Northern Cyprus or that Amnesty International was simply not aware of such problems.

13. At the hearing, and subsequently in writing, the Tribunal asked the applicant to comment on information before it that could be seen as adverse. This information related to the provision of overseas information to the Department and the circumstances of an interview with the applicant by an officer of the Department on his arrival at Sydney airport. On balance the Tribunal accepted the explanations given by the applicant for matters which had been of some concern. Hence it expressly stated that it placed no weight on any aspect of the so-called adverse information provided to the Department overseas or on any aspect of the interview with the applicant by the Immigration inspector. The Tribunal also accepted translations of newspaper articles submitted by the applicant as genuine but found that they concerned prominent journalists and editors in Northern Cyprus and did not provide documentary evidence regarding the applicant's own circumstances. Further, the Tribunal accepted a conclusion in a psychologist's report from the Transcultural Mental Health Centre to the effect that the applicant suffered from post-traumatic stress disorder and major depression. However it noted that the account of the applicant's background in this report relied on what the applicant had told the psychologist (which was consistent with his other claims) and the Tribunal concluded that this was not in itself evidence of the truth of the applicant's claims or that his claims were well-founded within the meaning of the Convention.

14. The Tribunal concluded that the applicant did not have a well-founded fear of persecution in Northern Cyprus. It also went on to consider whether it would be possible and reasonable for the applicant to return to live in Turkey which he had a legal right to re-enter and remain in as a Turkish citizen. The Tribunal noted that the applicant was born in Turkey, claimed to hold Turkish citizenship, travelled to Australia on a Turkish passport and that he had re-entered Turkey on three occasions since 1985. It found his claim that Kurds are treated adversely in Turkey unconvincing in the light of independent country information and the absence of evidence that he personally was discriminated against in any serious way because of his ethnicity. Since the applicant's political involvement in Northern Cyprus was of a very limited kind it was found that he would not be a target for discrimination in Turkey as a Kurd who had publicly or politically asserted his Kurdish identity. The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason in Turkey. Nor was it satisfied that he could not live there permanently and without fear of harm if he decided that he did not want to live in Northern Cyprus.

15. The Tribunal concluded that since the applicant did not satisfy the criteria for a protection visa his wife and children also could not be granted protection visas.

Applicant's grounds of review

16. The grounds of review stated in the application for review are that:

i) The country information on which the Tribunal based its decision was said to be inaccurate and incomplete in that the United States State Department generally supports the policies of Turkey and the Northern Cyprus government;

ii) Additional information regarding the general situation in Cyprus was not taken into account by the Tribunal; and

iii) It was not an option for the applicant to return to Turkey as suggested by the Tribunal because he had been informed that there was a warrant for his arrest issued there and that he was in an untenable position having made a refugee application in Australia.

17. The applicant did not specify the remedies sought in his application but indicated that he sought a bridging visa and would like to apply for a work permit.

18. The applicant was directed to file an amended application and written submissions. He did not do so. The applicant did however provide a handwritten document as to his personal situation in the course of the hearing.

19. Although not expressed in these terms I take the application to be intended to be an application under section 39B of the Judiciary Act 1903. In light of the conclusion I have reached in relation to this application, the absence of proper specification of the orders sought is of no significance. I also note that in the affidavit accompanying his application the applicant merely stated that he was not in receipt of any assistance at the moment and had no financial resources. However in the course of the hearing a number of general claims were made by the applicant. Essentially these are as follows:

i) That a Turkish interpreter was used in the hearing and that the applicant was not sure if she had interpreted everything correctly.

ii) That at the hearing he had been asked a lot of questions and that he did not have an opportunity to answer all the questions properly.

iii) That the Tribunal made an adverse credibility finding based on inconsistent answers in relation to the daughter's kidnapping and that this was not fair or correct.

iv) That the Tribunal's decision unfairly emphasised the applicant's evidence in relation to coming to Australia on a Turkish passport and that he was not given an opportunity to explain all the questions that they asked him.

v) That the Tribunal had not believed his evidence in relation to the treatment of Kurds in Northern Cyprus.

vi) That the Tribunal had not taken into account his medical report in relation to his psychological condition.

vii) That the Tribunal considered him to be a Turk and not a Kurd.

viii) That the Tribunal had not accepted a letter which he had provided from a friend.

ix) That if the applicant and his family could not be granted protection visas then they should be granted visas on humanitarian grounds.

The respondent's submissions

20. The respondent submitted that the applicant had not identified any reviewable error in the reasons of the Tribunal and that the application should be dismissed with costs. Detailed written submissions were provided and Counsel for the respondent addressed the issues raised by the applicant at the hearing.

The applicable law

21. Pursuant to section 483A of the Act the Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Pursuant to sections 475A and 476(1), while the Court has no jurisdiction in relation to primary decisions made under the Act it has jurisdiction in relation to a "privative clause decision" made on a review by the Tribunal. "Privative clause decision" is defined in sub-sections 474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

"A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

22. In NAAV v MIMIA [2002] FCAFC 228 the Full Court of the Federal Court held that section 474 must be construed in the same manner as the kind of privative clause considered in the decision of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In other words there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as section 474 would be valid. These are: first that the decision was a bona fide attempt by the decision maker to exercise its power, second that the decision related to the legislation, and third that the decision was reasonably capable of reference to the power conferred on the decision maker. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravened an inviolable limitation on the operation of the Act.

23. On 4 February 2003, in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that, adopting an interpretation of section 474 that was consistent with the Constitution, section 474 of the Migration Act was constitutionally valid (at [3] - [22] per Gleeson CJ, at [71], [79] - [83] per Gaudron, McHugh, Gummow, Kirby, Hayne JJ and at [163] per Callinan J). The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated that the so called "Hickman" principle was simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions and that there could be no general rule as to the meaning or effect of privative clauses (at paragraph [60]). The Court rejected the argument that section 474 had the effect of repealing all statutory limitations or restraints upon the exercise of power or the making of a decision under the Act (at [67] - [68]and also see [34] - [36] per Gleeson CJ and [60] - [63] per Callinan J). The Court held that as a matter of construction the expression "decision...made under this Act" in subsection 474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act" (at [76] and also see at [19] per Gleeson CJ and [163] per Callinan J). If there has been jurisdictional error "because, for example, of a failure to discharge `imperative duties' or to observe `inviolable limitations or restraints' the decision cannot properly be described in the terms used in s.474(2) as `a decision...made under this Act' and is, thus, not a `privative clause decision' as defined in ss.474(2) and (3) of the Act" ([76] and also see [20] -[21], [33] - [36] and [162]). Further, "A decision flawed for reasons of a failure to comply with the principles of natural justice is not a "privative clause decision" within s.474(2) of the Act" (at [83] and also see [36] - [38] and [159].

24. The question of whether the Tribunal has committed a jurisdictional error requires the Court to consider whether particular limitations and requirements placed on the Tribunal are so expressed that "they must be taken to mean that observation of the limitations and compliance with the requirements are essential to valid action".(see Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400 and also see Plaintiff S157/2002 at [63] - [70]). The majority judgment in Plaintiff S157/2002 also indicates that the protection the privative clause affords to a `decision' within s.474(2) will be inapplicable unless the three provisos referred to in paragraph 22 above are satisfied ([64] and [99] and also see Gleeson CJ at [20]).

25. In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular issue of jurisdictional error by reason of the denial of procedural fairness which was asserted by the plaintiff. The precise scope of the notion of jurisdictional error in this context and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints raise some complex issues (see for example Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte applicant S134/2002 [2003] HCA 1 in relation to section 65 of the Migration Act). These issues do not require resolution in the present case as, for the reasons set out below, I am not satisfied that the Applicant has established or that the material before the Court reveals any reviewable error or denial of procedural fairness.

26. The first ground alleged by the Applicant in his application, namely that the country information on which the Tribunal based its decision was inaccurate and incomplete amounts to an assertion of factual inaccuracy. There is no specification of particular additional information not taken into account.

27. The Applicant also claims that additional information relating to the general situation in Cyprus was not taken into account. There is no evidence of any such material available to or before the Tribunal. It is not open to the Applicant to seek to introduce additional material in these proceedings in particular material that postdates the Tribunal decision. The Applicant has not specified the material which it is alleged is inaccurate or incomplete or which the Tribunal is said to have failed to take into account. The Tribunal clearly took into account the United States Department of State Country Report on Human Rights 2001 in relation to Cyprus dated 4 March 2002, the United States Department of State Country Report on Human Rights 2001 in relation to Turkey dated 4 March 2002, the DFAT cable AN128 dated 29 March 2000, the DFAT advice CX40960 dated 29 March 2000, the DFAT Refugee Determination Country Profile Turkey dated October 1993 and the Amnesty International Report 2001 (AI Index POL 10/001/2001). Aspects of the Amnesty International Report were in fact put to the Applicant and his supporting witness (who was president of a Kurdish organisation that helps asylum seekers in Australia and who had provided a letter in support of the Applicant to the Tribunal). The Tribunal addressed the resulting comments and provided reasons for its conclusions in relation to the material relied upon. The Applicant has not established that some relevant, significant and credible material was provided to the Tribunal and not taken into account.

28. Thirdly, the Applicant alleged that as an applicant for a protection visa he was in an untenable position and that it is not an option for him to return to Turkey as there is now a warrant for his arrest. In relation to the first claim there is no suggestion that such a claim or evidence to support it was put before the Tribunal. No error in this respect is established. There was no suggestion by the applicant at the time of the Tribunal hearing or in the subsequent submissions of a warrant for his arrest. In so far as the Applicant claims that the warrant was issued or he became aware of a warrant after the Tribunal determination this is material that was not before the Tribunal and does not demonstrate any error on the part of the Tribunal.

29. In oral submissions the applicant alleged that, as the interpreter was Turkish, he could not be sure she interpreted everything that was said correctly. I note that he requested and was provided with a Turkish interpreter. There is no suggestion in the Tribunal reasons for decision of any difficulties with the interpretation. The Applicant gives no evidence of having raised any issue as to the adequacy of the interpreter with the Tribunal member and this matter was not raised as an issue in the application for review. The complaint is in very general terms. In the course of the submissions the Applicant said that he speaks good Turkish because he lived in Turkey (prior to moving to Northern Cyprus). The general complaints made by the Applicant in relation to the interpreter do not establish any difficulty with the interpretation or that the Applicant was denied the proper opportunity to appear before the Tribunal to give evidence and present arguments as required by section 425 of the Migration Act. Accordingly it is not necessary to determine whether section 425 is an inviolable limitation on the powers of the Tribunal. Nor does the material before the Court suggest that there was any denial of procedural fairness in this respect.

30. The Applicant complained generally that he was not able to concentrate sufficiently to provide proper answers to questions put to him in the Tribunal hearing. There was no evidence of this in the reasons for decision (although I note that the Tribunal member accepted the description of his medical condition provided in a psychiatric report which he submitted to the Tribunal). Furthermore, both the Applicant and his adviser had the opportunity to and did provide further written submissions to the Tribunal. Any difficulties he considered that he had experienced could have been addressed in that way. In particular the Applicant complained that he made a mistake in telling the Tribunal that he came to Australia on a Turkish passport and that he was not given a chance to explain the answers to all of the questions that he was asked. In relation to the specific issue of the passport I note that while information relating to his intentions in coming to Australia and an interview at the airport on his arrival was put to the Applicant after the hearing for comment (see section 424(A)) in fact the Tribunal member, as discussed above, placed no weight on such potentially adverse information and reached her decision for other reasons. There is no evidence to support his claim that he did not have an opportunity to explain the answers to all the questions that he was asked. Both the applicant and his adviser had the opportunity to make further submissions after the hearing. The Tribunal reasons reveal that such submissions were taken into account by the Tribunal.

31. The Applicant sought to put to the Court fresh evidence that he paid for and provided bribes for the issue of a passport. Such fresh evidence does not provide a ground for review of the Tribunal decision.

32. As to his complaint that the Tribunal placed weight on the different dates given by himself and his wife in relation to the incident involving his daughter and on this basis determined that he was no truthful, it was open to the Tribunal to make adverse credibility findings based on the Applicant's answers in relation to his daughters kidnapping. The disparity in the evidence before the Tribunal as to such significant incident was relevant to the claim of well founded fear of persecution and relevant to the credibility of the Applicant. The Tribunal gave reasons for its findings in relation to this incident which were open to it on the facts before it and no reviewable error in this respect has been demonstrated.

33. The Applicant claimed that the evidence of his psychological condition and a letter from his friend were not taken into account or not accepted by the Tribunal. However the Tribunal reasons for decision refer to each of these matters. The conclusions of the Tribunal in this respect (as set out above) again were open to it on the evidence before it. Reasons for the conclusions were given and there is nothing to suggest that the Tribunal failed to take into account relevant considerations in either of these submissions. The Tribunal did not consider the Applicant to be a Turk rather than a Kurd. It made a clear statement that it accepted his claim of Kurdish ethnicity and the decision proceeds on that basis.

34. There is no evidence that the Tribunal declined to treat any evidence provided as potentially relevant. The Tribunal assessed the evidence and reached findings of fact which were open to it. The complaint that the Tribunal did not believe evidence about treatment of Kurds seeks impermissible merits review. As indicated at paragraph 27 it has not been established that the Tribunal failed to take into account any relevant information.

35. The applicant also sought a bridging visa and permission to work. There is no decision of a Tribunal before the Court concerning such matters. The Court has no power to grant such a visa or work permit in the proceedings before it. Nor can it grant a visa on humanitarian grounds as sought by the applicant. Such an application is a matter for the respondent under section 417 of the Act.

36. I have also considered generally whether any or all of the circumstances relied on by the Applicant indicate that there was a denial of procedural fairness. However, nothing in the material before the Court establishes that there was any lack of procedural fairness. For the sake of completeness I note that it was not argued, nor does the material before the Court establish breach of any of the so-called `Hickman' provisos or conditions (see R v Hickman; Ex parte Fox and Clinton [1945] 70 CLR 598). There is no evidence of any lack of good faith on the part of the Tribunal or that the decision was other than a bona fide attempt by the Tribunal to exercise its power (see SBBS v MIMIA [2002] FCAFC 361 at [42] - [48]). Nor is there anything to suggest that the decision did not relate to the subject matter of the legislation, that it was not reasonably capable of reference to the power given to the decision-maker or that there was otherwise a breach of any inviolable limitation.

Conclusion

37. No jurisdictional error of any kind has been established (see Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] ALJR 1105) in this case. It follows that the applicant's claim for relief must be dismissed.

38. I therefore dismiss the application and order that the applicant pay the respondent's costs.

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

Associate:

Date:
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