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MIGRATION - Appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activities - jurisdictional error - whether Tribunal made jurisdictional error in not accepting the applicant's explanations - privative clause - decision of Refugee Review Tribunal confirmed.

VAAD v Minister for Immigration [2002] FMCA 163 (11 July 2002)

VAAD v Minister for Immigration [2002] FMCA 163 (11 July 2002)
Last Updated: 19 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAAD v MINISTER FOR IMMIGRATION
[2002] FMCA 163



MIGRATION - Appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activities - jurisdictional error - whether Tribunal made jurisdictional error in not accepting the applicant's explanations - privative clause - decision of Refugee Review Tribunal confirmed.



Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth), s.39B

Migration Legislation Amendment (Judicial Review) Act 2001

Federal Magistrates Court Rules 2001

Randhawa v Milgea (1994) 124 ALR 265

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616

SAAD v MIMIA (2002) FCA 206

SBAE v MIMIA (2002) FCA 479

Turcan and MIMIA (2002) FCA 397

Craig v South Australia (1995) 184 CLR 163 at 179

MIMIA v Yusuf (2001) HCA 30 at para 82

Boakye-Danquah v Minister for Immigration, Multicultural and Indigenous Affairs (2002) FCA 438 (11 April 2002)

Abebe v The Commonwealth (1999) 197 CLR 510 at 576 (para 187)

Kioa v West (1985) 159 CLR 550 at 587

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591/2

Applicant:
VAAD



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ446 of 2002



Delivered on:


9 August 2002



Delivered at:


Melbourne



Hearing Date:


11 July 2002



Judgment of:


Hartnett FM


REPRESENTATION

Applicant in person:


26 Rostrom Way

ROXBURGH PARK VIC 3064



Counsel for the Respondent:


Mr C. Horan



Solicitors for the Respondent:


Clayton Utz Lawyers

Level 18, 333 Collins Street

MELBOURNE VIC 3000



ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules, Part 21, Rule 21.10.

IT IS CERTIFIED:

(3) That pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably require the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ446 of 2002

VAAD


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. Pursuant to order of Finkelstein J made on the 8th May 2002, these proceedings were transferred from the Federal Court of Australia to the Federal Magistrates Court of Australia and proceeded before me for hearing, with the applicant appearing in person and Mr Horan of Counsel appearing on behalf of the respondent. The applicant was assisted by an interpreter who was present in the courtroom in Melbourne.

2. The applicant is a citizen of Turkey of Kurdish ethnicity and Alevi religious belief (CB 210). He arrived in Australia on 18 March 2001 on a class TR sub-class 676 tourist short-stay visa (CB 31). He arrived by plane. On 1 May 2001 he lodged an application for a protection visa. The applicant claimed to fear persecution for reasons of his ethnicity, religion and actual and imputed political opinions. On

21 August 2001, a delegate for the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant a protection visa and the applicant subsequently applied for a review of that decision by the Refugee Review Tribunal ("the RRT").

3. On 16 November 2001 the RRT affirmed the delegate's decision (CB 207/221). The Tribunal found that there was not a real chance that the applicant would be persecuted for any Convention reason. The applicant filed an application for review of the Tribunal's decision with the Federal Court of Australia on 18 December 2001. That application was amended and is dated 8 July 2002. The applicant relied upon the amended application. The relief sought by the applicant includes an order that this Court make a declaration that the decision of the RRT is unlawful, void and of no force and effect.

4. The grounds stated in the application are:

a) The RRT acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material;

b) The RRT failed to review and consider the application for the purposes of ss.47, 65 and 414 of the Migration Act 1958;

c) The RRT decision was based on an irrelevant consideration;

d) The RRT decision was so unreasonable that no reasonable decision maker could have made it;

e) The applicant was denied natural justice;

f) The decision was not capable of reference to the powers given to the RRT under the Migration Act 1958;

g) The decision was not made in good faith or was not a bona fide attempt to exercise the powers conferred upon the RRT.

5. The applicant also relied upon the applicant's contentions of fact and law dated 8 July 2002. The respondent filed the Court Book on

1 February 2002 and further relied upon the respondent's contentions of fact and law filed 15 March 2002 and the respondent's supplementary submissions dated 11 July 2002.

Background

6. The applicant is a 31 year old married man, his date of birth being 15/7/1971 and the date of his marriage being 15 August 2000. He married in Kayseri in Turkey. He described his occupation as a process worker. He departed Turkey on 17/3/2001 in an aircraft and on a passport issued in his own name. He left Turkey on 17/3/2001 and arrived in Australia on 18/3/2001. He has no university trade or similar qualifications and the history of past employment given by him in his application for a protection visa was variously as a labourer, a soldier (in 1991 to 1992) and a worker in a chicken factory and with Polly Furniture.

7. The applicant claimed that as he was born of Kurdish ethnicity and was of the Alevi religion, he was a threat to the Turkish government. He claimed that following the completion of his army service in 1993, he was approached by Turkish officials and asked to join their forces to spy and become an informant. He refused the offer and believes that upon his re-entry to Turkey, pressure will be put upon him to work for the government as an informant against his own people. He claimed extreme measures will be used to try and persuade him to work for the government and that such measures will include continual harassment and physical punishment. In addition, he claimed that the government official will make it impossible for him to find normal work and lead a normal life. The physical punishment, which he described in his application for a protection visa, included the taking of him into custody and submitting him to various forms of torture. He claimed that the Turkish government officials will interpret his refusal to work for them as being indicative of him being a PKK (Kurdistan Workers' Party) supporter. The applicant claimed to have had to pay a bribe to obtain his passport to enable him to depart from the Istanbul airport.

8. The applicant's mother, father, brothers and wife continue to reside in Turkey whilst the applicant's sister resides in Australia.

9. The applicant claimed that in 1993 he became sympathetic to the DEP (People's Democratic Party). He started becoming more proactive within the party and commenced to distribute pamphlets and put up posters. In May 1993, during the course of a DEP Youth Branch meeting, the police raided the place at which the meeting was held and he, along with others, was taken to the police station. The applicant claimed that on that day he was tortured. He claimed to have been beaten on the soles of his feet, punched and kicked during the night, and as a result he has scars - one to his right arm elbow and the other to his right leg - and that he was required to return to his village where he spent four weeks effectively in the care of his family. That same evening, his friend Kerim Demir was tortured and he subsequently heard that Kerim had died. The applicant claimed that whilst recuperating in his village, the secret police came and visited him and requested of him that he become an informant. As a consequence of their harassment he decided to leave the village and he travelled to Ankara in the July of that year where he commenced to work in the building construction industry as a labourer, remaining for three years. He then went on to another location and thence to Alanya from where he returned (some one year and nine months following his departure from Ankara) to his village. The applicant claimed to have returned to his village in May 1999 and obtained employment in June 1999 working at Polly Furniture in Kayseri. He claimed that at this time he was again harassed and following his marriage in August 2000 he was retrenched from his employment with Polly Furniture in October. He claimed to have been visited by the same government officials before he found other employment in November 2000 in a chicken factory as a delivery man. The applicant claimed that a week after commencing work at this factory, two men came to his home and took him for a drive, blindfolded him, took him to a location where they threatened him to accept their offer of working for them. He claimed he told them he needed some time to think and talk to his wife about their proposals and that he understood on departing from them he had to get out of the country to escape.

The RRT decision

10. On review, and in order to satisfy the RRT that he was entitled to a protection visa, the applicant had to satisfy the decision maker that the prescribed criteria for the visa had been satisfied [section 65(1) of the Migration Act 1958 ("the Act")]. The relevant criteria in this case is set out in s.36(2) of the Act. This provides that a criteria for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention defines a refugee as any person who:

"...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."

11. The RRT found that there was not a real chance that the applicant would be persecuted for any Convention reason. The Tribunal:

a) accepted that the applicant had encountered racial denigration during his army service and on other occasions by reason of his race. However the Tribunal concluded that such occasional discrimination fell well short of a definition of persecution;

b) accepted that the applicant was occasionally used as an unofficial interpreter when he went with army colleagues to the south eastern and predominantly Kurdish region. The Tribunal accepted that he was sometimes involved in the questioning of villagers as to their movements and whether or not they had any links with, or information about, the PKK;

c) accepted that the applicant had a low-level association with the People's Democratic Party (DEP) or "HADEP" as a supporter, but not a member. However, the Tribunal found:

"The applicant was generally vague about his association with DEP. At most, his evidence indicates that he had a low-level association with DEP as a supporter, but not a member, and the Tribunal accepts that to have been the case. In light of the level of involvement by the applicant and his evasiveness in giving details of aspects of his alleged detention in the early 1990s, the Tribunal is not satisfied that he was detained or mistreated by police due to having been present at a DEP meeting. In any event, the alleged incident occurred some years ago. The applicant was never charged with any offence and was able to return to his own village where he felt safe. The Tribunal concludes that any detention of the applicant then does not indicate a real chance of persecution of him now or in the forseeable future for any convention reason."

d) The Tribunal set out a range of country information and found there was no evidence that members or supporters of HADEP were systematically subjected to harm from the authorities. Accordingly, the applicant did not face a real chance of any harm on the basis of his (or his relatives) association with HADEP (CB 216).

e) The Tribunal found as lacking in credibility the applicant's claim that after his army discharge he was approached by unidentified people whom he assumed to be police officers, effectively to intimidate him into acting as an informer on the PKK at a time when he was known to be identified with the DEP and further that he was approached some years later to undertake the same kind of work for the authorities and yet was blindfolded, detained and mistreated when apprehended, released without charge the next day and then threatened with serious harm if he did not work on behalf of the State (CB 212).

f) Referring to country information, the Tribunal found that the fact that the applicant was able to depart Turkey on his own passport indicated that he was not of interest to the authorities.

g) The Tribunal found there was considerable evidence that Kurds are disadvantaged in Turkey, especially in cultural activity, and in the south east region it found no material to indicate that a person such as the applicant would face adverse consequences amounting to persecution in Turkey on the basis of his race. The Tribunal referred to DFAT Country Profile - Turkey 1993 and the United States Department of State "Country Reports on Human Rights 1999" and found that while there was ample evidence that many Kurds had been subjected to persecution in Turkey, it is equally clear that the risk is much more substantial to those from the south east region and to those with an actual history of political activity (CB 217).

h) The Tribunal gave weight to country information regarding the situation of Alevis and Kurds and found that the chance of the applicant encountering persecution by reason of his religion is remote (CB 220).

i) The Tribunal also considered material lodged by the applicant and accepted that there continue to be abuses of human rights in Turkey and that some prominent HADEP members had been temporarily detained and mistreated in recent times. However, the Tribunal concluded on the basis of the applicant's own profile and for the other matters outlined above, that he did not himself face a real chance of persecution by reason of his political opinion or for any other convention reason.

j) The Tribunal also gave weight to the fact that a witness of the applicant encountered no harm during an extended visit to Turkey last year. As an Alevi Kurd, like the applicant, and with blood connections to a person he claims to have been a prominent HADEP representative, the witness'own lack of harm was further indicative of the absence of a real chance of persecution of the applicant himself for any convention reason. The Tribunal did not accept that the applicant's witness would have been protected from harm simply by carrying Australian documentation.

k) Finally, the Tribunal did not accept that the applicant's wife has needed to flee to Ankara in order to avoid endeavours by the authorities to locate the applicant, but notes nevertheless the applicant's statement that his wife regards Ankara as a safe haven. Thus, if the applicant were to have a continuing subjective fear for his wellbeing in his own district, it would not be unreasonable to expect him to relocate to another part of Turkey. In line with the principles enunciated in the matter of Randhawa v Milgea (1994) 124 ALR 265, the Tribunal found that the applicant was able to relocate to an area of Turkey such as Ankara or some other major centre where he would not face a real chance of persecution for any convention reason (CB 220).

12. Accordingly, the Tribunal is not satisfied, both on the evidence of the applicant, the applicant's witness and because of independent country information, that the applicant had a well founded fear of persecution on his return to Turkey. Thus it affirmed a decision not to grant him a protection visa.

Jurisdiction

13. The jurisdiction of the Federal Magistrates Court is set out in s.483(A) of the Migration Act 1958 (Cth).

14. The errors identified in the decision of the RRT must be such as to attract relief under s.39B of the Judiciary Act 1903 (Cth). The enquiry required of the Court is whether the approach adopted by the Tribunal was such as to render its decision invalid. That question requires the Court to identify the scope within which the Tribunal is empowered to operate pursuant to the terms of the Migration Act 1958 including s.474.

15. Section 474 of the Act is contained in the new Part 8 of the Migration Act consequent upon the amendment of the Migration Legislation Amendment (Judicial Review) Act 2001. The provisions of the new Part 8 apply in respect of judicial review of any decision made under the Migration Act where the application for review is not lodged before the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act. The application before me was lodged after the commencement of the schedule and is therefore subject to the new regime.

16. The combination of ss.475A and 476 limit the jurisdiction of this Court relevantly to that conferred by s.39B in relation to any matter arising under any laws made by the Parliament.

17. Section 39B(1A)(c) - the validity of a decision made by the Tribunal involves such a matter.

18. Section 474 places into the Migration Act a privative clause. Such a clause has been interpreted by the High Court in the line of authority in accordance with the principles of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616. In his judgment in that case, Dixon J stated the three preconditions to the valid exercise of decision making powers to which such a clause applies:

a) The decision maker is required to have made "a bona fide attempt to exercise its power";

b) The decision "relates to the subject matter of the legislation"; and

c) The decision "is reasonably capable of reference to the power given to" the decision maker.

19. Thus, a decision maker's decision is protected by a privative clause for only so long as the decision maker does not exceed his or her jurisdiction in the breach of one of the Hickman conditions.

20. In a number of decisions of the Federal Court of Australia, differing views have emerged as to how it is that the Court should approach the application of the law. The respondent submits that regardless of the approach taken by me, the applicant cannot succeed.

21. I refer to two decisions of Mansfield J, namely SAAD v MIMIA (2002) FCA 206 and SBAE v MIMIA (2002) FCA 479. His Honour's approach in those matters before him was to look first to see whether or not there were any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). In SBAE at 17 he said:

"The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The Court is not entitled to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. This is not to indicate that, in this instance, I have found different views about matters of fact upon which the Tribunal has made findings. I have not done so. This is not the Court's function. It is to indicate that, without error of the kind which would enliven a Court's power under section 39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the Court to simply revisit the determination of the Tribunal or set it aside."

22. His Honour would only consider the effect of s.474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B. When he was unable to find such an issue in SAAD, His Honour said (at page 23):

"Consequently, in my view, it is not necessary to address the application of section 474 in the particular circumstances."

23. This approach has not been universally adopted. In other cases, a differing approach has been taken, in particular I refer to the decision of Heerey J in Turcan and MIMIA (2002) FCA 397 where His Honour stated (in para 46):

"In my view, the correct approach is to first consider whether section 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if section 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in terms goes to the Court's jurisdiction and is to be applied at the threshold."

24. The operation and effect of s.474 of the Act has recently been the subject of argument before a Full Court of the Federal Court in several appeals, judgment in which is reserved. I propose to determine firstly whether there are any matters raised by the applicant that individually or collectively establish jurisdictional error sufficient to satisfy a review under s.39B of the Judiciary Act. The ability to grant such relief would then be subject to the provision of s.474 of the Migration Act.

25. In Craig v South Australia (1995) 184 CLR 163 at 179, Brennan, Dean, Toohey and McHugh JJ said:

"If an administrative 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 power. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."

26. The passage above was cited with approval by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) HCA 30 at para 82. McHugh, Gummow and Hayne JJ went on to say:

" `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 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."

27. Notwithstanding that the case of Yusuf was decided before the 2001 amendments, this case and its interpretation of the law has recently been accepted by Wilcox J in the Federal Court in the decision of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438 (11 April 2002).

28. Some of the applicant's contentions turn on what was allegedly said at the hearing before the Tribunal. However, the applicant has not filed or served a transcript of the Tribunal hearing, nor proposes to do so.

29. The applicant contends that the Tribunal failed to deal with the essential elements of his claims, namely his involvement with the DEP or HADEP, his claimed detention by the authorities in 1999 and the question of whether he faced a real chance of persecution on the ground of actual or imputed political opinion.

30. The Tribunal considered and made findings on the applicant's claim to have been involved with the DEP. The Tribunal was not obliged to ask the applicant for further details as to his involvement with the DEP. It is the responsibility of the applicant to present to the Tribunal all available information or material on which he or she relies in support of his or her application.

31. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 (para 187):

"The proceedings before the Tribunal are inquisitorial and the Tribunal is not in a position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contentions that she has a well founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out."

Similarly, Mason J stated in Kioa v West (1985) 159 CLR 550 at 587:

"The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward."

32. The Tribunal considered the applicant's alleged detention in 1993 and found that even if it had occurred, the incident was some years ago and did not give rise to a well founded fear of persecution in the future. As to the applicant's claims as to his arrest and detention in 1999, the Tribunal also clearly dealt with those claims and rejected them.

33. The Tribunal also considered all the claims and evidence with respect to the applicant claiming that he would face a real chance of persecution for a Convention reason, including for reasons of his political opinion.

34. The applicant contends that the Tribunal erred by placing weight on evidence relating to the lack of harm encountered by the applicant's witness during a recent visit to Turkey. This was clearly a relevant matter for the Tribunal to consider and the question of the weight to be given to that evidence was a question for the Tribunal.

35. The assessment of the applicant's evidence about his alleged arrest and detention in 1993 was a matter for the Tribunal. There is nothing that indicates it was not entitled to conclude that the applicant was evasive in giving details of aspects of this alleged detention. The Tribunal was not obliged to give the applicant an opportunity to respond to the evidence given by his relative in support of his application. In any event, the applicant was present whilst his relative gave evidence to the Tribunal and was aware of the content of his relative's evidence. The Tribunal was not required to indicate to the applicant that it proposed to place weight on the fact that the applicant's relative encountered no harm during his visit to Turkey, nor was it obliged to give the applicant an opportunity to comment on this fact. The Tribunal is not obliged to notify the applicant of its mental processes or to provide the applicant with an opportunity to comment on its preliminary findings before making its decision (see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591/2).

36. I do not find that the Tribunal identified or addressed wrong issues or ignored relevant material or relied on irrelevant material. I find that the Tribunal did address the applicant's claim and based its decision upon a proper consideration of material put before it by both the respondent and the applicant and in addition considered other information such as that contained in country information reports. The applicant's complaint is effectively that the Tribunal did not accept his explanations and he seeks to dispute on the merits the conclusions which the Tribunal reached. That alone is not a basis for judicial review. It does not constitute jurisdictional error. Having addressed the matter in this manner, it is now unnecessary for me to proceed to consider s.474 of the Act in the circumstances of this case.

37. Accordingly, I dismiss the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:
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