Ahz19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 648

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 648   

File number(s):

MLG 206 of 2019

Judgment of:

JUDGE BLAKE

Date of judgment:

1 April 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection visas – whether the Tribunal was unreasonable in rejecting claims of the Applicant and finding that the Applicant and his mother were not witnesses of truth – whether the Tribunal erred in interpreting or applying the law – whether the Tribunal failed to consider relevant considerations – whether the Tribunal did not give evidentiary weight to an important piece of evidence – no jurisdictional error – application dismissed.  

Legislation:

Migration Act 1958 ss 36(2)(a), 36(2)(aa), 5H, 5J

Cases cited:

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CQG15 v Minister for Immigration and Border Protection and Another [2016] FCAFC 146

WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 139

Number of paragraphs:

77

Date of hearing:

17 February 2021

Place:

Heard at Melbourne, delivered at Dandenong

Counsel for the Applicants:

Mr Krohn

Solicitor for the Applicants:

Vrachnas and Co

Counsel for the Respondents:

Mr Cunynghame

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

MLG 206 of 2019

BETWEEN:

AHZ19

First Applicant

AIA19

Second Applicant

AIB19

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	1 APRIL 2021

THE COURT ORDERS THAT:

1.The Application filed on 25 January 2019 and amended on 27 January 2021 be dismissed.

2.The Applicants pay the First Respondent's costs of the proceeding fixed in the sum of $5,000.

REASONS FOR JUDGMENT

JUDGE BLAKE:

INTRODUCTION

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal') on 2 January 2019. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse the application for a Protection (Class XA) (Subclass 866) visa (‘visa’).

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The Applicants are Turkish nationals. The First Applicant (‘Applicant’) is the primary visa Applicant, and it is his claims for protection on which the visa application is based. The Second Applicant is the wife of the First Applicant, and the Third Applicant is their child who was born in Australia.  

4. The Applicant arrived in Australia on 21 June 2010 with his Wife and child on a student visa. He applied for the visa on 22 January 2014.

5. On 29 April 2015, a Delegate of the Minister ('Delegate') refused to grant the Applicant the visa.

6. On 14 May 2015, the Applicant applied to the Refugee Review Tribunal (as it then was) (‘Tribunal’) for review of the Delegate's decision.

7. The Applicant subsequently attended two hearings before the Tribunal.  There was also a not insignificant exchange of correspondence and submissions between the Tribunal and the Applicant prior to the Tribunal reaching its decision.

8. On 2 January 2019, the Tribunal affirmed the decision not to grant the Applicant the visa.

9. The Applicants filed their initial application for review and affidavit in support in this Court on 25 January 2019.

10. On 21 February 2020, the Applicant filed an Application in a Case seeking to add two recently born sons of his as the Fourth and Fifth Applicant to the application.

11. On 7 August 2020, the Applicant filed a further Application in a Case seeking an expedited hearing.

12. For reasons which are unclear to me, the Applications in a Case referred to above were not heard or determined prior to the final hearing listed before me. The Applicant agreed at the final hearing that the appropriate course was to dismiss the applications. I made orders to that effect.

13. An Amended Application ('Application') was filed on 27 January 2021. The Application identified the 4 grounds of review.

14. The final hearing was subsequently listed to be heard before me on 17 February 2021. Due to current circumstances surrounding the global pandemic of COVID-19, the matter proceeded before me by videoconference.

    THE DECISION OF THE TRIBUNAL

15. As will be seen from the grounds of review, the Applicant takes issue with aspects of the Tribunal’s reasoning.  Accordingly, it is necessary to traverse the manner in which the Tribunal approached its task.

16. The Tribunal commenced what is on any view a lengthy decision by recording the background of the Applicants and the relevant law: see paragraphs [2]-[6] of the reasons.

17. The Tribunal summarised the evidence given by the Applicant in relation to his life in Turkey prior to March 2010: see paragraphs [7]-[10] of the reasons.

18. The Tribunal then summarised the Applicant’s evidence about the events in March 2010.  This included the Applicant’s evidence about a protest that he attended, the Applicant being held in police custody overnight, a beating he sustained by the police, his return to his parent’s home, and his departure from Turkey: see paragraphs [11]-[18] of the reasons.

19. The Tribunal next summarised the Applicant’s claims in relation to how and when he was informed in mid-2013 by his family that the Turkish police had come looking for him.  The Tribunal raised concerns it had directly with the Applicant about his version of events: see paragraph [19]-[22] of the reasons.

20. At paragraphs [23]-[34] of the reasons, the Tribunal summarised what flowed from a request that the Tribunal take evidence from the Applicant’s mother in Turkey.

21. At paragraphs [35]-[42] of the reasons, the Tribunal summarised evidence given by the Applicant’s mother.  The Applicant’s mother, among other things, gave evidence that the Turkish police started coming to her home to look for the Applicant after the Applicant had left Turkey.  She also gave evidence that she first told the Applicant about these visits in 2013, approximately three years after he left Turkey.  The Tribunal put to the Applicant’s mother that surely she would have considered it more important to relay this information to her son at the earliest opportunity to which she replied that she did not wish to hassle him. The Tribunal recorded that it had difficulty accepting her account.

22. At paragraphs [43]-[58] of the reasons, the Tribunal summarised the evidence given by ‘witness A’ to the Tribunal. Among other things, witness A gave evidence that he had travelled to Turkey and whilst visiting the Applicant’s parents, he witnessed the Applicant’s mother being visited by the police.  The Tribunal raised with witness A apparent inconsistencies in his evidence and his decision not to tell the Applicant of the police visit he had witnessed on his return to Australia.

23. At paragraphs [59]-[65] of the reasons, the Tribunal considered the evidence of the Applicant as to what he decided to do once he was told by his mother in 2013 about the police visits to her house and that the authorities were looking for him.  Among other things, the Applicant indicated that his wife wished to go to Turkey to find out what the situation was there.  The Tribunal questioned whether the Applicant would have been concerned for his wife given his claims about what was occurring in Turkey.  The Tribunal also records its questioning of the Applicant’s wife in relation to why she thought it was necessary to return to Turkey and what inquiry she intended to make.

24. At paragraphs [66]-[71] of the reasons, the Tribunal records the evidence given in relation to the Applicant’s wife being questioned on return to Turkey, the Applicant’s mother travelling in and out of Turkey and evidence about how the Applicant obtained a passport and left Turkey.

25. At paragraph [74]-[94] of the reasons, the Tribunal makes a series of findings in relation to claims made by the Applicant.  It is the findings contained within these paragraphs that, inter alia, give rise to the present challenge by the Applicant, and I will return to them later in these reasons.

26. From paragraphs [95]-[132] of the reasons, the Tribunal engages in the task of assessing the risk to the Applicant of suffering serious harm that flows from him being Alevi and an atheist.

    THE APPLICATION

    Ground 1

27. The first ground of review in the Application is as follows.

    The Tribunal fell into jurisdictional error in that it was unreasonable.

    Particulars

    a)The Authority was unreasonable in rejecting as false the claim by the First Applicant and his mother and the Second Applicant that it was not until 2013, after the First Applicant said that he was considering returning to Turkey, that his mother told him that the Turkish authorities had come looking for him in the period after he left Turkey.

    b)The Tribunal was unreasonable in rejecting as false the claim that the Second Applicant “would take the risk of returning to Turkey to make enquiries of some kind about how serious the situation was”.

    c)The Tribunal was unreasonable on the basis of either or both of the findings in particulars (a) and (b) to this Ground to find that “that the [first] applicant, his wife and his mother are not witnesses of truth.”

    d)The Tribunal was unreasonable to reject as false “the claims made by the applicant, his mother and witness A that while he was there Turkish police came to the premises and held a conversation with the applicant’s mother in which they said they were looking for the applicant.”

    e)The Tribunal was unreasonable to reject as false “the applicant’s wife’s claims that when she returned to Turkey in 2013 she was questioned by the authorities.

    f)The Tribunal was unreasonable to find that “Similarly, the Tribunal disbelieves the claims made by the applicant’s mother that she was also questioned about the applicant when she travelled out of Turkey as narrated above.”

    g)The Tribunal was further unreasonable on the basis of its finding that the First Applicant and his mother were “not witnesses of truth”, to reject all the claims and evidence of the First Applicant having suffered harm before leaving Turkey, without considering whether some of the evidence might be true, particularly as the delegate accepted some of the claims of past harm.

28. It can be seen that by ground one, the Applicant seeks to challenge various findings of the Tribunal on the basis that those findings are unreasonable.

29. The approach to be taken when assessing unreasonableness is well known.  A decision will be unreasonable where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it, or where a decision has been made that lacks an evident and intelligible justification.  The test for unreasonableness is stringent and only arises in rare cases. 

30. The Applicant takes issue with the findings of the Tribunal at paragraphs [75]-[79], and at [83]-[84].  Those paragraphs are as follows:

    [75]The Tribunal holds significant concerns that, in the applicant’s claimed circumstances, the applicant’s mother would not have, at the earliest opportunity, informed him about the efforts of Turkish police to apprehend him. That is especially so when the applicant was someone who had been arrested, detained and maltreated by Turkish authorities following a protest in March 2010 and which, on his own evidence, caused him to flee from Turkey to save his life. The Tribunal explored these concerns with both the applicant and his mother over the first and second hearing days. In essence, both witnesses claim that this important news was withheld from the applicant so as not to worry him or make him sad. It was the applicant’s mother’s plan to only tell the applicant of this news in the event he indicated he was going to come back to Turkey.

    [76]The Tribunal has carefully considered the evidence of the applicant’s mother and the applicant and does not believe that, in the applicant’s claimed circumstances, his mother would behave as claimed. The Tribunal does not believe that the applicant’s mother would withhold from her son, who had fled his country in fear of Turkish authorities, the important news that they had come to her home to apprehend him simply so as not to upset him. In addition, the Tribunal also holds significant concerns about the behaviour of the applicant and his wife once given the dramatic news that Turkish authorities had been looking for him since he left Turkey.

    [77]The Tribunal had difficulty accepting that, in those circumstances, rather than straightaway apply for protection, the applicant’s wife would take the risk of returning to Turkey to make enquiries of some kind about how serious the situation was. The applicant made clear in his evidence to the Tribunal that after he was released in March 2010 he thought that if he remained in Turkey he would be seriously harmed and took the step of going to live with his parents to evade the authorities and then make arrangements to leave Turkey. The Tribunal had difficulty accepting that, in those circumstances, once told that Turkish officials had been pursuing him after he left the country, he or his wife would perceive any need to return to Turkey to find out more about that and take the risk of doing so.

    [78]The explanations of the applicant and his wife with respect to this concern were, essentially, that there were no cases against the wife, she wanted to investigate, she was stubborn in that respect and she was missing her own family. None of those explanations persuade the Tribunal to accept the claims advanced by the applicant and his wife that on being given news that Turkish authorities were pursuing him they did not straightaway investigate and apply for protection and, instead, embarked on a course of action involving the applicant’s wife risking her own safety to return to Turkey. The Tribunal could see no plausible or convincing purpose in the applicant’s wife undertaking enquiries about the seriousness of the situation when both would have been well aware of that.

    [79]Accordingly, the Tribunal disbelieves the evidence of the applicant and his wife about their reasons for his wife returning to Turkey. The Tribunal finds these claims to be false and, for all of these reasons, disbelieves the claims advanced by the applicant and his mother that, since his departure from Turkey, Turkish officials have come to the applicant’s parents looking for him. The Tribunal disbelieves the claims made by the applicant and his wife that the applicant’s mother told them in mid-2013 that Turkish officials were pursuing him and disbelieves their claims that the applicant’s wife then returned to Turkey to make further investigations about that. For all of these reasons, the Tribunal finds that the applicant, his wife and his mother are not witnesses of truth.

    …

    [83]However, although witness A may well have visited the applicant’s parents as is claimed, the Tribunal disbelieves the claims made by the applicant, his mother and witness A that while he was there Turkish police came to the premises and held a conversation with the applicant’s mother in which they said they were looking for the applicant. The Tribunal disbelieves those claims because they are inextricably linked to the basic claim made by the applicant that news of the Turkish authorities’ interest in him since he left Turkey was not conveyed to him by his mother until sometime in mid-2013 when he told her he was thinking of returning to Turkey. While witness A maintains the applicant’s mother told him not to tell the applicant about the visit to the home by Turkish authorities, the Tribunal, for the reasons given above, does not believe that the applicant’s mother would behave that way. Accordingly, the Tribunal finds, in line with its credibility findings made above, that the evidence of the applicant’s mother, witness A and the applicant that Turkish authorities came to his parents’ home in May 2012 while witness A was present, is false.

    [84]As the Tribunal does not believe that Turkish authorities came to the home of the applicant’s parents to apprehend him after he left Turkey, the Tribunal also disbelieves the applicant’s wife’s claims that when she returned to Turkey in 2013 she was questioned by the authorities. Similarly, the Tribunal disbelieves the claims made by the applicant’s mother that she was also questioned about the applicant when she travelled out of Turkey as narrated above.

31. In summary, the Applicant makes the following submissions in relation to particulars (a) – (f) of this ground of review. First, it is important to acknowledge the statutory context. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (‘Chan’) established that a real chance of persecution or a real risk of significant harm is sufficient to establish a claim for protection.  It was submitted that this context requires evidence prior to making findings or some basis to conclude, beyond a real chance of error, that human beings could not have acted in the way the Applicant claims his mother and his wife had acted.  The Applicant conceded that while ‘some people might have acted in the way the Tribunal expected’, it ‘cannot be said that the claimed behaviour could be ruled out as a reasonable possibility’. Therefore, it was submitted, as ‘the Tribunal was required to consider whether there was a real chance of persecution or serious harm, it was unreasonable in making these findings, rejecting the claims about the Applicant’s mother and his wife’.  Indeed, it was submitted that unless the Court could conclude that no mother would behave in this way, and no wife, the Tribunal did not have a legally reasonable foundation to disbelieve the Applicant’s claims. Second, it was submitted that it was not open to the Tribunal to reject the claims of the Applicant and his mother as a lie when there was a lack of probative evidence to support that conclusion.

32. Insofar as particular (c) to this ground of review is concerned, the Applicant submitted  that the finding identified in this particular was unreasonable on the basis of the findings identified under particulars (a) and (b).  It was submitted that simply because the Applicant’s mother and wife could not be believed in relation to the matters identified under particulars (a) and (b), that did not necessarily mean that they should be found not to be ‘witnesses of truth’.

33. Insofar as particulars (d) – (g) are concerned, the Applicant submitted that these findings were unreasonable because they were based on the earlier findings identified above, and those findings are flawed.  The Applicant placed particular emphasis on the finding identified at paragraph (g) of the particulars.  It was submitted, in effect, that it was unreasonable for the Tribunal to reject all of the claims and evidence of the First Applicant having suffered harm before leaving Turkey simply on the basis that the Applicant and his mother were not ‘witnesses of truth’ which in itself is a flawed finding.  It was submitted that such a finding goes wildly beyond what is reasonable and that it is unreasonable to discard all of that evidence without assessing it, or at the very least, treating it with some suspicion.

34. It is important to first consider the Applicant’s submissions in relation to the statutory context.  I accept the statements of principle derived from Chan.  In particular, I accept that a real chance of persecution or a real risk of significant harm is sufficient to establish a claim for protection.  I also accept that a real chance is one that is not remote.  I do not accept, however, that because the Tribunal was required to consider whether there was a real chance of persecution or serious harm, that it acted unreasonably in making the findings it did, and rejecting the claims presented by the Applicant’s mother and his wife. Nor do I accept the submission that unless the Court could conclude that no mother would behave in this way, and no wife, the Tribunal did not have a legally reasonable foundation to disbelieve the Applicant’s claims.  That is because these submissions of the Applicant tend to gloss over the standard or tests that I am required to apply when assessing a claim of legal unreasonableness.  Those standards, are not, inter alia, whether no mother or wife could behave in the way found by the Tribunal.  Rather, the question is whether it was open to the Tribunal on the evidence to reach the conclusions that it did.  In that respect, it is accepted that a conclusion will not be unreasonable simply because minds may differ.

1. The submission that the Tribunal, in effect, required some probative or external evidence, or needed to point to some inconsistencies in the evidence, in order to not accept the claims of the Applicant and his mother are also not submissions I would accept. In WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 139 (‘WAJS’), a Full Court of the Federal Court affirmed a decision of the Federal Magistrates Court (‘FMC’).  The appellant had made various claims of ill-treatment at the hands of the Liberation Tigers of Tamil Eelam (‘LTTE’).  The Tribunal accepted much of what the appellant said about the incidents of ill treatment but did not consider that the incidents constituted ‘serious harm’ of a kind which could be regarded as persecution.  Among other things, the Tribunal considered it implausible that the appellant had been detained and tortured in three separate locations for having supplied goods to the LTTE.  The appellant sought to challenge these findings on the basis that the probative material underpinning the Tribunal’s findings was inadequate, and that the Tribunal’s conclusion was founded on mere speculation.

2. The Full Court dismissed the appeal, noting that it agreed with the following comments made by Driver FM in the FMC:

   [16]I see nothing irrational, perverse or illogical in the reasoning of the presiding member in this case. The presiding member was unable to accept that the applicant was taken to three separate locations by the Sri Lankan authorities and ultimately taken blindfolded to Colombo and detained there for three months in connection with a simple allegation that he had been supplying batteries and fuel to the LTTE. I do not necessarily agree with the reasoning of the presiding member. It is conceivable that the Sri Lankan authorities thought that they may have caught a bigger fish than might have been thought apparent from the nature of the accusations. The applicant’s eye injury could have marked him out as a combatant. It is possible that a different presiding member might have reached different conclusions on the evidence. However, mere disagreement with the analysis undertaken by the presiding member does not establish perversity illogicality or irrationality. The conclusions reached by the presiding member were reasonably open to her on the material before her.

3. The Full Court also, in paragraph [17] and [18] stated as follows:

   [17]…Whatever our personal views may have been, and we have not reached any conclusion about them, it cannot be said the Tribunal member’s view was perverse or illogical. Whether rightly or wrongly, she regarded a critical portion of the appellant’s evidence as inherently improbable and, for that reason, was unable to accept its accuracy. This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances.

   [18] …A tribunal of fact is entitled to reject the evidence even of an impressive witness, if it rationally considers that evidence to be implausible; for example, where the evidence is inherently unlikely or at odds with established facts.

4. In CQG15 v Minister for Immigration and Border Protection and Another [2016] FCAFC 146 (‘CQG15’), the Full Court considered a situation in which the Tribunal found that none of its concerns about the appellant’s credibility would necessarily be determinative of that issue, but when considered cumulatively, those concerns led to the conclusion that the appellant was not a witness of truth.  The appellant sought to argue that there was no logical or probative basis at law for the Tribunal’s credibility finding and that the finding should be characterised as illogical or irrational.

5. The Full Court dismissed the appeal.  It found that the inconsistencies and incongruities in the appellant’s evidence were not minor but rather went to essential features of his protection claims.  Accordingly, the Full Court found that there was evidence before the Tribunal to support its conclusion that the appellant was not a witness of truth.

6. A review of the decision in CQG15 discloses that the Tribunal was dealing with a number of inconsistencies or incongruities in the appellant’s claims. A summary of them is contained at paragraph [22] of the judgement of the Full Court. There is little doubt, when one has regard to those matters, that the inconsistencies or incongruities were significant and went to the heart of the appellant’s claims to fear harm arising out of events that were said to have occurred in Afghanistan.

7. There are two matters to note about the authorities above.  First, WAJS makes clear that a tribunal does not require other evidence to find that an applicant’s account is implausible or illogical. An account may be implausible simply because a tribunal is not satisfied that certain events occurred on the material before it. So long as the tribunal considers the evidence logically or rationally, it will not fall into error. Second, CQG15 makes clear that inconsistencies or incongruities on the evidence is a sufficient basis to reject an account given by an applicant.

8. Turning then to the present case. The first matter to observe is that the Tribunal clearly had concerns about whether the Turkish police had visited the Applicant’s mother’s home to apprehend him, and whether his Mother had withheld that information from him for three years.  The Tribunal’s concerns in this respect were raised directly with the Applicant and his mother and recorded by the Tribunal in its summary of their evidence: see paragraphs [21]-[22], [40]-[42] of the Tribunal’s reasons. Further the Tribunal had concerns about the evidence of the Applicant and his wife in relation to the risk to the Applicant’s wife of returning to Turkey to make inquiries about how serious the situation was: see paragraph [60], [63]-[65].

9. The second matter to observe is that, contrary to the submission of the Applicant, the Tribunal did in its reasons identify matters, or set out its reasoning, in support of its conclusions. This included the following:

   (a)The Tribunal set out the reasons why it had concerns that the Applicant’s mother would not have told him, at the earliest opportunity, of the efforts of the Turkish police to apprehend him.  Those reasons concerned the Applicant’s claimed circumstances.  The Tribunal identified that the Applicant was someone who claimed to have been arrested, detained and maltreated by the Turkish authorities following a protest in March 2010 and which, on the Applicant’s own evidence, caused him to flee Turkey.  In that circumstance, the Tribunal did not believe that the Applicant’s mother would behave in the way she had claimed, where she did not tell her son about the police visits as soon as possible. This formed part of the reasons as to why the Tribunal found the claim by the Applicant to have not been told until 2013 of the visits by the police, to be false: see paragraph [75]-[76].

   (b)Given the circumstances identified above, including the claim that the Turkish police had continued to visit the Applicant’s mother in order to apprehend him, the Tribunal identified as a factor in its consideration, the decision of the Applicant not to immediately apply for a protection.  That was a matter considered by the Tribunal as significant.  Indeed the Tribunal noted that it had difficulty accepting that rather than immediately applying for protection, the Applicant’s wife would take the risk of returning to Turkey to make inquiries about how serious the situation was: see paragraph [77] of the reasons.

   (c)There was no dispute that the Applicant’s wife had returned to Turkey to investigate the situation pertaining to her husband.  The Applicant’s claim, supported by his mother, was that the police visited the mother in order to apprehend the Applicant.  The Tribunal stated it had difficulty accepting that the Applicant or his wife would take the risk of returning to Turkey to make inquiries about how serious the situation was, in circumstances where the Applicant’s mother had informed him not to come to Turkey because he was being pursued by the authorities: see paragraphs [76]-[77] of the reasons.

10. The matters I have identified above are all matters that were considered by the Tribunal in reaching the conclusions that are now under challenge.  The Tribunal did not simply make a finding that it did not believe the evidence of the Applicant, his wife, or his mother.  Rather, the Tribunal set out its reasons for the conclusions it adopted. Moreover, when the reasoning above is reviewed, it becomes apparent that the conclusions reached by the Tribunal are conclusions that were reasonably open to it. 

11. It is relevant also to note the following. WAJS makes clear that findings of implausibility in relation to evidence given do not require the Tribunal to point to other evidence to support the rejection of the Applicant’s account.  A tribunal simply needs to satisfy itself on the basis of the material before it as to whether the Applicant was faced with, or likely to face, persecution.

12. For the reasons I have set out above, I am satisfied that the conclusions identified by the Applicant in particulars (a) and (b) to ground 1 are not unreasonable.

13. It is convenient to deal with particulars (c) and (g) together.  Under particular (c), the Applicant challenges the finding made by the Tribunal that the Applicant, his wife and his mother were not witnesses of truth.  Under particular (g), the Applicant challenges as unreasonable the finding of the Tribunal to reject all the claims and evidence of the Applicant having suffered harm before leaving Turkey because he, his wife and his mother, were not witnesses of truth. 

14. In order to assess the contentions above, it is necessary to consider the context of the Applicant’s claims.  While the Applicant recited various times in his life when he was subject to discrimination or mistreatment, it was the events of March 2010 that assume significance. The Applicant recited that after he was arrested in March 2010, he was tortured, threatened, told that he was on a blacklist, and told that he would be prosecuted.  He claimed that following his treatment on this occasion, he determined to leave Turkey, which he ultimately did on a student visa. Clearly, the nub of the Applicant’s claim was that following his participation in the 2010 protests, he was a person of interest to the Turkish authorities.

15. It was in this context, that the Applicant was asked by the Tribunal whether the Turkish police had attempted to locate him after he left Turkey in June 2010.  It was in response to this question that the Applicant claimed his family hid the news from him of the police visits until he indicated he was going to return to Turkey in 2013.  As noted above, the Tribunal did not accept this aspect of the claim.

16. The Tribunal’s decision to reject as false the claim by the Applicant that it was not until 2013 that his mother told him that the Turkish authorities had come looking for him, was significant.  On the Applicant’s version, the police only became interested in him, and started visiting his mother, because of his participation in the protests in March 2010 and the events that immediately followed it. Once the Tribunal was satisfied the claims about the police visits were false, then that necessarily led to consideration of whether the Applicant’s claims in relation to the March 2010 protests and what occurred subsequent to the protests was also false.

17. A similar observation may be made about the finding of the Tribunal to reject as false, the Second Applicant’s claim that she would take the risk of returning to Turkey to make her own enquiries about how serious the situation was.  That finding too was significant. It was linked directly to the findings about the police visits to the Applicant’s mother, and to the claims about how the Applicant became of interest to authorities.  Once the Tribunal found the claim to be false, then it was open to it to consider and question whether the Applicant’s claims in relation to the March 2010 protests and what occurred subsequent to the protests was also false.

18. Accordingly, once the Tribunal concluded that the Applicant and the Second Applicant had made false claims in relation to significant matters that were relevant to the Applicant’s claims to fear harm, it was open to the Tribunal, in my view, to conclude that the Applicant, his wife and his mother were not witnesses of truth.  Accordingly, I do not accept that the conclusion identified by the Applicant in particular (c) is unreasonable.

19. Turning then to particular (g), I am satisfied that the decision by the Tribunal to reject all the claims and evidence of the First Applicant having suffered harm before leaving Turkey was a finding that was made taking into account the findings identified in particulars (a), (b) and (c) to this ground.  As I have already stated, those findings were not only findings that were open to the Tribunal, they were findings of significance.  In my view, of themselves, the findings which the Applicant seeks to challenge in particulars (a) – (c) of this ground are of sufficient importance to reject all claims and evidence of the First Applicant having suffered harm before leaving Turkey.

20. In my view, the following also support a conclusion that the Tribunal did not fall into error when it decided to reject the Applicant’s claims to have suffered harm prior to leaving Turkey. 

21. First, the Tribunal at paragraph [86] identified that the Applicant’s claims about participating in a protest in March 2010 was ‘in effect, the source of his claims about Turkish officials going to his family to find him after he left Turkey’ (emphasis added).  The Tribunal observed that this link was important and stated that ‘as the Tribunal disbelieves the applicant’s evidence on those claims and as the Tribunal finds that he is not a witness of truth, it also therefore disbelieves his evidence that he participated in this protest and was arrested,  detained and maltreated as he claimed’ (at [86]).

22. Second, the Tribunal considered that the Applicant’s claims in relation to his life in Turkey were ‘inextricably linked to the claims the Tribunal disbelieves, namely, that he went in a protest in March 2010 for which Turkish authorities have been pursuing him since he left Turkey’ (at [88]).

23. Third, the Tribunal did accept some elements of the Applicants claim.  It accepted that he was an Alevi and an atheist (at [89]).  The Tribunal acknowledged the ‘applicant’s presence at some events related to dissent against the Turkish government’ but was not persuaded that the Applicant would engage in activities opposed to the government Turkey on his return (at [113]).

24. Finally, it is pertinent to observe that under this ground, the Applicant complains about aspects of the Tribunal findings at paragraphs [100] and [113] of its reasons.  In paragraph [100], the Tribunal states:

    [100]From this country information, the Tribunal infers that the risk of the applicant suffering serious harm on the ground that he is Alevi is remote. There is no credible evidence that the applicant suffered serious harm in Turkey for being Alevi. He was able to find employment in his chosen profession. Although country information indicates that Alevi’s may choose not to disclose the fact that they are Alevi, country information also indicates that Alevi’s are otherwise able to freely participate in life in Turkey, be it to meet with other Alevi’s including as a form of worship and to obtain employment. There is no credible evidence before the Tribunal that the applicant himself had to modify his behaviour with respect to being Alevi to avoid suffering serious harm.

25. It can be seen from the above that the Tribunal’s conclusions in the above paragraph are not solely based on the credit findings made by the Tribunal.  The Tribunal finding is also based on an assessment of country information that is set out at paragraph [99] of its reasons.  Similarly, the Tribunal’s conclusions at paragraph [113] occur in a context where the Tribunal has also considered country information.

26. Accordingly, when all of the above matters are considered, the conclusions of the Tribunal were open to it.  The findings complained about at particulars (c) and (g) are not in my view unreasonable.

27. There are then the conclusions challenged by the Applicant under particulars (d) – (f) of Ground 1.  The Applicant’s challenge to these conclusions is based upon a successful challenge to the findings identified by the Applicant in particulars (a) and (b) to ground 1.  As I have found the conclusions identified in particulars (a) and (b) to this ground to be conclusions that were open to the Tribunal to reach, and not unreasonable, and as the conclusions under challenge in particulars (c) and (g) were also open to the Tribunal, the challenge to the findings identified under particulars (d) – (f) of ground 1 must fail.

28. To return to the relevant principles, it is a high bar to make a finding of unreasonableness.    Providing that the Tribunal approaches the consideration of the matters in a rational and logical manner, mere disagreement with a finding is not a sufficient basis to find irrationality or illogicality.  It may well be the case that a different Tribunal member may have reached a different conclusion.  That, however, is not the test to be applied.  The relevant test is whether the finding/s was open to the Tribunal member.  In my view, findings complained about under ground 1 were findings that were open to the Tribunal member and were findings that were not irrational, illogical or perverse.  For these reasons, ground 1 of the grounds of review must be dismissed.

    Ground 2

29. The second ground of review in the Application is:

    The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.

    Particulars

    a)By reason of the findings set out in the particulars to Ground 1, the Tribunal showed that it was not correctly interpreting or applying sections 5H, 5J, 36(2)(a), and 36(2)(aa) of the Act, which required the Tribunal to find that the Applicants met the criteria for protection if one or more of them had a real chance of suffering persecution or a real risk of suffering significant harm.

30. Under this ground, the Applicant contends that the Tribunal did not correctly interpret and apply sections 5H, 5J, 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (‘Act’). It was submitted that these sections of the Act provide that if there is a real chance of a person suffering persecution, the person is owed protection in Australia. In developing this submission, the Applicant contended that the Tribunal did not allow for the possibility that there was a real chance that a mother and wife might act in the way claimed by the Applicant’s mother or wife. It was further contended that this was despite the Applicant’s mother standing by her claims, despite being pressed by the Tribunal.

31. The difficulty that confronts the Applicant under this ground is that the findings made by the Tribunal were open to it. The Tribunal ultimately found that the Applicant’s claims were not credible, particularly the claims in respect of visits by the Turkish authorities to the Applicant mother’s house to search for him, and his claims in relation to the events of March 2010. As I have stated, I am of the view that the Tribunal’s reasoning in relation to these matters was logical and not unreasonable. Once that conclusion is reached, it follows it was also open to the Tribunal to conclude that the Applicant did not face a real chance of persecution. In my view, no other conclusion in respect of section sections 5J, 5H, 36(2)(a) and 36(2)(aa) is possible given the findings the Tribunal ultimately made.

32. For these reasons, Ground 2 does not disclose any jurisdictional error and must be dismissed.

    Ground 3

1. The third ground of review in the Application is:

   The Authority fell into jurisdictional error in that it failed to consider relevant considerations.

   Particulars

   a) The Tribunal failed to consider whether there was a small but real chance that the claims set out in the particulars to Ground 1 might be true.

   b) Having rejected the claims about events after the First and Second Applicants left Turkey in 2010 (as set out in particulars (a) and (b) to Ground 1), the Tribunal failed to consider whether nevertheless some or all of the other claims of harm suffered by the First Applicant may have been true, particularly as the delegate accepted some of the claims of past harm.

2. Under this ground of review, the Applicant submits:

   (a)there was a failure by the Tribunal to consider relevant considerations and a failure to actively engage with the claim which gives rise to jurisdictional error;

   (b)there was a failure to consider whether there was a small but real chance that the claim set out in the particulars to Ground 1 might be true.  If proper consideration had been given, the Tribunal may well have found there was a real chance the Applicant would suffer harm again in the foreseeable future;

   (c)further or alternatively, having rejected the claims about events that occurred since the Applicant left Turkey, the Tribunal failed to consider some or all of the other claims of harm suffered by the first Applicant.

3. In my view, this ground must fail for reasons similar to those that were put in respect of Ground 1.  The Tribunal considered the Applicant’s claims in relation to the visits by the Turkish police to his mother’s house, what he did upon hearing of those visits, and how his wife subsequently travelled to Turkey to embark upon her own enquiries.  The Tribunal made specific findings about those matters.  Having made findings adverse to the Applicant, the Tribunal then reached the conclusion, that was open to it given the significance of the claims, that the Applicant, his wife, and his mother were not ‘witnesses of truth’.  Having reached that conclusion, the Tribunal then concluded that it did not accept the Applicant’s claims in relation to the events of March 2010, nor did it accept his claims in relation to harm he suffered while living in Turkey.  All of these findings were open to the Tribunal.  The Tribunal considered the claims and rejected them because of the findings it made about the credibility of the Applicant.

4. The Applicant seeks to make something of the fact that each individual aspect or fact of his life in Turkey was not examined by the Tribunal.  There was no requirement on the Tribunal to do so.  Once the Tribunal is satisfied that the Applicant was not a witness of truth, it was entitled to review the Applicant’s claims about his life in Turkey and reject those claims given its credibility concerns.  There was no requirement on the Tribunal to revisit each and every aspect of the Applicant’s claims about his life in Turkey given the conclusions it reached.

5. For the above reasons, Ground 3 does not disclose jurisdictional error and must be dismissed.

   Ground 4

6. The fourth ground of review in the Application is:

   The Second Respondent failed to complete the task required of it under s 414 of the Act to review the decision of the first respondent, and thereby constructively failed to exercise its jurisdiction.

   Particulars

   a) The Tribunal (par. 91) did not give evidentiary weight to a document purportedly issued by a court in Turkey referring to an order to apprehend the first applicant, on the grounds that this did not outweigh the fundamental concern that the Tribunal had with the credibility of the applicant and his mother (the court document).

   b)The Tribunal’s finding at par. 91 did not absolve it from the task of considering and making findings with regard to the court document independently of its credibility finding in relation to the applicant and his mother.

7. This ground of review takes issue with paragraph [91] of the Tribunal’s reasons.  Paragraph [91] of the Tribunal’s reasons is as follows:

   [91]In making its credibility findings, the Tribunal has taken into consideration the documents submitted by the applicant to the Department purportedly issued by a court in Turkey referring to an order to apprehend the applicant in relation to a trial for his participation in demonstrations. In submissions of 25 September 2018, the representative stated that this document was authentic. The existence and contents of this document do not outweigh the fundamental concern the Tribunal holds with the credibility of the applicant and his mother, namely, that she would withhold from her son the important news that Turkish police had come to her to locate him after he left Turkey. It is inconceivable that the applicant’s mother would withhold that news from him until he told her he was thinking of returning to Turkey. Accordingly, the Tribunal does not give evidentiary weight to this document.

8. This specific complaint advanced by the Applicant under this ground of review is that the Tribunal failed to consider an important, independently corroborative, piece of evidence which was the document from a Turkish Court referring to an arrest order for the Applicant.  It is submitted that the decision by the Tribunal to give this document no weight because of the concerns the Tribunal had with the credibility of the Applicant and his mother is flimsy and unreasonable.  This is said to constitute a constructive failure to exercise jurisdiction and also an error by failing to consider a relevant consideration.

9. I am unable to accept that the Tribunal did not consider the document from the Turkish Court or engage with it.  Plainly, as disclosed by paragraph [91] of its reasons, the Tribunal was aware of the document and considered it.  What paragraph [91] of the reasons discloses is a consideration by the Tribunal of a document ‘purportedly issued’ by a Turkish Court, the Tribunal’s awareness of the content of the document-it refers to the order to ‘apprehend’ the Applicant - and the Tribunal actively considering what weight to give the document in circumstances where it has made findings that the Applicant is not a ‘witness of truth’.  Ultimately, the Tribunal gives the document no weight given the ‘fundamental concern the Tribunal holds with the credibility of the applicant’.  It was open to the Tribunal to assess what weight to give the document.  It is well accepted that the weight to be given to a document is a factual matter to be determined by the Tribunal.

10. For all of the above reasons, no jurisdictional error is disclosed by Ground 4.

    CONCLUSION

11. For all of the reasons above, the Application must be dismissed. I award costs to the Minister in the amount of $5,000.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       1 April 2021