Aksahin v MIMA

Case [2000] FCA 1570

FEDERAL COURT OF AUSTRALIA

Aksahin v Minister for Immigration & Multicultural Affairs [2000] FCA 1570

IMMIGRATION – application for a protection visa – Turkish national – Kurdish ethnicity – unwillingness to comply with general requirement for compulsory military service – military service involving possible action against persons of Kurdish extraction – whether penalties of general application for non-compliance could constitute persecution  for a Convention reason – conscientious objection based upon ethnicity – whether law of general application capable of giving rise to persecution for a Convention reason – alleged failure of Tribunal to make findings of material fact relating to discriminatory treatment of law breakers – application dismissed.

Migration Act 1958 (Cth) s 430, s476(1)(a)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 applied
Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192 cited
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 followed

MUSTAFA AKSAHIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W42 of 2000

FRENCH J
3 NOVEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W42 OF 2000

BETWEEN:

MUSTAFA AKSAHIN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

3 NOVEMBER 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The Applicant is to pay the Respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W42 OF 2000

BETWEEN:

MUSTAFA AKSAHIN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE:

3 NOVEMBER 2000

PLACE:

PERTH

REASONS FOR JUDGMENT

Introduction

  1. An eighteen year old Turkish national of Kurdish extraction came to Australia on a boat from Indonesia, landing at Ashmore Reef  in May 1999.  He applied for a protection visa based on claims that he was liable to persecution if returned to Turkey. His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs. As developed before the Refugee Review Tribunal his claims included fear of persecution on account of his  perceived political opinions and affiliations, his ethnicity and his anticipated refusal to comply with a general requirement for military service.  The Tribunal affirmed the decision to refuse a protection visa and he applies for judicial review before this Court based primarily upon the Tribunal’s treatment of the contention that the consequences of his refusal to do military service in Turkey would constitute persecution for a Convention reason.  He also contends that the Tribunal failed to make certain material findings in its reasons.

    Factual Background Leading to the Present Application

  2. Mustafa Aksahin was born in Pazarcik in Turkey on 1 August 1980.  He is a Turkish national of Kurdish extraction.  On 22 April 1999 he departed from Turkey taking a flight from Istanbul airport to…

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Details
AGLC
Aksahin v MIMA [2000] FCA 1570
Case
[2000] FCA 1570
Decision Date

CaseChat Overview and Summary

Mustafa Aksahin, a Turkish national of Kurdish origin, applied for a protection visa in Australia, claiming that he would be persecuted if returned to Turkey due to his ethnicity, political beliefs, and refusal to serve in the military. The Refugee Review Tribunal rejected his application, and he sought judicial review in the Federal Court of Australia. The primary legal issue was whether the Tribunal correctly interpreted and applied the law in determining that Mr Aksahin's refusal to serve in the Turkish military would not amount to persecution for a Convention reason. Mr Aksahin argued that the Tribunal failed to recognise that the compulsory military service requirement discriminated against Kurds and that his refusal to serve arose from a genuine conscientious objection based on political or racial reasons. Additionally, he contended that the Tribunal did not make certain material findings as required by section 430 of the Migration Act.

The Court found that the Tribunal correctly interpreted and applied the law. The Court held that the Tribunal was entitled to conclude that a refusal to serve in the military would not give rise to a well-founded fear of persecution for a Convention reason if the requirement to serve is a law of general application and the consequences for refusing to serve are the same for all. The Court held that the Tribunal was not required to accept that the refusal to serve in the military would result in persecution if the refusal was based on political or racial reasons, as it was sufficient for Mr Aksahin to demonstrate that his refusal was for a Convention reason. The Court further held that the Tribunal was not required to make additional findings of fact in relation to the nature and extent of the penalty or other harm that Mr Aksahin faced a risk of suffering if he refused to perform military service.

The application for judicial review was dismissed, and Mr Aksahin was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs of the application.

Background

Background to the litigation

An eighteen year old Turkish national of Kurdish extraction came to Australia on a boat from Indonesia, landing at Ashmore Reef in May 1999. He applied for a protection visa based on claims that he was liable to persecution if returned to Turkey. His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs. As developed before the Refugee Review Tribunal his claims included fear of persecution on account of his perceived political opinions and affiliations, his ethnicity and his anticipated refusal to comply with a general requirement for military service. The Tribunal affirmed the decision to refuse a protection visa and he applies for judicial review before this Court based primarily upon the Tribunal’s treatment of the contention that the consequences of his refusal to do military service in Turkey would constitute persecution for a Convention reason. He also contends that the Tribunal failed to make certain material findings in its reasons.Factual Background Leading to the Present Application Mustafa Aksahin was born in Pazarcik in Turkey on 1 August 1980. He is a Turkish national of Kurdish extraction. On 22 April 1999 he departed from Turkey taking a flight from Istanbul airport to Singapore and then to Djakarta. From Djakarta he travelled to Bali and then took a ferry to Kopang. From Kopang he travelled with an Indonesian people smuggler by boat to Ashmore Reef where apparently the boat was apprehended. He was placed in detention at the Port Hedland Detention Centre. At an initial interview conducted with an officer of the Department of Immigration and Multicultural Affairs he gave as his reason for leaving Turkey that his family and relatives, being Kurds, had been assaulted by Turkish military forces and police. He himself had been assaulted by police and military about three or four years previously although he did not remember why this had happened. He also complained that he would be forced to fight against other Kurds. No other reasons were elicited for his departure from Turkey at that time. On 28 May 1999, Mr Aksahin lodged an application for a protection visa. In that application he indicated that his father and mother are still resident in Turkey as are his two sisters and two brothers. He had had a Turkish passport but had given it to the smuggler in Kopang. In a statement attached to the application he said that he was Kurdish and a Sunni Muslim. The reason he gave for leaving Turkey was stated thus: “Last year Ismail my brother was arrested and taken to gaol at Etipi Celaevi in Gaziantep. I don’t know exactly why he was imprisoned but I believe it was because he was Kurdish. He was in gaol for about 2 months. He has been driving a bobcat since getting out of gaol. I heard stories about my father being under pressure and having been tortured when I was little. However I have not witnessed anything myself.”The statement expressed his fear that he would be punished and gaoled if he returned to the country and that he would be harmed or mistreated by “police and Gendarmes”. When asked why he believed they would harm or mistreat him, his statement said: “Because I am Kurdish and no other reason.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J
The grounds of review as particularised in the amended application were as follows: “1.That the decision of the Tribunal involved an error of law, being the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.PARTICULARSa)In making the finding that a refusal by the Applicant to serve in the Turkish military would not give rise to a well-founded fear of being persecuted for a Convention reason; the Tribunal held that “The fact that someone objects to serving in the military because of their race or political opinion or because they do not wish to participate in what they see as an unjust or immoral war does not give rise to a claim under the Convention if the requirement to serve in the armed services during such war is a law of general application and the consequences for refusing to serve are the same for all. It is only if an individual faces discriminatory treatment for a Convention reason in relation to his military service or if his refusal to serve results in him being seen as holding unacceptable political views and he is at risk of harm because of this, he may have a claim for refugee status.” b)Such finding of the Tribunal failed to recognise that the Turkish law relating to compulsory military service adversely impacted upon and therefor discriminated against Kurds who objected to being at risk of being forced to be part of inhumane campaign against the Kurdish population in SE Turkey.c)Further such finding of the Tribunal failed to recognise that it was sufficient for the Applicant to show that his refusal to serve in the military arose from a genuine conscientious objection based on political or racial reasons in circumstances where the military engaged in systemic human rights abuses against the Kurdish population in SE Turkey which conduct was in breach of international law and involved crimes against humanity and that there was a real chance that the Applicant would suffer persecution as a result of his beliefs. d)To the extent that the Tribunal purported to dispose of the Applicant’s fear of persecution arising out of a refusal to undergo military service because of a fear of being required to serve in the Kurdish populated rural areas in SE Turkey; by the Tribunal’s finding that “the evidence before the Tribunal indicates that it would be unlikely that Mr Aksahin would be sent into combat against the PKK in the southeast as the number of Kurds is kept to a relatively small portion of the entire force and Kurds who are not believed to support the government are not generally sent to area”; such finding demonstrated that he (sic) Tribunal erred in its interpretation, and its application to the facts as found, of the phrase “well founded fear of persecution.2.The Tribunal failed to observe the procedures required by s 430 of the Migration Act in that it failed to set out its findings on any material questions of fact; and refer to the evidence or any other material on which its findings of fact were based, in relation to the following matters.PARTICULARSa)The Tribunal failed to make any finding of fact as to whether the Applicant’s possible refusal to perform military service would be by reason of a genuine conscientious objection.b)The Tribunal failed to make any finding of fact as to the nature and extent of the penalty or other harm that the Applicant faced a risk of suffering if he refused to perform military service. c)The Tribunal failed to make any finding of fact as to whether or not the law relating to compulsory military service adversely impacted upon and therefor discriminated against Kurds such as the Applicant who objected to being at risk of being forced to be part of systemic human rights abuses against the Kurdish population in SE Turkey.d)Having regard to the evidence before the Tribunal which was essentially accepted by the Tribunal that torture and other serious ill-treatment of persons held in detention in Turkey was widespread:I.The Tribunal failed to make findings of fact as to whether any penalty imposed on the Applicant for refusing to be drafted for military conscription carried a real chance that it would result in torture or other serious ill treatment amounting to persecution.II.The Tribunal failed to make any finding of fact as to whether the Applicant as a Kurd would suffer disproportionately from any official penalty that might be imposed for a refusal to perform military service by reason of torture or other serious ill-treatment that he might suffer as a result of being a Kurd who was in conflict with the authorities by refusing to perform military service.”A third ground was abandoned at the hearing.The Tribunal’s Decision

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

The Tribunal referred to a claim by Mr Aksahin that his passport was obtained illegally. It rejected that contention and the contention that he had left Turkey illegally. It did not believe that he was of interest to the Turkish authorities for any Convention reason. Turkish citizens generally have the right to obtain a passport and travel abroad. There is no reason why he would not have been able to obtain a legal passport through normal channels. The claim that the passport was false or illegally obtained was at odds with information in his protection visa application which was prepared with the assistance of a registered migration agent and stated that he left Turkey legally with his passport. The Tribunal believed this to be the truth and that Mr Aksahin had sought to change his evidence to bolster his claim for refugee status. Discriminatory Operation of Military Service Requirement The first and primary ground upon which Mr Aksahin challenged the Tribunal’s decision was that it wrongly failed to accept that exposure to punishment for refusal to comply with a general requirement to perform military service could be persecution for a Convention reason. If a military service requirement of general application operates in a discriminatory way against people of particular ethnicity or political belief, then punishment for non-compliance, it was said, could amount to persecution for a Convention reason where such non-compliance was related to the person's ethnicity or political belief. It was submitted that where refusal to perform military service is for genuine reasons relating to human rights abuses by the military then, however the country of origin may view the penalty resulting from the refusal, in reality it would result from the decision by the individual not to comply for reasons having a political, religious or racial basis. Accordingly, it was submitted there should not be any difficulty in accepting that the penalty in such a case would be for a Convention reason and that the test of a “well-founded fear of persecution for a Convention reason” would therefore be met. The Tribunal, it was said, should have found that it was sufficient for Mr Aksahin to show that his refusal to serve in the military arose from a genuine conscientious objection based on political or racial reasons given that the military engaged in systematic inhumane conduct against the Kurdish population of south east Turkey and that there was a real chance that he would suffer persecution as a result of his beliefs. The refusal to accept a claim for protection arising out of a conscientious objection to military service failed to recognise that the law relating to compulsory military service adversely impacted upon and therefore discriminated upon Kurds who objected to being involved in the “inhumane campaign against the Kurdish population in south east Turkey”. This position was said to be consistent with statements of principle in the High Court that laws of general application have to be considered in context as to whether they impact on a minority group in a discriminatory fashion.