Bulduk, Osman v Minister for Immigration and Multicultural Affairs

[1997] FCA 1541

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG702 of 1997

BETWEEN:	OSMAN BULDUK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	LOCKHART J
DATE:	23 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 August 1997 in which the Tribunal said that it was not satisfied that the applicant was a refugee and affirmed the decision of the Minister’s delegate not to grant a protection visa.  The applicant is a Turkish national who arrived in Australia in 1995.  I need not refer to the history of the matter and earlier decisions within the Department as they are set out in the reasons of the Tribunal.

The applicant asserted before the Tribunal that he was entitled to the protection granted by the Refugees Convention and Refugees Protocol on the ground that he had a well-founded fear of persecution for reasons of political opinion, that he was outside the country of his nationality and was unable or, owing to this fear, was unwilling to avail himself of the protection of his country.  The relevant principles governing the application of the Refugees Convention and Protocol are well established by the Australian cases and are set out in the reasons for decision of the Tribunal.  In my opinion they have been not inaccurately set out.

The history of the matter is fully set out by the Tribunal in its statement of reasons and I need not repeat it in detail.  The applicant attended a hearing before the Tribunal on 21 August 1997 when he was accompanied by an adviser and an interpreter.  The applicant made a number of claims before the Tribunal.  The Tribunal found that the applicant was not a generally satisfactory and credible witness in relation to the matters mentioned by it at page 8 of its reasons.

The Tribunal found that the applicant’s real fear of returning to his country was in relation to a sum of money for which he was indebted and legal proceedings said to be in train against him about it.  Further, the Tribunal found that it was satisfied, on the basis of all the material before it, including the applicant’s own evidence before the Tribunal, that the extortion which was the core of the applicant’s difficulties and which led to the debt which is now the focus of his fear of return, was not directed against the applicant because of his political opinions or for any other Convention reason.

The Tribunal found that whether the debt said to be owed by the applicant was a genuine one or whether it arose from criminal extortion, the Tribunal was satisfied that the fact that the applicant might still face difficulties arising from legal proceedings concerning it did not amount to persecution of the applicant for a Convention reason.  The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and Protocol and affirmed the decision not to grant a protection visa.

It is difficult to glean from the application for review the precise grounds on which the review is sought, but I take it into account that the applicant does not speak or understand English.  He has been assisted today by Mr Baran, an interpreter.  The source of this Court’s jurisdiction to review the Tribunal’s decision is Part VIII of the Migration Act 1958. The grounds on which the Court may review the Tribunal’s decision are those set out in s 476 of the Act.

Doing the best I can, it seems to me that the essence of the applicant’s complaints is that he does not accept the factual findings of the Tribunal, including its findings against him on the question of credibility.  The Tribunal gave full reasons for each of its specific findings of fact.  It considered the material submitted by the applicant and heard his evidence at a hearing, as I said earlier.  I should mention that the Tribunal’s findings against the applicant’s credibility nevertheless acknowledged the difficulties he faced in proving evidence of claims made by him.  So far as any question of unfairness in the procedures observed by the Tribunal is concerned, I can detect no element of unfairness at all. 

It is not for this Court to review all the questions of fact that were before the Tribunal.  All the Court can do is to see if the Tribunal committed an error of law.  In other words, this Court cannot, as it were, re-hear all the evidence of the applicant. This is a court of law, not a court that reviews all the facts.  I wish to make that clear to the applicant because he is not conversant with English and has no lawyer representing him at this hearing.

I rather gained the impression that the applicant has perhaps laboured under a misapprehension as to the role of the Court.  It seems that the applicant has thought that this Court can, as it were, review on all the facts the whole of his case, and this the Court cannot do.  In all the circumstances I discern no error of law hence the Court must dismiss the application.  So the application is dismissed.

Accordingly, the Court orders the applicant to pay the respondent’s costs of the proceeding.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart

Associate:

Dated:            23 December 1997

Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 December 1997
Date of Judgment:	23 December 1997