Demir, Murat v Minister for Immigration & Multicultural Affairs
[1996] FCA 1158
•23 DECEMBER 1996
CATCHWORDS
MIGRATION - Migration Act 1958 - protection visas - application for review under s476 - applicant a Turkish seaman of Kurdish origin who based claim for refugee status on "ethnicity" and deserting ship - interpretation of "well-founded fear of persecution".
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 ss65, 412, 476, 496; sub-ss36(2), 476(1), 476(2); paras476(1)(d), 476(1)(e), 476(3)(d), 476(3)(e)
P. Mathew, "Implementing Australia's International Obligations towards Refugees", Agenda, (1996) 3 (4) 471
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)) 136 ALR 481
Raj v Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Davies J, 18 July 1996)
Velauther Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
MURAT DEMIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
WAG62 OF 1996
LEE J
PERTH
23 DECEMBER 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. WAG62 OF 1996
B E T W E E N: MURAT DEMIR
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: LEE J
DATE OF ORDER: 23 DECEMBER 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The application be dismissed with costs.
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 )
GENERAL DIVISION ) NO. WAG62 OF 1996
B E T W E E N: MURAT DEMIR
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
CORAM: LEE J
DATE : 23 DECEMBER 1996
PLACE: PERTH
REASONS FOR JUDGMENT
This is an application pursuant to s476 of the Migration Act 1958 ("the Act") for review of "a judicially reviewable decision" made by the Refugee Review Tribunal ("the Tribunal") which "affirmed" the decision of a delegate of the respondent ("the Minister") to refuse to grant a protection visa to the applicant.
Pursuant to s65 of the Act the Minister, (or a delegate of the Minister appointed under s496 of the Act), is to grant a visa to an applicant if satisfied that the criteria which apply to such a visa have been satisfied. Pursuant to sub-s36(2) of the Act one of the criteria applicable to a protection visa is that the applicant is to be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 5 of
the Act defines the terms "Refugees Convention" and "Refugees Protocol" as follows:
"'Refugees Convention' means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951;
'Refugees Protocol' means the Protocol relating to the Status of Refugees done at New York on 31 January 1967".
In Schedule 2 of the Migration Regulations, Item 866 thereof also prescribes criteria for protection visas, one of which (Item 866.211) repeats the effect of s65 and sub-s36(2) by prescribing as a criterion that the Minister be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, a term defined in Item 866.111 to include the Refugees Protocol.
Under the Refugees Convention and Protocol, protection obligations are undertaken by a signatory to the Convention to a 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."
As explained by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, a fear
of persecution is well-founded if the material presented shows that there is a "real chance" that persecution may occur if the person were returned to the country of nationality.
By definition a chance of persecution cannot be proved as a probability. The question to be answered is whether a risk of persecution is shown to be present and whether the risk is such that it would be inconsistent with the purpose and objects of the Refugees Convention to deny an applicant relief from that risk.
The applicant is a citizen of Turkey and is 26. He was born in Istanbul of Kurdish parents and lived in Istanbul in a Kurdish neighbourhood. He is a seaman. On Boxing Day 1994 whilst the vessel on which the applicant was employed was berthed at an Australian port, the applicant deserted the vessel with the intention of remaining in Australia and thereupon became an unlawful non-citizen under s14 of the Act. At that time he had been a seaman for approximately four years. In March 1995 the applicant was taken into custody by officers of the Minister's department. Whilst in detention the applicant applied for a "Protection Visa (866)". On 3 April 1995 the applicant was granted a bridging visa pursuant to s73 of the Act and released from custody pending determination of the application for the protection visa.
In his application for a visa the applicant
expressed fear of arrest and torture by Turkish police if returned to Turkey. The applicant stated that he knew a number of Kurdish people who had been arrested and tortured by Turkish police for no reason other than being Kurdish and being presumed by police to be sympathetic to political movements which sought the establishment of a separate Kurdish State. The applicant feared that if he were returned to Turkey he would be at risk of great harm because on becoming aware that he had "sought to stay away" from Turkey, the Turkish police would suspect that he was a member of such a movement, namely, the Separatist Kurdish Workers' Party (PKK).
On 4 October 1995 the visa application was rejected by the Minister's delegate. On 17 October 1995, pursuant to s412 of the Act, the applicant applied to the Tribunal for review of the delegate's decision. In February 1996 the Tribunal received oral evidence from the applicant given through an interpreter. The Tribunal had before it written submissions prepared on the applicant's behalf which referred to an insurgency fomented by the PKK in Turkey and to the enactment by the Turkish State of anti-terrorism and state of emergency laws which granted wide powers to police and security forces.
The Tribunal made its decision on 17 April 1996. It was not contended that the decision of the Tribunal which "affirmed" the decision of the Minister's delegate was other than a fresh decision grounded on findings made by the Tribunal.
Neither a transcription of the applicant's evidence to the Tribunal nor of the tape-recording of an interview with the applicant conducted by officers of the Minister's Department was in the material put before the Court but it appears from the reasons of the Tribunal that a contributing factor to the applicant's fear of persecution was the belief that a deserting Turkish seaman who had been returned to Turkey recently, had been detained, tortured and executed.
The Tribunal stated that the applicant's claim for refugee status rested on his "ethnicity" and the fact that he "jumped ship". The Tribunal noted that the abuse of human rights by the imposition of torture and the restriction of liberty did occur in Turkey had caused international observers to express concern in respect of those events. The Tribunal accepted that Kurds as a racial group were disadvantaged in Turkey and that serious harm had befallen political activists who supported the Kurdish cause.
However, the Tribunal found that whilst a person of Kurdish origin per se may experience some degree of discrimination, such a person would not be subjected to persecution. It is to be inferred from the Tribunal's reasons that the Tribunal was not satisfied that the applicant's circumstances so differed from those of an ordinary person of Kurdish origin that it should be concluded that there was a real chance that the applicant would be persecuted.
With regard to the possible consequences the applicant may face as a deserter from his vessel, the Tribunal said as follows:
"The applicant's evidence about penalties meted out to shipjumpers was vague and inconsistent. He knew nothing of the individual circumstances of those shipjumpers. On the basis of country information cited above the Tribunal concludes that any penalties imposed on shipjumpers known to the applicant arose due to their particular circumstances. In considering the applicant's own circumstances and the lack of information that ship-jumpers are punished for the act of jumping ship, leads to the conclusion that there is not a real chance he faces persecution. Even if he were to face serious harm arising out of his shipjumping there is no material to indicate that he would be differentially punished for a Convention reason.
The country information available to the Tribunal makes no mention of applicants for refugee status being persecuted as a consequence of having made a claim for asylum. In view of the significant numbers of Turks who have gone overseas and the international focus on human rights abuses in Turkey, the Tribunal would expect that any instances of persecution of suspected asylum-seekers would be reported. The process of applying for refugee status is confidential and would only become known if the applicant were to disclose it. In assessing all the relevant material the Tribunal finds there is not a real chance that the applicant faces a real chance of persecution as a consequence of having applied for refugee status."
The Tribunal did not identify how the evidence of the applicant on penalties imposed on "ship-jumpers" was "vague and inconsistent". Apparently, the Tribunal accepted that it was possible that a recently repatriated "ship-jumper" known to the applicant, had suffered the "penalties" described, namely, torture and execution but made the assumption, expressed as a conclusion, that the "particular circumstances" of the deserter had caused such "penalties" to be imposed. What circumstances the Tribunal had in mind that would justify such consequences or make them other than acts of persecution for a Convention-reason is not made clear in the Tribunal's reasons. Contrary to the Tribunal's statement, the material before the Tribunal indicated that if the applicant did face serious harm arising out of his "ship-jumping", it would be for a Convention-reason, namely, political opinion or membership of a social group. If such an event did occur it would have been of the utmost relevance in assessing whether the applicant's fear of persecution was well-founded.
The applicant did not claim that persons of Kurdish origin would be "differentially punished" under the laws of Turkey if they deserted vessels on which they served as seaman. The applicant claimed that Turkish police would act unlawfully to inflict torture, or worse, upon Kurds suspected by police of sympathizing with or promoting the objects of the PKK and that a deserting Kurdish seaman would be likely to be so regarded by Turkish police and to become a target for such illegal attention.
Whether the Tribunal addressed that question and found that the applicant's fear of persecution was not well-founded because it was too far-fetched or fanciful for such a consequence to befall a Kurdish "ship-jumper", is not clear. The Tribunal assumed that the applicant's application for refugee status in this country would not be known by Turkish police upon the return of the applicant to Turkey. That may have been an optimistic view given that the information before the Tribunal, obtained from Turkish sources, stated that a person such as the applicant, repatriated by a foreign state, would be subject to an "administrative investigation" by Turkish authorities upon return. Furthermore, the applicant's fear was not that the Turkish police would have knowledge of his application for refugee status but that because he was a Kurd who had been repatriated after deserting his vessel they would presume he had sought asylum and would deal with him accordingly.
However, the applicant did not challenge the Tribunal's reasoning on this issue and it is unnecessary to examine it further.
The ground for the applicant's application for review of the Tribunal's decision appears to rely on the terms of para476(1)(e) of the Act, namely, that the Tribunal incorrectly interpreted, or incorrectly applied, the terms of the Act when determining whether the applicant had a well-founded fear of persecution within the meaning of that term as used in the Refugees Convention. The particulars of the ground supplied by the applicant were as follows:
"1.The Tribunal misdirected itself as to what constitutes a well founded fear of persecution in so far as it required that the same be constituted by:-
(a)a 'desperation' to leave the country of origin;
(b)a 'strong fear' for personal safety or well-being in the country of origin;
or
(c)a 'depth' of fear of persecution.
2.The Tribunal misdirected itself at law in failing to address or directing itself not to take into account the following factors:-
(a)that there was a real chance that a political opinion contrary to that of the Turkish Government would be ascribed to the Applicant as a consequence of his membership of a particular social group, i.e. his Kurdish origin;
(b)evidence of discrimination against Kurdish people in Turkey;
(c)evidence of continuing abuses of the human rights of Kurdish people in Turkey; and
(d)evidence of a 'present dispute' between Kurds and other Turkish nationals which is leading to 'community polarisation' which potentially places even a 'moderate Kurd' in a 'less favourable position'."
Sub-section 476(2) of the Act, which in its terms may suggest that the list of grounds set out in sub-s476(1) is not exhaustive, states that neither a claim that a breach of the rules of natural justice occurred in connection with the making of a decision, nor that a decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power, is a ground upon which an application for review of the decision may be made to this Court under sub-s476(1).
Although at first sight it may be thought that a right of review on the ground that a decision is irrational is fundamental to the process of review of administrative decisions and to the maintenance of the integrity of the administrative process, any decision so flawed is likely to be subject to review on the ground provided by para476(1)(e) in any event. That is, sub-s476(2) is to be construed not as expunging common law principles embodied in the ground for review contained in para476(1)(e) but as the denial of a separate ground for review of the unreasonableness of an exercise of power not included within para476(1)(e). (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-359; Raj v Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Davies J, 18 July 1996 at pp9-10.)
Paragraphs 476(3)(d), (e) provide that the reference in para476(1)(d) to an improper exercise of power is to be construed as not including a reference to taking an irrelevant consideration into account in the exercise of a power, or failing to take a relevant consideration into account in the exercise of that power. Again, the particular facts relating to the making of a decision may show that conduct to which either para476(3)(d) or (e) would apply may involve an error of law to which para476(1)(e) refers.
Although the words used in item 2 of the particulars refer to the Tribunal not taking certain factors into account, it is apparent from the terms on which the ground for review is expressed in the application that para476(1)(e) is the ground for review relied upon by the applicant.
The correct interpretation, and correct application, of the law is as set out in Chan and as further explained by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 in respect of the law as it now stands.
The Tribunal was required to determine whether it was satisfied that the applicant had a well-founded fear of being persecuted - in this case for reasons of race or political opinion - and owing to that fear was unwilling to return to his country of nationality.
The delegate of the Minister was satisfied that the applicant did fear harm or mistreatment for "Convention-based reasons", namely, race or political opinion, if returned to Turkey. Although, the Tribunal did not set out in its reasons that it was satisfied that the applicant actually feared being persecuted if returned to Turkey, such a finding is implied. It is in respect of the Tribunal's decision that it was not satisfied that the fear of the applicant was well-founded that the application for review is made.
With regard to the first particular of the ground of review relied upon by the applicant, the relevant part of the Tribunal's reasons read as follows:
"The applicant, along with other crew members, experienced difficulties with the ship's captain. He left his ship without permission and has not returned. Although he cited Australia's human rights record as an instigating factor for jumping ship it is apparent that he experienced particular difficulties which are not Convention-related on his last voyage. The fact that he passed up numerous earlier opportunities to seek asylum indicates a lack of desperation to leave Turkey.
His significant delay in applying for refugee status, despite opportunities he had to do so in various countries since the issue of his seaman's passport indicates to the Tribunal that he did not have a strong fear for his personal safety or future well-being in Turkey.
Once it was accepted that the applicant had a fear of being persecuted for a Convention-reason, the question whether that fear was well-founded required the Tribunal to ascertain whether it was satisfied that there was a real chance that the applicant would suffer the persecution he feared. Whether an applicant had a prior opportunity to seek the protection of another country before seeking asylum in Australia is unlikely to assist the Tribunal in determining whether there is a real chance that persecution may be suffered by that person if asylum is denied. No reliance was placed by the Tribunal on the so-called principle of "first asylum". (See: P. Mathew, "Implementing Australia's International Obligations towards Refugees", Agenda, (1996) 3 (4) 471 at 476.) There may be many reasons why a person who now fears persecution did not take earlier opportunities to seek asylum outside the country of nationality. Circumstances may have changed including the attitude of the applicant to changing events.
The answer to the question whether the Tribunal is satisfied, upon the material presented, that there is a real chance that an applicant will be persecuted, will not be provided by considering subjective states of mind of the applicant, such as the strength of the applicant's fear, or the extent of the applicant's desperation to leave the country of nationality, although those matters will be relevant to the threshold questions whether the applicant is a person who actually fears persecution and whether, owing to that fear, is unwilling to return to the country of nationality. I do not understand the comments of Heerey J in Velauther Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, to which the Tribunal referred, to express another view.
However, the Tribunal did not ground its decision upon a finding that the applicant did not have a "strong fear for his personal safety or future well-being in Turkey" and, indeed, as stated above, the Tribunal accepted that the applicant was a person who feared persecution. The Tribunal was not satisfied by the material that a person of Kurdish "ethnicity" need fear for that reason, or for the reason of political opinion imputed to such people by authorities in Turkey, persecution in the form of harassment, detention or torture by such authorities.
The Tribunal acknowledged that there was considerable evidence that a person of Kurdish origin was disadvantaged in Turkey but, it was said, there was no material that indicated that the applicant would face "adverse consequences" by reason of his race or political opinion.
In submissions prepared for the applicant and included in the material before the Tribunal, the Tribunal was referred to reports from external sources such as United States of America State Department and Amnesty International which outlined the extent of the conflict between the Turkish State and Kurdish organizations engaged in terrorist activities, in particular the PKK. The reports referred to the use of emergency legislation to counter the insurgency and the widespread use of torture by Turkish police, particularly upon people believed to have knowledge of illegal groups such as the PKK or of the political organization Pro-Kurdish Democracy Party (DEP or HADEP). In the US State Report of 1994 it was stated that 26 members of the DEP (HADEP) had been murdered in the past two years and that according to the Human Rights Foundation of Turkey, 316 civilians had been assassinated in the first ten months of 1994, of which many were leaders or prominent members of the Kurdish community, physicians, human rights monitors, local politicians and members of the DEP. The report noted that according to human rights organizations, there was reason to believe that Turkish authorities were involved in those events either directly or indirectly.
The Tribunal did not refer to this material but did accept that "serious harm" could befall Kurdish persons who espoused political opinions unacceptable to Turkish authorities. In essence the Tribunal found that it was not satisfied that the applicant was a person who had any involvement in political matters or that Turkish authorities would consider that the applicant was such a person.
According to the principles set out in Wu at 497-498 (although that case concerned an application for review under the Administrative Decisions (Judicial Review) Act 1977 and not a review under s476 of the Act) if a Tribunal derives particular assistance from some of the material put before it, with the effect that the Tribunal is not satisfied by other material that there is a real chance that persecution may occur, no error of law will be revealed in the Tribunal proceeding. That is to say, if such a course is followed by a Tribunal, it cannot be said that the Tribunal has determined on the balance of probabilities that there is not a real chance that persecution will occur. Rather, it should be concluded that the Tribunal has not been satisfied by the material that there is such a chance having had regard to particular weight it has given to some of the material.
If the statements of the Tribunal are measured according to those principles, it cannot be said that the reasons of the Tribunal reveal that the Tribunal failed to observe the requirements of the Act.
The Tribunal recited and, therefore, understood that Australia's obligations under the Refugees Convention depended on whether it could be said there was a real chance that the applicant would be persecuted upon return. Having had regard to the material before it, some of which, apparently, was given more weight by the Tribunal than other material, the Tribunal was not satisfied that there was a real chance that the applicant would be persecuted in Turkey because of his "ethnicity" or political opinion. Such a process of reasoning does not depart from the requirements of the Act as explained in Wu.
The application must be dismissed.
I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.
Associate:
Date:
APPEARANCES
Counsel for the Applicant: G M G McIntyre
Solicitors for the Applicant: Andrée Horrigan
Counsel for the Respondent: P R Macliver
Solicitors for the Respondent: Australian Government Solicitor
Date of Hearing : 25 October 1996
Date of Judgment : 23 December 1996
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