Demirol v Minister for Immigration and Multicultural Affairs

[2001] FCA 563

FEDERAL COURT OF AUSTRALIA

Demirol v Minister for Immigration & Multicultural Affairs [2001] FCA 563

GULHAN DEMIROL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 274 of 2001

KATZ J
10 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 274 of 2001

BETWEEN:	GULHAN DEMIROL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	10 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application be dismissed.

2The applicant pay the respondent’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 274 of  2001

BETWEEN:	GULHAN DEMIROL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	KATZ J
DATE:	10 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application for an order of review of a decision made by the Refugee Review Tribunal (“the RRT”).  By that decision, the RRT affirmed a decision which had been made by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs (“the delegate” and “the Minister” respectively).   The delegate’s decision had been that the present applicant, Ms Gulhan Demirol, who is a Turkish national of Kurdish ethnicity, was not entitled to the grant of a protection visa.

2. The procedural background to the application for an order of review, which application was lodged on 21 March 2001, is as follows: on 27 September 2000, the applicant arrived in Australia without any documents and was placed in immigration detention.  On 29 September 2000, the applicant applied for a protection visa.  On 4 December 2000, the delegate refused that application.  On 6 December 2000, the applicant applied for review by the RRT of the delegate’s decision.  On 13 March 2001, the RRT affirmed the delegate’s decision.

3. In her application for an order of review, which I infer was drafted without the help of a lawyer, the applicant stated, as the grounds of review of the RRT’s decision, the following:

   “Failure to apply the Convention Relating to the Status of Refugees

   Placing a greater emphasis on the whereabouts of the applicant’s husband instead of assessing the applicant’s situation as per the Convention as above mentioned.”

4. As well as referring to what was stated in the applicant’s application for an order of review to be the grounds of review of the RRT’s decision, I should also refer now to the existence of a document subsequently lodged with the Court, entitled “Particulars of Application”.

5. That document is a curious document in more than one respect.

6. There exists a pilot scheme, in which the Federal Court in New South Wales is involved, for the provision of independent advice to unrepresented applicants seeking review of RRT decisions.  That scheme contemplates an applicant’s being given advice by a lawyer and also contemplates that, if appropriate, the lawyer will provide to the applicant an amended application for an order of review, which amended application the applicant can then lodge with the Court.

7. It appears that, after the lodging of her application for an order of review, the applicant participated in that scheme and was given advice by a member of the New South Wales Bar.  Further, that barrister prepared, not an amended application for an order of review, as contemplated by the scheme, but the “Particulars of Application” document.  However, instead of providing that document to the applicant for lodging, the barrister took it upon himself (contrary, I would imagine, to the Barristers’ Rules) to lodge the document with the Court and to forward a copy of it to the Minister.  No doubt, the barrister was attempting to be of assistance in doing so.

8. In any event, the document does not contain particulars, in the accepted sense, of what had been stated in the application for an order of review to be the grounds of review of the RRT’s decision.  Instead, the document states (emphasis added):

   “1. The applicant claims that the information provided to the post of the Department of Immigration and Multicultural Affairs in Turkey by the mukhtar of the city of Elazig and by the Health Department in Elazig was false and that the Refugee Review Tribunal (“the RRT”) erred in not considering country information indicating that the Turkish authorities provide false information about Kurdish people in Turkey.  This could give rise to an error under s 476(1)(a) of the Migration Act 1958 (Cth).
   2. The RRT erred in not considering whether there is a real chance that the applicant faces persecution as a single woman returning to Turkey.  This could give rise to an error under s 476(1)(a) or 476(1)(e) of the Migration Act.”

9. In order to make more explicable both the second of the two matters stated in the application for an order of review to be the grounds of review of the RRT’s decision and the first of the matters stated in the so-called particulars of the application for an order of review, I should mention that it was the applicant’s case in support of her protection visa application that she was a married woman who had, until leaving for Australia in September 2000, lived all her life in Pilav Tepe village, near Karakocan in Elazig province, Turkey.  Until about October 1998, her husband, who had also lived all his life in Pilav Tepe, had been a farmer there.  However, at that time, he had been prohibited by the army from farming any longer.  Other villagers afterwards helped the family out and the husband did singing in the mosque or at other religious occasions.  Then, during February 2000, the applicant’s husband had been arrested by the army.

10. The applicant also stated early in the course of her attempt to obtain a protection visa that she had been unaware of her husband’s whereabouts since his arrest, had had no contact with him since that time and did not know if he was still alive.  However, during the conduct of the RRT’s review of the delegate’s decision, the applicant informed the RRT that she had recently become aware that her husband had travelled to England from Turkey in January 2001 and that he was seeking asylum there.

11. A difficulty which stood in the way of acceptance of the applicant’s case as I have outlined it above was that, in 1999, unsuccessful tourist visa applications made both by her and by her husband to the Australian Embassy in Ankara had stated that the applicants lived in Elazig city, the capital of the province of the same name.  Elazig city is at least two hours by road from Pilav Tepe.  Further, the husband’s application had stated that, for some years, he had been an officer in the health directorate in that city, a government agency.  Official documentation regarding the husband’s employment history had been supplied in support of his application.

12. It would appear that the inconsistency between the material to which I have just referred and the applicant’s claims before it caused the RRT to have inquiries made by the Australian authorities in Turkey.

13. Those authorities reported the results of inquiries which they had made, in about November 2000, both of the mukhtar of Elazig city, a local official responsible for keeping district records, and of the employer referred to in the husband’s tourist visa application.  The former had stated that the applicant and her husband were registered as having lived, for at least the last four years, at the address in Elazig city shown in the tourist visa applications, while the latter had confirmed the truth of the employment history stated in the husband’s tourist visa application and had also stated that the husband continued to work for it.

14. In response to the information supplied through the Australian authorities in Turkey, the applicant told the RRT that the information which had been supplied for the purpose of the tourist visa applications had been false and had been fabricated by a person who had, for a fee, undertaken to obtain Australian visas for her and her husband.  She also told the RRT that her husband had never worked for the health directorate.  Further, according to the RRT’s statement of findings and reasons, the RRT asked her, at an oral hearing which it held into her application for review of the delegate’s decision, why the mukhtar and the health directorate would have provided false information to the Australian authorities.  She replied, “[I]t is because she is Kurdish and they do not like Kurds”.

15. I interrupt my recitation of the course of Ms Demirol’s application for review before the RRT by mentioning that, before me today, Ms Demirol repeated the matters to which I have just referred.  She again asserted the falsity of the information in the tourist visa applications and directed my attention to some particular documents supplied in support of the tourist visa applications, which documents, she said, had been fabricated.  She told me that her husband had never worked for the health directorate and asserted that the information supplied by the authorities in Turkey had been false and had been supplied falsely because she was Kurdish.  It was because Ms Demirol was appearing before me in person that I was prepared to permit her to repeat in substance the case which she had made before the RRT in connection with the matters to which I have just referred.

16. I return now to my recitation of the course of the proceeding before the RRT.  Confronted with the applicant’s case on the one hand and the information obtained by the Australian authorities from the mukhtar and the health directorate on the other, the RRT preferred the latter to the former and stated,

    “The Tribunal is therefore satisfied that in November 2000, and for some years prior to that, the Applicant’s husband was employed by a government agency in the provincial capital. The Tribunal is satisfied that (notwithstanding that the Applicant and her husband may have spent time in their home village) they were effectively settled in Elazig and had been for some years.  It follows that at the beginning of February 2000 he was not living and working in the village (2 1/2 hours away) and that he was not arrested in the village in February 2000….”

17. Based on that and other findings which it made, the RRT then affirmed the delegate’s decision.

18. I turn now to the question whether the RRT has committed any judicially-reviewable error in the making of its decision.  I am, of course restricted by operation of law to that particular inquiry.  It is not open to me to stand in the shoes of the RRT and to make a fresh decision on the question whether Ms Demirol is a refugee within the meaning of the Refugees Convention.  In the course of what she had to say to me today, naturally finding it difficult, as anyone in her situation would, to limit herself to those matters with which I can alone deal, Ms Demirol referred to many matters going to the merits of her protection visa application.  As I have said, I am unable to deal with those matters referred to by her.  

19. So far concerns the matters stated in the applicant’s application for an order of review as the grounds of review of the RRT’s decision, it is only necessary that I say of them that no error on the RRT’s part is disclosed by its placing much emphasis in its statement of findings and reasons on the question of the applicant’s husband’s whereabouts, since his whereabouts were a central part of the applicant’s case before the RRT.

20. So far as concerns the matters stated in the “Particulars” document, in spite of their being expressed merely in terms of possibility, I will treat them as alleging the judicially-reviewable errors referred to in them.

21. The first question is, therefore, whether the RRT “erred in not considering country information indicating that the Turkish authorities provide false information about Kurdish people in Turkey” and, if so, whether that enlivened the ground of review set out in par 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”).

22. Of course, the RRT could hardly have erred in not considering the country information referred to if no such country information existed.  I can find in the evidentiary material which is before me and which was before the RRT no country information “indicating that the Turkish authorities provide false information about Kurdish people in Turkey”.  I have also read, so far as they are in evidence before me, all those submissions made by the applicant’s solicitors on her behalf, both to the Minister’s Department and to the RRT.  She was represented by those solicitors, who are experienced in immigration matters, throughout the administrative process.  I can find in those submissions no reference to any country information to the effect “that the Turkish authorities provide false information about Kurdish people in Turkey”.

23. The allegation of judicially-reviewable error presently under discussion therefore fails at the threshold and I need not trouble myself as to the legal consequences of the RRT’s not having dealt in its statement of findings and reasons with such information, assuming such information to have existed.

24. The second question is whether the RRT “erred in not considering whether there is a real chance that the applicant faces persecution as a single woman returning to Turkey” and, if so, whether that enlivened the grounds of review in either par 476(1)(a) or par 476(1)(e) of the Act.

25. Doing the best I can to understand the allegation of error, there must be implicit in it the submission that, for the purposes of the Refugees Convention, women not living with their husbands constitute in Turkey a “particular social group”.

26. As with the first allegation of judicially-reviewable error, I can find nothing in the material which is before me and which was before the RRT evidentiary of women being persecuted in Turkey by reason of their not living with their husbands, nor, so far as I can tell from the material which is before me and which was before the RRT did the applicant’s solicitors or the applicant herself ever seek to make such a claim before the RRT.

27. The allegation of judicially-reviewable error presently under discussion therefore also fails at the threshold and I need not trouble myself as to the questions whether women not living with their husbands do, for the purposes of the Refugees Convention, constitute in Turkey a “particular social group” or whether the RRT, by its failure to consider the matter presently under discussion otherwise enlivened the grounds of review in either par 476(1)(a) or par 476(1)(e) of the Act.

28. The application for review must be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             25 May 2001

The applicant appeared in person.
Counsel for the Respondent:	S McNaughton
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 May 2001
Date of Judgment:	10 May 2001