Gedik v Minister for Immigration and Multicultural Affairs

[1999] FCA 778

FEDERAL COURT OF AUSTRALIA

Gedik v Minister for Immigration & Multicultural Affairs [1999] FCA 778

MIGRATION – application to review decision of the Refugee Review Tribunal affirming a decision to refuse a protection visa – whether any reviewable error of law made by the Tribunal in its assessment of the applicant’s credit and in the fact finding process – application dismissed – no point of principle involved.

Prassad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21

Matter No. N 71 of 1999

GAZI GEDIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J
SYDNEY
3 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 71 OF 1999

BETWEEN:	GAZI GEDIK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	3 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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 71 OF 1999

BETWEEN:	GAZI GEDIK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	VON DOUSSA J
DATE:	3 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought under s 475 of the Migration Act 1958 (Cth) (the Act) for the review of a decision by the Refugee Review Tribunal (the RRT) made on 5 January 1999. The RRT affirmed an earlier decision not to grant a protection visa to the applicant. The applicant claimed that he was a person to whom Australia owed protection obligations on the ground that he was a refugee within the well known definition contained in Article 1A(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.

2. The applicant, who is a citizen of Turkey, arrived in Australia on 21 February 1997.  On 14 April 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 18 February 1998 a delegate of the Minister refused to grant the protection visa and the matter then proceeded to the RRT with the outcome that I have mentioned.

3. The applicant was, at the time of the application, a thirty-four year old Kurdish man.  He is of the Alevi faith.  He is married with two children.  His wife and children remain in Turkey.  The applicant travelled to Australia using a passport in the name of Lokman Sahin, containing a tourist visa for Australia issued in Istanbul on 24 December 1996.  The applicant’s application for a protection visa indicates that he lived at two different addresses in Istanbul from 1986 until his departure from Turkey in February 1997.  According to his application, the applicant attended primary and high school in Elazig, finishing school in 1979.  The applicant worked as a chef in two different restaurants from 1986 until 1997.

4. In his visa application the applicant stated that he became involved in left wing politics whilst at school in 1979 and became a supporter of an organisation referred to throughout the information before the Court as the TKP-ML, which stands for the Turkish Communist Party, Marxist Leninist.  At least at the time when the applicant asserts that he became a supporter of that organisation it was an illegal one and it may still be.  He said he also joined an organisation called the Karacokan Democratic Culture Association.  This was an association where meetings and other cultural events occurred, and was used by the TKP-ML as a front.

5. The applicant stated that because he is a Kurd he was not allowed to speak his native tongue nor act in the way he wanted.  He said he had to endure injustices because of his ethnicity.  He first encountered trouble with the police because of his activities in 1979 when the police raided a meeting of the TKP-ML at which he was present.  He says he was hit and kicked on that occasion.  In the period that followed he participated as a supporter or TKP-ML by distributing pamphlets and helping organise fundraising functions, and he used to attend talks about political issues.

6. The applicant alleged two significant incidents in support of his claim for refugee status.  The first of these was said to have occurred in 1995.  He said that at the time he was living in Istanbul in a predominantly Kurdish suburb.  He was with a group of about 400 people commemorating the anniversary of the death of Ibrahim Kaypakkaya, who was the original leader of the TKP-ML.  The anniversary date was 18 May.  The group was marching in the suburb of Maltepe, distributing pamphlets about Kaypakkaya and carrying banners and pictures of him.  The applicant says that police broke up the march and in doing so they attacked the participants with truncheons and a number, some sixteen of them, were apprehended and held in custody for about six months although they were not charged.  During that time the applicant says that he was seriously abused and persecuted by the police and by the authorities who held him imprisoned.

7. The second incident asserted occurred in 1996.  The applicant alleges that he was marching in a May Day celebration officially permitted by the police in the suburb of Kadikoy in Istanbul.  There were some 10,000 people apparently involved in that march.  The applicant said that there were many Kurdish as well as Turkish people participating.  As the march progressed, the police tried to break up the gathering using truncheons.  Some fought with the police.  There was fighting between the police and a number of groups.  The applicant says the fighting became widespread and eventually the police brought in armoured personnel carriers and used high pressure water hoses.

8. At one point the police opened fire on marchers.  The applicant said in his original application that two TKP-ML marchers were killed as was one other person.  The applicant said he was arrested on that occasion with some of his friends; indeed some 500 people were arrested.  He was taken to the local police station, questioned by the police and hit by them.  He said that the police must have had a file on him because they said he was doing the same thing that he had done in 1995.

9. The police checked his identification card and abused him for being an Alevi Kurd.  He says he was held at the police station for three days and then released.  The applicant says that he became fearful for his well being following that event and decided to leave Turkey.  He said he applied for a passport but did not receive any response concerning his application, and he attributed that to the fact the Turkish authorities will often not give passports to Alevi Kurds.

10. The applicant said he was eventually able to obtain a passport by paying US$6000 to a person who arranged for him to get a false passport and false visa.

11. The applicant informed the RRT that if he returned to Turkey he would still participate in TKP-ML activities as he firmly believed in what that party was doing.  He feared that if he returned to Turkey he would face regular interrogation, torture and other persecution for reasons which were said to be his religion, his ethnicity and his political opinion.

12. The RRT published its reasons for decision which set out at length the material before it, including the claims and evidence given by the applicant and two witnesses who were called before the RRT at his request, the country information, and the outcome of inquiries which the RRT itself made.  The reasons analyse that material in a very thorough and comprehensive way.  The RRT considered much information about Turkey from country reports that were available to it.  Extracts from those reports included observations of the kind which appeared in one magazine entitled, “The Dirty War In Turkey”, which said that it was not just the PKK and its supporters which were targets of the government’s intimidation.  Any pro Kurdish person in Turkey or abroad was liable to be labelled as a separatist or terrorist, and this was true, not only of Kurdish MPs, human rights activists and journalists, but also teachers, lawyers, shepherds and villagers.  According to a report from the UNHCR in 1994, the Turkish security forces targeted not only hardened PKK guerillas, but any Kurds suspected of supporting or even sympathising with PKK aims (and I interpose to say that there was some evidence that the TKP-ML was a body that had sympathies with the PKK).

13. It was apparent from the information that is summarised by the RRT that people of Turkish origin were likely to be so labelled by the authorities in Turkey and that if suspected persons were taken into custody in police stations or gendarmeries that they were at risk of torture, especially in the south-eastern and major western cities including Istanbul, Ankara, Izmir and Adana.

14. Against this background the RRT turned to the facts of the case before it to assess the claim of the applicant.  The RRT made many findings in the course of doing so.  Pertinent ones are summarised in written submissions that have been filed by the respondent, and I use that summary as a convenient reference point.  In my opinion, the summary accords with the reasons for decision.

15. The RRT found that the applicant was, as he asserted, an Alevi Kurd born in the south-east of Turkey, but that he had lived in Istanbul since the mid 1980s.

16. The RRT made findings about the travel documents used by the applicant on his journey and entry to Australia.  It held that the applicant left Turkey on a passport issued in his own name and that he entered Australia on a false passport issued in the name of Lokman Sahin, which contained his photograph and an Australian visa.  This finding was based on the fact that the applicant’s protection visa, which was completed in Australia, made reference to a passport identified by number, in the applicant’s name, which had also been used in Turkey unsuccessfully to apply for a temporary business entry visa in the applicant’s name for Australia, and also on the fact that the false passport used by the applicant to enter Australia did not have a stamp indicating that it had been used on the applicant’s departure from Turkey.

17. The RRT considered that the applicant’s inability to explain how he, or someone else in Australia, knew the number of a passport issued in his name when he filled out his protection visa application, when he repeatedly claimed that he had never seen or received such a passport, indicated a lack of honesty that raised doubts about his credibility generally.

18. I will return to the findings of credit made in relation to the passport because the appellant contends before this Court that the harsh findings made on the question of credit has diverted the RRT from a proper consideration of the matters that were put before it by the applicant.  It is said that the way in which the question of credit was dealt with by the RRT constituted an error of law, and a failure to comply with the obligations resting on the RRT under s 420 of the Act.

19. The RRT held that the applicant had given inconsistent evidence about his employment in Turkey, but it felt able to find that the applicant had worked at the restaurant indicated in his protection visa application up until the time of his departure in February 1997.  The RRT held that the applicant had lived at the same address in Istanbul from 1990 until he departed, and his family still live there.

20. The RRT, after canvassing the evidence, concluded that it was not satisfied that the applicant had had any involvement with the political party TKP-ML prior to 1993.  This finding was based primarily upon the RRT’s assessment that the applicant lacked knowledge about the party and its philosophy and also on the evidence of a witness that was brought to the RRT by the applicant who said that the applicant’s active political involvement commenced in 1993.  It was also based on the RRT’s assessment that it was implausible that the applicant could have avoided detention if his TKP-ML activities over fourteen years prior to 1993 were as he claimed them to have been.

21. The conclusion reached about the lack of political involvement with the TKP-ML prior to 1993 also led the RRT to conclude that the applicant had not been mistreated by the police whilst he was at high school in 1979.  The RRT rejected claims made by the applicant in respect of a harassment of his family home whilst he was a child.  He had said that the police raided the house on almost a daily basis.

22. Whilst the RRT made adverse findings on the applicant’s credit and had doubts whether he had any involvement at all with the TKP-ML, it expressed its view that the RRT should give him the benefit of the doubt in finding that from 1993 onwards he had had some involvement with the party, but found that that involvement was not greater than of a very minor nature.

23. The RRT, in the course of the hearing, had informed the applicant that it was sceptical of his evidence about the 1995 incident, saying to him that the RRT had been unable to confirm in its researches that any incident had occurred at that time which resulted in the arrest and detention of a number of people.  After the hearing the RRT made further inquiries, but was still unable to find any evidence of such an event.  In the absence of any report of a demonstration, the RRT concluded that the event did not occur and the applicant was not detained at all by the police in 1995. 

24. The RRT was however, prepared to accept that the applicant was arrested for rioting at a march in 1996.  In respect of that incident, the RRT had been able to confirm through independent country reports and other media information that there had been a May Day march involving 10,000 people which did lead to the arrest of some 500 people.

25. The RRT noted the evidence of the applicant that he had not been of further interest to the authorities after the event in May 1996.  The RRT considered that the lack of interest was borne out by the fact that the applicant had been able to depart from Turkey on a passport in his name (as it held was the case) and further by the fact that he had continued to work at the same job and live at the same address apparently without hindrance from the police.

26. As the applicant was of no interest to the authorities when he left Turkey, the RRT did not accept that his previous political involvement would give rise to any well founded fear of persecution if he were to return to Turkey.  The RRT did not accept that he would be of interest to the Turkish authorities as a result of any activities that he might have undertaken in Australia.  It did not accept a claim made by him at the hearing, and subsequently, that the authorities in Turkey had been questioning his family about his whereabouts, or that the arrest of his brother would lead to the applicant himself being a person of interest to the Turkish authorities if he were to return.

27. The RRT assessed as remote and insubstantial the prospects that the applicant would face persecution as a result of the Turkish authorities adverse interest in his brother.  The RRT also assessed as remote and insubstantial the prospect that the applicant would attract attention of the Turkish authorities if he returned to his low level of involvement with the TKP-ML.

28. There was apparently some suggestion in the course of the hearing that the applicant might be subjected to punishment if he were to return using his false passport.  The RRT was of the view that if that occurred any punishment would be by reason of a breach of the criminal law and not for a Convention reason.  (On the findings that the RRT made, it would follow that the applicant was in possession of his own passport on which he left the country, and could presumably return without committing a passport offence).

29. The RRT also addressed the question of whether by reason of his ethnicity as an Alevi Kurd, he was at such a risk that there was a real chance of persecution by reason of his race or religion.  Not all Alevi Kurds in Turkey were equally at risk and given that the applicant had not lived in the south-east part of Turkey for many years and given that he had never come to the adverse attention of the Turkish authorities as a result of his Kurdish ethnicity or Alevi religion, the RRT was not satisfied that the applicant had a well founded fear of harm on either of those bases.

30. The RRT also noted in relation to the 1996 incident that in so far as the police may have taken action against a number of those who were involved in the event, they apparently did so because of the riotous behaviour of the crowd and not by reason of any particular ethnicity or political opinion of those who were arrested; it will be noted that the march itself had in the first instance been an authorised one.

31. Against those findings, this application for review is now brought.  This morning, the applicant through his counsel filed amended grounds for review.  Detailed written submissions were also filed in advance of the hearing.  In opening the applicant’s case, counsel said that review was sought on the grounds specified in paragraphs 476(1)(a) and (e) of the Act.

32. The written submissions on the applicant’s behalf commence with a reference to paragraph 420(2)(b) of the Act.  Section 420 is a section which deals with the way in which the RRT is to operate.  Subsection 420(1) required the RRT in carrying out its functions under the Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  Subsection 420(2) provides that the RRT in reviewing a decision is (a) not bound by technicalities, legal forms or rules of evidence and (b) must act according to substantial justice and the merits of the case.

33. The reference to paragraph 420(2)(b) and a reading of the written submissions, aided by reference to the amended grounds for review, show that in essence the applicant is alleging that there has been a breach of natural justice in that the applicant was not given adequate opportunity to comment on some of the matters upon which the RRT acted to draw the adverse conclusions that it did, and that it arrived at conclusions which were not compelled by the evidence.  Indeed, on one reading of the written submissions, it could be thought that the applicant goes so far as to contend that the ultimate result was unreasonable having regard to the evidence, and further support for that possible construction is given by the fact that Prassad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 is cited. In that case a decision of the Minister under the Act was overturned on the grounds that relevant matters had not been taken into account and that the decision was unreasonable.

34. Counsel for the applicant, however, acknowledged that the grounds of failing to take into account a relevant matter and unreasonableness are now not grounds that are available in this Court (see s 476(2)).  Nevertheless, the applicant’s counsel relied on some of the reasoning in Prassad to support a submission that the conclusions reached by the RRT were not compelled by the evidence.

35. This Court is not permitted under s 476(1) to embark upon a review of the facts or the merits of the case.  The facts must be found to enable a decision to be made on an application for refugee status, but the fact finding function is given by the Act to the Minister’s delegate and on review to the RRT.  Although counsel for the applicant has been eloquent in his attempt to bring the matters of complaint which he raises under one or other of paragraphs 476(1)(a) and (e), in my opinion the challenge which has been mounted against the RRT’s decision, when analysed, amounts to no more than a comprehensive attack upon the fact finding process and the facts found by the RRT.  As such it amounts to an attempt to have a review on the merits.

1. The reliance on s 420 of the Act does not provide an alternative route by which this Court can undertake a review on the merits, nor can it be used as a way of circumventing the limitations on the Court’s jurisdiction imposed by the provisions of s 476(1).  I refer generally to what was said by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at paras 47 to 52.

2. I turn now to the applicant’s written submissions.  I propose to address them, and a number of the oral submissions made by counsel, both to answer them and to demonstrate that they do no more than challenge findings of fact.

3. The applicant through his counsel is most critical of the findings that were made in respect of the applicant’s credit based on the passport.  It is said that firm findings having been made on that topic, the RRT then over hastily proceeded to decide other issues that were important to the applicant in a way adverse to him.  It is said that the RRT actually went “on a wild goose chase” contrary to s 420 in reaching some of the findings that were derivative from the finding on credit.  Counsel said that the RRT should not have rushed so quickly into determining various questions against the applicant on the ground that he lied about his passport, because there were alternative interpretations of the evidence available.

4. Counsel then suggested possible alternative interpretations of the evidence on a number of topics.  The alternative interpretations particularly in relation to the passport were at the best speculative and, in my view, were not ones that were likely to have carried weight before the RRT.  However, that is not the question.  The question is whether the RRT made any error in law in adopting the view that it did about the applicant’s credit and then proceeding to act in the way that it did on that finding.  In my view, the RRT acted entirely in accordance with law and commonsense in the way in which it approached the matter.

5. This case is unusual in that the RRT had hard evidence in relation to the passport, and in the application made in Australia for protection which justified findings of the kind that were made.  This is not a case where adverse criticisms of credit were made based on the RRT’s perceptions of the presentation of the applicant, or on inconsistencies that appeared in the written transcript which could be explained by language difficulties or cultural behaviour.  Here there was hard evidence which virtually dictated the conclusion reached by the RRT.

6. Having arrived at the conclusion that the applicant had been guilty of dishonest behaviour in relation to a central issue on his application, it was incumbent upon the RRT to question other issues which rested on the oral evidence of the applicant, and on the evidence of people who were closely associated with him.  There was an obvious need to question the veracity and accuracy of that information.  That the RRT did, and it is not surprising therefore that in relation to the 1995 and the 1996 incidents, both of which were central to the claims, that the RRT looked about for other supporting information.

7. In relation to 1995 the only supporting information from a source other than the applicant came from Mr Uzun, a witness brought forward by the applicant.  The RRT considered his evidence, and in one respect acted on it, but was not prepared to act on it in relation to the 1995 incident for reasons which it gave.  It was entirely open to the RRT to take that course.  The RRT then, as I have already indicated, made search itself for other evidence to support the happening of the 1995 incident.  Counsel criticises the search, suggesting that perhaps the RRT did not search for the right information.  But it was searching for an event of note to Kurdish people (that is borne out by the statutory declaration of the applicant filed with his submissions dated 6 November 1998) and it was an event which occurred on a specific day.  It was an event when a number of people were said to have been arrested and detained in circumstances that were likely to have excited the attention of human rights bodies, had the event occurred.

8. In my view it was open to the RRT to take the view that it did about the 1995 incident.  It is to be noted that having arrived at a negative result from its searching, details of the search were given to the applicant.  He was given the opportunity to comment on the outcome.

9. The criticism made of the RRT about the way in which it approached the applicant’s credit in my view is not well founded to any degree at all.

10. Counsel suggested at one point in his submissions that the information relied on by the RRT about the passport might in part be due to activities within the Minister’s Department such as someone adding additional material to the documents.  I record my view that that is a thoroughly unjustified submission.  There is no legitimate basis for it at all appearing on the papers.

11. The written submissions are critical of the RRT because it relied in some respects upon inconsistencies in evidence which, it is said, did not relate to material facts on which the claim for refugee status was made.  In my opinion that submission is misconceived.  When a fact finder is required to form a view about credit, it is quite appropriate to look at the evidence in its totality, which is what happened here.

12. It said that the RRT misinterpreted the evidence in a number of respects.  I take the first example that is given which is said to occur at page 6 of the reasons for decision where the RRT recorded that: “He has been a member for nearly twenty years” referring to the TKP-ML.  The submissions refer then to various passages in the transcript of the oral hearing which are said to suggest something to the contrary.  That again is a completely misconceived submission.  When the reasons for decision are reviewed, the statement at page 6 appears in that section which records the claim that was made by the applicant in support of his initial application.  In that claim, in a statutory declaration dated 23 April 1997, at paragraph 34, the applicant asserts “I have been a member of the TKP-ML for nearly twenty years”.  Later in the reasons when the RRT is dealing with the oral evidence that it received, it accurately records the oral evidence that was given which differed from the statutory declaration dated 23 April 1997.

13. In my opinion, the criticisms that are offered about the fact finding process are without foundation.  In any event a perusal of the written submissions indicates, as I have already said, that what is being undertaken in the submissions is a comprehensive attack on the fact finding process.

14. Considerable criticism was made of the RRT’s outright rejection of the occurrence of the 1995 incident.  One criticism is that the RRT did not give the applicant the opportunity to comment upon the negative results from the RRT search.  That is simply contrary to the fact.  The papers before the Court indicate that an opportunity was given.  The outcome of the search was brought to the applicant’s attention, and indeed a written response was made by him.

15. It is said that an error of law occurred because in relation to the 1995 incident, the RRT required that there be independent corroboration.  In my view, the RRT did not in a legal sense so require at all.  It was doing no more than adopting a realistic commonsense approach to the situation, having arrived at the conclusion that the applicant’s evidence was false in a significant respect and could not be relied upon.  It then looked to see whether there was any evidence that could be relied upon to support the happening of the 1995 event.  None was found.  That was brought to the applicant’s attention.  No independent evidence that could be relied upon in support of the incident was produced, and accordingly the RRT very reasonably came to the conclusion that it did.

16. The RRT is also said to have fallen into an error of law by rejecting the evidence of the witness, Mr Uzun for no good reason as to the happening of the 1995 event.  I have already referred to that.  The reasons, in fact, do address the reliability of Mr Uzun’s evidence and advance a cogent reason for not accepting it.

17. A further criticism has been made in oral submissions in an attempt to rely on s 430, although that section is not pleaded in the grounds for review, by saying that material questions were not addressed by the RRT in its reasons.  It is said that the RRT did not address itself to any predisposition which the authorities in Turkey might have to an Alevi Kurd, and that in turn meant that the RRT did not give attention to material questions concerning the alleged arrest of the applicant’s brother, and the possible consequences that that might have to the applicant if he were to return.  Those matters were, in fact, addressed directly by the RRT towards the end of its reasons, and the submission is misconceived.

18. Insofar as there are other matters raised by the amended grounds for review which I have not specifically mentioned, these were  not mentioned in oral argument today by counsel for the applicant and I note that each of those matters has been addressed in written submissions by the respondent.  I propose to say no more than that I agree with those submissions.

19. In my opinion, there is no error of law demonstrated by any of the submissions that have been put forward by the applicant.  The applicant seeks to do no more than have a merits review and that is not a matter that is open to this Court.  The application will be dismissed.  The applicant must pay the respondent’s costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated:             3 June 1999

Counsel for the Applicant:	Mr C R de Robillard
Solicitor for the Applicant:	Nash O'Neill Tomko
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 June 1999
Date of Judgment:	3 June 1999