Kazanci v Minister for Immigration and Multicultural Affairs

[2000] FCA 538

FEDERAL COURT OF AUSTRALIA

Kazanci v Minister for Immigration & Multicultural Affairs [2000] FCA 538

MISEL KAZANCI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1176 of 1999

HILL J
18 APRIL 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1176 OF 1999

BETWEEN:	MISEL KAZANCI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	18 APRIL 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Kazanci to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 September 1999 affirming the decision of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) that he not be granted a protection visa. The application is made pursuant to s 476 of the Migration Act 1958 (“the Act”).

2. That section sets out a limited number of grounds of review of a decision by the Tribunal.  The application to this Court set out a number of grounds.  It claimed that the Tribunal had misinterpreted the definition of a refugee in the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”) and failed to accord to him substantial justice by applying an incorrect standard of proof, ie. the criminal standard of beyond reasonable doubt, in deciding whether it was satisfied that he was a refugee within the meaning of the Convention. The application also alleges a failure on the part of the Tribunal to make findings concerning various matters claiming that by so doing the Tribunal had failed to observe procedures which the Act required it to observe.

3. The precise decision before the Tribunal was whether it was satisfied that Mr Kazanci was a person to whom Australia had protection obligations under the Convention.  A person who is a refugee within the meaning of the Convention is a person to whom Australia has protection obligations.

4. Mr Kazanci was not represented before me. He said that he had had the assistance of a friend but that that friend had been unable to help him since the death of a relative around January of this year. Mr Kazanci has the assistance of an interpreter, but as may be expected of a person not trained in the law, has difficulty in pointing to errors in the Tribunal’s reasons which would permit review of the Tribunal’s decision under s 476 of the Act.

5. Mr Kazanci made a number of claims before the Tribunal.  He claimed that as a Christian he had been denied human rights and feared returning to his country of nationality, Turkey.  He claimed also to be Kurdish and subject to persecution for that reason, particularly he claimed to be a member of a left wing organisation called Halkin Kurtulusu or the Peoples Liberation Organisation.

6. His claim rested also upon his distribution of an illegal newspaper and torture that he said he had suffered as a result of his membership of the Peoples Liberation Organisation.  He referred to incidents in which he had been involved where the police had fired bullets, tortured him and where his uncle had been stabbed and died and he had received an injury.  He told the Tribunal, as he told me, that members of his family other than his parents had left Turkey and gone to other countries.

7. The Tribunal did not believe him.  It referred to what it called “the many inconsistencies” between his written claims and his evidence at the hearing.  The Tribunal’s reasons detail these inconsistencies.  Mr Kazanci sought to persuade the Tribunal that he was confused and that the inconsistencies had arisen because dates were not important to him and also that there were communication difficulties arising because of language and culture.

8. The Tribunal did not accept this explanation.  It rejected his claim that he was of Kurdish ethnicity.  It was not satisfied that he was a supporter of the PKK or that its political views were imputed to him.  It did not accept his involvement with the Halkin Kurtulusu.  It was not satisfied that he had been truthful about the circumstances of his claimed detention and was not satisfied that some incidents upon which he relied had happened.

9. So far as the claim depended upon his belonging to the Christian faith the Tribunal found that there was no objective cause for a well-founded fear of persecution if he had one.  The reasons of the Tribunal are perhaps sufficiently summarised in the following paragraph at the end of its reasons:

   “At the Tribunal hearing, the overall implausibility of the applicant’s claims was pointed out to him.  The applicant was given the opportunity to clarify the contradictions regarding the various claims that he has made, but was unable to do so in any meaningful way.  Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in Turkey in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a convention reason is well founded.”

10. I have carefully read the Tribunal’s reasons and am unable to detect in them any error which would be a ground for setting aside the Tribunal’s decision.  It is not the case that the Tribunal applied some incorrect standard of proof.  No doubt, strictly the question of standard of proof does not arise in an administrative decision of this kind but to the extent that as a practical matter an applicant has an onus of satisfying the Tribunal there is nothing in its reasons which suggests that the Tribunal applied a criminal standard.  The Tribunal was entitled not to accept the evidence which Mr Kazanci gave.  Once it did the conclusion it reached followed.

11. If it be assumed that s 430 of the Act when read together with s 476 permits judicial review on the basis of failure to make findings, a matter which is presently reserved for consideration by a Full Court of five judges of this Court, I do not think that it assists Mr Kazanci here. Even if it be accepted that the Tribunal failed to make a finding whether he was stabbed by agents of the Turkish regime this would not be of assistance because the Tribunal took the view that it was not satisfied that the incident occurred for a Convention reason. The Tribunal dealt with the manner in the follow paragraph:

    “The applicant claimed in his written statement that he and his uncle were stabbed in 1994 by “Grey Wolves” (fascists). At his hearing he gave oral evidence that he has no idea who the assailants were.  Even if the Tribunal accepts that the stabbing took place in light of the applicant’s contradictory statements about the identity of the assailants and his oral statement that he did not know who they were and therefore cannot know why the assault took place, the Tribunal cannot be satisfied that this assault took place for a convention related reason and may have been a purely criminal act.”

12. Section 430 only obliges the Tribunal to set out its findings where the question of fact is material. On the approach the Tribunal took in the passage I have set out it cannot be said that the incident in question was material to the outcome of Mr Kazanci’s case. As Mr Kazanci has been unable personally to put any other matters to me (and in saying that I am not critical of him) it follows that no ground of review has been made out. I have explained to him that this Court has no jurisdiction to review factual matters. Findings of fact and questions of credibility are matters entirely within the Tribunal’s jurisdiction. Parliament has not chosen to confer jurisdiction on this Court to make factual findings or decide whether or not a person is telling the truth. I have, therefore, no alternative but to dismiss the application for review and affirm the decision of the Tribunal.

13. The orders accordingly will be that the decision of the Refugee Review Tribunal is affirmed.  The application is otherwise dismissed and the applicant is to pay the Minister’s costs of it.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill .

Associate:

Dated:             18 April 2000

The Applicant appeared in person
Counsel for the Respondent:	J D Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2000
Date of Judgment:	18 April 2000