Kilic, Haki v Minister for Immigration & Multicultural Affairs

[1996] FCA 1157

CATCHWORDS

MIGRATION  -  Migration Act 1958 - protection visas - application for review under s476 - applicant a Turkish seaman of Alevi faith who based claim for refugee status on adherence to Alevi faith and deserting ship - interpretation of "well-founded fear of persecution".

Migration Act 1958 ss14, 65, 73, 417, 476, 496; sub-ss36(2), 476(1), 476(2); paras476(1)(d), 476(1)(e), 476(3)(d), 476(3)(e)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
M v Secretary of State for the Home Department [1996] 1 All ER 870
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)

HAKI KILIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
WAG53 OF 1996

LEE J
PERTH
23 DECEMBER 1996

IN THE FEDERAL COURT  )
OF AUSTRALIA         )
WESTERN AUSTRALIA     )
DISTRICT REGISTRY     )
GENERAL DIVISION     )    NO. WAG53 OF 1996

B E T W E E N:            HAKI KILIC

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. WAG53 OF 1996

B E T W E E N:            HAKI KILIC

Applicant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    LEE J
DATE :    23 DECEMBER 1996
PLACE:    PERTH

REASONS FOR JUDGMENT

This is an application under s476 of the Migration Act 1958 ("the Act") for review of a decision made under s417 of the Act by the Refugee Review Tribunal ("the Tribunal") which "affirmed" the decision of a delegate of the respondent ("the Minister") to refuse the grant of 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 criteria applicable to such a visa have been satisfied. Pursuant to sub-s36(2) of the Act a criterion for a protection visa is that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Those terms are defined in s5 of the Act 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 one at New York on 31 January 1967".

In Schedule 2 of the Migration Regulations Item 866 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 is 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 stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, the question whether a fear of persecution is well-founded,
depends on whether the material presented in respect of the application for a protection visa 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 now 33.  He has spent the whole of his working life as a seaman.  The applicant was born to parents who were members of the Alevi sect or Shi'ite branch of the Islamic religion.  According to material before the Tribunal, Alevis represent about 20% of the Turkish population and Sunni Muslims the remainder.  People of Kurdish descent are often assumed to be Alevi followers.  There has been unrest in Turkey for some years based on tension between the Sunni majority and the Alevi minority and between Turkish authorities and people of Kurdish origin seeking the establishment of a separate Kurdish State divided from Turkey.

A vessel on which the applicant was a seaman arrived at an Australian port on 26 December 1994. Shortly thereafter the applicant deserted the vessel and became an unlawful non-citizen under s14 of the Act.

In March 1995 the applicant was detained by officers of the Minister's Department and whilst in custody made application for a "Protection Visa (866)". In April 1995 the applicant was granted a bridging visa pursuant to s73 of the Act permitting the applicant to remain in Australia until his application for a protection visa was determined.

On 26 May 1995 a delegate of the Minister rejected the application for a protection visa.  The delegate accepted that the applicant had a fear of harm or mistreatment for reason of religion if he were returned to Turkey but rejected the application on the ground that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention "as his claimed harm or mistreatment on return to Turkey is not of sufficient gravity as to constitute persecution".

On 9 June 1995 the applicant applied to the Tribunal for a review of the delegate's decision.  The hearing of the application by the Tribunal considered written material and the transcript of oral statements made to the Minister's Department by the applicant, and further written material and sworn oral evidence given by the applicant to the Tribunal.

The applicant's case on the review hearing before the Tribunal was that he feared persecution if he returned to Turkey by reason of his adherence to the Alevi faith and by reason of his "jumping ship" and seeking refuge in Australia.

On 9 April 1996 the Tribunal made a decision which purportedly affirmed the delegate's decision to refuse to grant a protection visa but in its terms the Tribunal made a fresh decision based on findings of fact made by the Tribunal.  For example, the delegate made the following finding with respect to the applicant's involvement in the Alevi religion:

"At interview, the applicant was able to provide a sufficiently detailed elaboration of the nature of Alevi theological underpinnings and religious observances for me to accept that he is an Alevi as claimed.  In the circumstances, I consider his claims to have been subjected to instances of discriminatory treatment in the hands of Sunni Muslims in both his education and employment to be plausible, given the comparatively secular nature of the Alevi faith."

The Tribunal was satisfied that the material before it supported the following finding:

"...it was apparent to the Tribunal that he is not a follower of Alevi religious practices or beliefs or has any commitment to them and that he has exaggerated the significance of his Alevi religion in making his claims.  Apart from relating common knowledge that Alevis do not say prayers five times a day in a mosque and do not observe the fasting restrictions observed by other Muslims during Ramadan, he was ignorant of Alevi religious customs...The conclusion drawn by the Tribunal is that, despite his Alevi heritage, he and his family have discarded all aspects of that faith which may identify
them..."

The Tribunal stated that it accepted that the harm feared by the applicant was for a "Convention-reason", namely, religion or political opinion imputed to persons identified as followers of the Alevi religion.  The Tribunal also stated that it treated the applicant's fear of persecution for the acts of "ship-jumping" and seeking asylum in Australia as fear of persecution for a "Convention-reason", namely, political opinion held by the applicant or imputed to the applicant by Turkish authorities.  (See:  M v Secretary of State for the Home Department [1996] 1 All ER 870.)

However, the latter statement of the Tribunal was contradicted when the Tribunal expressed its conclusion on that aspect of the applicant's claim to entitlement to protection under the Refugees Convention in the following terms:

"The claim that he will be detained and tortured because he jumped ship is not Convention-related, but is the result of him [sic] failing to complete whatever arrangements he had with his employer..."

The ground for review on which the applicant relied read as follows:

"In making the decision the Refugee Review Tribunal erred in law in misdirecting itself as to the application of the test of whether the
Applicant would suffer a real chance of persecution in determining whether the Applicant had a well founded fear of persecution within the terms of the Refugee Convention."

Particulars of that ground were provided and read:

"1.The Tribunal has misdirected itself in assessing the Applicant's claim to a well-founded fear of persecution on the basis of his membership of a religious group by seeking evidence of persecution in the form of inhibitions upon the Applicant's ability to freely practice his religion, and rejecting the Applicant's application on the basis of a lack of such evidence.

2.The Tribunal has misdirected itself in concluding that the persecution in the form of discrimination has not occurred because the Applicant has avoided discrimination in employment for significant periods of time by successfully concealing his religious identity, and has failed to address the question of whether there is a real chance that the Applicant's religious identity may be detected and may well result in his persecution.

3.The Tribunal has misdirected itself in failing to take into account the fact that the Applicant will be interrogated by Turkish authorities in respect of the fact that he jumped ship; such authorities will be aware of his application for refugee status and will thus become aware of his Aleri [sic] background, resulting in a real; [sic] chance that he will be persecuted by Turkish authorities because of his membership of a particular social group."

Sub-section 476(1) of the Act states:

"476.(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)that the decision was not authorised by this Act or the regulations;

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision."

Sub-section 476(2) of the Act, which by its terms suggests 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 has occurred in connection with the making of a decision, nor that a decision has 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 review of an administrative decision on the ground that the decision is irrational is part of the premise on which the need for review of administrative decisions is based, namely, maintenance of the integrity of the administrative process, it is probable that any decision so flawed is likely, in any event, to be subject to review on the ground provided by para476(1)(e).  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 items 2 and 3 of the particulars appear to be directed to supporting a ground to which para476(1)(d) in its ordinary sense would apply, namely, that the Tribunal failed to take into account relevant considerations, the terms of the ground set out in the application make it clear that para476(1)(e) is the ground for review relied upon by the applicant.

Counsel for the applicant restricted his submission to the first two items of the particularized ground.  The Tribunal's treatment of the applicant's claim to asylum to which item 3 refers, therefore, is to be disregarded.

As explained by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 (per Brennan CJ, Toohey, McHugh, Gummow JJ at 497-498; Kirby J at 507), it is not necessarily the case that a Tribunal will commit an error of law by forming an opinion that some material before it is of greater "weight" than other material and, assisted by that material, by concluding that it is not satisfied that there is a real risk that an applicant for a protection visa will suffer persecution if returned to the country of nationality. However, as set out in Chan, and acknowledged in Wu, such an error will occur if the Tribunal requires the prospect of persecution to be proved as a matter of likelihood or probability and the Tribunal thereby fails to deal with the question whether it is satisfied that the chance of persecution has been shown to exist as a tangible risk.
         Authoritative reports prepared by the US State Department and by Amnesty International which recorded gross abuses of human rights in Turkey arising out of the use of emergency and anti-terrorism powers by Turkish police and security forces were part of the material before the Tribunal.

The Tribunal noted that the targets of such abuse amounting to persecution were:

"...members of legal and illegal political parties and groups, trade unionists, writers, journalists, publishers, academics, students, members of the Kurdish ethnic minority and religious activists."

The Tribunal was satisfied that Turkey had a "bad record on human rights" but it was not satisfied that the applicant had any reason to fear treatment from Turkish authorities that would amount to persecution.

The Tribunal noted expressly that the applicant was not a Kurd and, implicitly, that the applicant was not a "religious activist".

The Tribunal also noted that the applicant had concealed whatever connection he had with the Alevi religion and had not been at risk of experiencing repressive conduct by Turkish authorities whilst in Turkey.  Furthermore, the Tribunal concluded that there was no real chance that the
applicant would suffer persecution for the reason of his religion if he returned to Turkey, even if his religious faith were not concealed.  The Tribunal selected material which, it said, supported that conclusion.

The task before the Tribunal was to assess whether it was satisfied that there was material - notwithstanding that it may have been given lesser weight by the Tribunal than other material - that indicated that there was a real chance that the applicant may suffer persecution for a Convention-reason if returned to Turkey.

Counsel for the applicant submitted that the Tribunal incorrectly applied the law by restricting its consideration of the risk of persecution to whether there was a real chance that the applicant would be subjected to the repression of his right to practise the Alevi religion and by failing to ask whether it was satisfied that there was a real chance that the applicant would suffer extreme discrimination or harassment, if the applicant was identified by Turkish authorities as a member of the Alevi sect.

The Tribunal did examine whether persecution of the applicant may occur by acts of Turkish authorities which prevented the applicant practising the Alevi religion but the reasons as a whole show that the Tribunal also considered the question in a broader context before determining that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.  The Tribunal considered the past experiences of the applicant and evidence of the treatment of Alevis in Turkey as a group and stated that there was not a real chance that the applicant would suffer persecution if he were regarded by Turkish authorities as a member of the Alevi sect.

It has not been shown that the Tribunal misunderstood the law to be applied as adumbrated in Wu.  The Tribunal expressed in clear terms that it was not satisfied that a real chance of persecution existed having considered material that, in its opinion, provided particular assistance.  In the absence of any error being shown in the reasoning process of the Tribunal that led to the conclusion that a real chance of persecution did not exist, the decision of the Tribunal must stand.

The application must be dismissed.

I certify that this and the preceding     (12) 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