Kirkiz v Minister for Immigration and Multicultural Affairs

[2000] FCA 1017

FEDERAL COURT OF AUSTRALIA

Kirkiz v Minister for Immigration & Multicultural Affairs [2000] FCA 1017

Migration Act 1958 (Cth), s 476(1)

Minister for Immigration & Multicultural Affairs v Epeabaka (1998) 84 FCR 411, cited

MEMET KIRKIZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 15 of 2000

R D NICHOLSON J
26 JULY 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 15 of 2000

BETWEEN:	MEMET KIRKIZ Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	26 JULY 2000
WHERE MADE:	PERTH

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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 15 of 2000

BETWEEN:	MEMET KIRKIZ Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON J
DATE:	26 JULY 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 January 2000 affirming a decision of a delegate of the respondent not to grant a protection visa to the applicant.

2. The applicant is a citizen of Turkey.  He arrived in Australia on 8 May 1999.  He lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") on 31 May 1999.  The respondent's delegate made the decision to refuse the application on 9 November 1999.  The hearing before the tribunal took place on 21 December 1999.

3. The Tribunal made a number of findings of fact.  I have read the reasons of the Tribunal and accept that the summation of those findings in the respondent's submissions is accurate.  I now set out in these reasons (i) to (xvii) listing those findings.

   (i)The applicant is of Kurdish ethnicity and he identifies as Kurdish.  (p. 122)

   (ii)The Tribunal was unable to accept that the applicant was a credible or reliable witness in relation to a number of aspects of his application for a protection visa and found that the applicant fabricated many of his claims in an attempt to give himself the profile of a refugee.  (p. 122)

   (iii)The Tribunal did not accept that the applicant actively supported the PKK or was suspected of supporting the PKK or that he was arrested for this reason between 1980 and 1982.  (p. 123)

   (iv)The Tribunal found that the chance that the applicant would actively support the PKK if he returned to Turkey is remote and insubstantial.  (p. 123)

   (v)The Tribunal accepted that the Turkish authorities detained and mistreated the applicant on a small number of occasions between 1980 and 1982 and that his perceived political opinion and his ethnicity played a part in his detention and this amounted to persecution for a Convention reason.  (p. 123)

   (vi)After the applicant moved to Araban he was able to work, complete his military service, return to Araban and resume employment, all without attracting the adverse attention of the authorities.  When the applicant moved to Gaziantep he established himself in business and remained living at the same address and working in the same employment for a period of some years without attracting the adverse attention of the authorities.  He was also able to return to his village to be with family for religious celebrations.  In these circumstances the Tribunal was of the view that whatever problems the applicant had in his village between 1980 and 1982, they had long since dissipated.  The Tribunal was not satisfied that the applicant was of any continued adverse interest to the authorities because of what happened between 1980 and 1982, or that he currently has a well-founded fear of persecution arising out of the situation that existed at that time.  (pp. 123-124)

   (vii)The Tribunal, after considering the applicant’s evidence concerning HADEP and his membership of and activities with HADEP, and independent evidence concerning HADEP, was unable to accept that the applicant was a member of HADEP or that he was involved in any HADEP activities beyond low-level support for the organisation.  The Tribunal was of the view that the applicant fabricated his claim in an attempt to enhance his claim for refugee status and that the chance that the applicant would join the party if he were to return to Turkey was remote and insubstantial.  (pp. 124-126)

   (viii)In relation to the applicant’s claim that he was arrested at Newroz celebrations in March 1998, the Tribunal did not accept that this occurred.  Even if the applicant had been detained in March 1998, the Tribunal was not satisfied this would give rise to a well-founded fear of persecution in the future.  If the applicant had been detained and physically mistreated in March 1998 it was an isolated event arising out of the response of the security forces to Newroz celebrants shouting slogans.  (pp. 127-128)

   (ix)The Tribunal did not accept that police threatened to kill the applicant if he attended the Newroz celebration in 1999, but was of the view that the applicant would be able to attend future Newroz celebrations if he chose to do so, and that the chance he would be detained if he attended another Newroz celebration in the future was remote and insubstantial.  (pp. 128-129)

   (x)In relation to the applicant’s claim that his son was detained at Newroz in 1998, the Tribunal did not accept that this occurred and, in any event, even if his son was detained, the Tribunal was not satisfied that such an incident would give rise to the applicant having a well-founded fear of persecution in the future.  (p. 129)

   (xi)The Tribunal accepted the applicant’s claim in relation to his second son being harassed at school, but was not satisfied that it gives rise to a well-founded fear of persecution for the applicant.  (p. 129)

   (xii)Whilst the Tribunal accepted the applicant’s claim that he paid a bribe to an official at the airport, the Tribunal did not consider that the payment of the bribe either indicates that he is of interest to the authorities, or that it constitutes persecution for a Convention reason.  (p. 129)

   (xiii)The Tribunal was not satisfied that there was a real chance the applicant will face persecution when he returns to Turkey because he will be suspected of having said “bad things” about Turkey.  (pp. 129-130)

   (xiv)The Tribunal did not accept the applicant’s claim that he will be pressured into becoming a village guard upon his return to Turkey.  Therefore the Tribunal was not satisfied that the applicant has a well-founded fear of persecution arising out of this aspect of his claim.  (p. 130)

   (xv)Even though the Tribunal accepted that three of the applicant’s sisters have been accepted as refugees abroad, it was not satisfied that this gives rise to a well-founded fear of persecution for the applicant.  (p. 130)

   (xvi)The Tribunal accepted the independent evidence that Kurds who publicly or politically assert their Kurdishness and who are suspected of supporting Kurdish separatism are at risk of persecution in Turkey, but found that the independent evidence did not suggest that all Kurdish people in Turkey are at risk of persecution.  In relation to the applicant’s Kurdish ethnicity, the Tribunal did not accept that he is perceived as promoting Kurdish separatism, or that he would be perceived in this light if he returned to Turkey.  In these circumstances the Tribunal was not satisfied that the applicant faces persecution in Turkey merely because of his Kurdish ethnicity.  (pp. 130-131)

   (xvii)Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention, and therefore he did not satisfy the criterion in s 36(2) of the Migration Act for a protection visa.  (pp. 131-132)

4. I draw particular attention to the finding that the applicant is of Kurdish ethnicity and identifies as Kurdish.  That is important for the way in which he presses his application and for the circumstances of the life which he and his family lead in Turkey as found by the tribunal.  I also draw particular attention to the findings summarised in paragraph (vii) relating to the applicant's membership of the political party HADEP, to which I will return.

5. The applicant appears unrepresented.  Before the delegate and before the Tribunal the applicant had legal representation.  It does not appear that his application for review has had the benefit of legal formulation because it apparently appears in a form common to usage at the Port Hedland Detention Centre.

6. The application as so formulated contains two principal grounds of review.  The first relates to the decision involving an error of law being an error involving incorrect interpretation of the applicable law or incorrect application of the law.  The second contends a decision involved an error of law because the findings of fact were not rationally supported by probative evidence and there was a failure to rationally consider probative evidence.

7. The jurisdiction of this Court to review a decision of the Tribunal is governed by the Migration Act 1958, s 476(1) (“the Act”). This Court has no jurisdiction to, as the applicant put it, reconsider generally the decision. It does have jurisdiction to examine the Tribunal's decision in terms of the first ground of the application because of the provisions of s 476(1)(e) of the Act.

8. It does not have jurisdiction to examine the reasons of the Tribunal in terms of the second ground of review in the application. See s 476(2)(b) of the Act and s 485 as well as the terms of s 476(1). It is important to have in mind that a wrong finding of fact, whether as a result of illogical reasoning or otherwise, would not demonstrate an error of law. See Minister for Immigration & Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 421. Therefore, the second ground of the application cannot succeed.

9. In support of the first ground of the application the applicant has provided a written statement to the Court.  In that statement he said in the opening paragraph:

   “I am currently a resident in Port Hedland refugee camp.  My problem is that I respect the decision given by the immigration officer and the RRT, however, although my judge claims that the people who work for HADEP have no life safety, I do not believe the decision he made about me is a just decision, because I am a Kurdish person registered as a Turkish citizen whose life is in first degree danger.  The first reason my life is in danger in Turkey is that I was an active worker of the HADEP party and I have a document that shows I am a worker of the HADEP party.”

   The remainder of the statement deals with the applicant's assertions as to issues of fact relating to HADEP workers and persons of Kurdish origin in Turkey and the difficulties he would face including the possibility he asserts of death if he were to return to Turkey.

10. It was these submissions which the applicant generally repeated in his oral submissions to the Court in support of his application for review.  During those submissions he produced the document which he had claimed in his written statement would establish that he was a worker of the HADEP party.  Translated, that document stated that the applicant had been a registered member of HADEP since 1994 but that no card of membership or other document could be issued to establish that.  The document bore the date of 15 January 2000.  It also bore a seal of HADEP in the Gaziantep region 1994.  The question arises whether this fresh evidence should be admitted or, if admitted, what effect it would have in support of the application for review.

11. In my opinion, the fresh evidence should not be admitted.  My reasons for that conclusion are as follows:

    (1)Fresh evidence is usually only admitted on special grounds.  This document does not relate to a matter which has occurred after the decision from which the appeal is brought.

    (2)When the delegate gave the decision on 9 November 1999, it was recorded that the applicant had clarified his connections with HADEP by saying before the delegate he was not a full member of the party and before the last election had never been involved.  Between the date of the delegate's decision and the Tribunal hearing on

    
    

    21 December 1999 there was ample opportunity for the applicant to have sought and obtained from Turkey the document he now tenders and to have brought that to the attention of the Tribunal.

    (3)Examination of the reasons of the Tribunal shows that there were a number of unsatisfactory features of the applicant's evidence concerning his membership of HADEP which led the Tribunal to disbelieve him on that matter.  The Tribunal found the applicant's claims in relation to the issue had significantly escalated since he first arrived in Australia.  It found that he lacked knowledge which could be anticipated of someone having membership of HADEP.  It found that his evidence concerning his membership of HADEP was internally inconsistent and inconsistent with the independent evidence.  That led to its finding summarised in paragraph (vii) above.  Between the date of the Tribunal hearing on 21 December 1999 and the date of its delivery of reasons on 10 January 2000 there was the opportunity for the applicant to have made available evidence of his membership, which by then was clear to him was a significant issue.

    (4)Before this Court the applicant claimed that he had endeavoured to produce the evidence in the document to the Tribunal and had not been able to do so because of lack of legal representation.  That is inconsistent with the record which discloses representation by solicitors on behalf of the applicant at the hearing on 21 December 1999 and in the making of subsequent submissions dated 7 January 2000 to the presiding member of the Tribunal.  The reason given by the applicant to this Court is therefore not credible.

    (5)It is significant, in my view, that the document bears the date of 15 January 2000; that is, that it was sealed and completed following the delivery of the reasons of the Tribunal.  In a context where the applicant's credibility on the precise character of his membership was at issue, the completion of the document after that finding does not attract credibility.

    (6)The applicant lodged his application for a protection visa on 31 May 1999.  He has had a great deal of time and opportunity to have obtained the document prior to either the decision of the delegate or the hearing before the Tribunal.

12. For these reasons the admission of the document is refused.  However, even if the document had been admitted it would not, in my view, necessarily vitiate the conclusion of the Tribunal on the applicant's credibility on the issue of membership of HADEP.  I have already set out the number of matters on which the Tribunal relied to reach its conclusion on the issue of membership of HADEP.  The document is not, in my view, a whole body of evidence pointing inescapably to a conclusion different from that reached by the Tribunal.  That is particularly so where the date on which the document was obtained necessarily raises the question of the credibility of the document itself.

13. The first limb of the remaining ground supporting the application is that the Tribunal incorrectly interpreted the applicable law.  No particulars have been provided of the way in which this has occurred and that could not be expected from an unrepresented applicant.  I have, however, examined what the Tribunal said about "the legislation" and "the Refugees Convention" and in my view it does not disclose any incorrect interpretation of the applicable law.  Furthermore, I accept the submission for the respondent that there is nothing in the remainder of the Tribunal's reasons for decision and how it went about its task showing that the Tribunal did not correctly interpret the applicable law.

14. The remaining aspect of the ground contends that the Tribunal's reasons show that it did not correctly apply the law to the facts as found by it.  I have set out above in summary form the findings of the Tribunal.  Having made those findings the only possible conclusion reasonably open to the Tribunal was that which it reached.

15. I therefore conclude that neither of the aspects of s 476(1)(e) of the Act relied upon by the applicant are made out.

16. In his statement to the Court the applicant emphasised his desire to live as a human being free of the pressure which he considers falls on him and his family in Turkey, particularly because of his Kurdish origin and other matters.  That must be seen as an honourable human desire for which the Court should not be thought to lack sympathy.  However, the jurisdiction of this Court is limited in the way previously stated and that requires that for the applicant to succeed he must make out a ground of review in relation to which the Court has jurisdiction.  That is a position he is unable to reach in accordance with the requirements of the applicable law.

17. Accordingly the application must be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON.

Associate:

Dated:             26 July 2000

The applicant appeared for himself
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 July 2000
Date of Judgment:	26 July 2000