M76/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 513

FEDERAL COURT OF AUSTRALIA

M76/2002 v Minister for Immigration & Multicultural & Indigenous Affairs  [2004] FCA 513

APPLICANT M76/2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

V 288 of 2003

RYAN J

22 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 288 of 2003

BETWEEN:	APPLICANT M76/2002 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
AND:	MR JOHN VRACHNAS sitting as the REFUGE REVIEW TRIBUNAL  and
MR STEVE KARAS in his capacity as Principal Member of the REFUGEE REVIEW TRIBUNAL Second Respondents
JUDGE:	RYAN J
DATE OF ORDER:	22 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be refused. 

2.        The applicant pay the respondents’ costs, including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 288 of 2003

BETWEEN:	APPLICANT M76/2002 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
AND:	MR JOHN VRACHNAS sitting as the REFUGE REVIEW TRIBUNAL  and
MR STEVE KARAS in his capacity as Principal Member of the REFUGEE REVIEW TRIBUNAL Second Respondents

JUDGE:	RYAN J
DATE:	22 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This application has been remitted to this Court by the High Court by order made on 7 February 2003.  The principal applicant had arrived in Australia from Cyprus on 31 July 1997 as the holder of a visitor's visa which was extended after his arrival in this country.  On 9 September 1998 he applied for a protection visa, including in the application his wife and infant son.  That application was refused on 2 October 1998 by a delegate of the respondent Minister.

2. An application for review of that refusal was lodged with the Refugee Review Tribunal (“the Tribunal”) and the applicant was accorded a hearing by the Tribunal on 17 January 2002.  On 31 January 2002, the Tribunal decided to affirm the refusal of protection visas and that decision was handed down on 22 February 2002.  The applicant applied to the High Court on 3 June 2002 seeking writs of prohibition and certiorari in relation to the decision of the Tribunal.  By the same application he sought an enlargement of time in which to seek prerogative relief.

3. In its reasons for decision, the Tribunal recounted as follows the case which the applicant had mounted before the Tribunal in support of his claim for a protection visa;

   ‘The applicant's case was presented in written submissions provided to the department and written and sworn oral evidence given to the Tribunal, including post-hearing submissions.  He is a Turkish speaking Muslim who was born in Nicosia before Cyprus was divided into Greek and Turkish sections.

   When he was seven years old his family moved to the northern Turkish controlled part of Nicosia.  He joined the Turkish Republican Party, CTP, when he was about 14 years old and was active in pursuing its aim of an amalgamation with Greek Cypriots in a unified Cyprus.

   He said that he was unable to obtain work after he was discharged from military service and his father had to come to Cyprus from Australia to establish a panel-beating business for him in 1984.  He claims he was harassed by police and military officials because he was suspected of supplying paint to dissidents who put graffiti on houses and he says he was detained on many occasions for periods of one or two days on suspicion of helping dissidents.

   His post-hearing submissions state that in 1980 he was among 12 to 15 people who were arrested, blindfolded and tortured, including being forced to witness the death of two of his colleagues.  The applicant conceded that the CTP is a legitimate political party with parliamentary representation, although he believes that that representation has been dramatically reduced in elections since he left the country.  However, he states that the police are subjected to military control and that Cypriots do not have any freedom of speech and other democratic rights, so they are the victims of human rights abuses if they express opposition views, even if they are affiliated with the CTP.  He referred to the example of a Cyprus editor Kutlu Adali who was killed but whose killers have not been brought to justice.

   He explained that he sought to migrate to Australia to join his family in the 1970s and 1980s but did not make any such attempt in the 1990s because he had a business to run and a wife and son to provide for.  He also explained that he did not make an application for protection soon after his arrival because he did not know the law in Australia and did not know he could obtain protection.  He told the Tribunal that he has been a good and honest resident of Australia since 1997 and that his son is a successful student in a private school.

   He stated that he needed permission to work and access to health care.  He said he would be killed or imprisoned if he returned to Cyprus because of his political activities and affiliations.’

4. The Tribunal then rehearsed various principles which have been held to be applicable to interpreting the definition of “refugee” in Article 1A(2) of the 1951 Convention relating to the Status of Refugees, s 91R of the Migration Act 1958 (Cth) (“the Act”) and the provisions of the Migration Regulations governing the grant of protection (class XA) visas. No exception has been taken before this Court to the Tribunal’s formulation of what it saw to be the applicable principles.

5. In its “Discussion and Findings” the Tribunal accepted that the applicant was a national of Cyprus and had been a member of the CTP and a supporter of its policies.  However, it went on to make, on the basis of country information, these findings about conditions in Cyprus as they existed at the time of its decision;

   ‘It is apparent that the CTP is a legitimate member of the de facto government of the self-declared Turkish Republic of Northern Cyprus, TRNC, and that its members have relative freedom to publicly press their views as evidenced by a Reuters business briefing report of recent actions.  Citing Turkish Cypriot radio reports, it published an article entitled Turkish Cypriot Party Demands Resignation of Authorities on 25 March 2001. 

   It observed that, "The Republican Turkish Party, CTP, has decided on staging a series of demonstrations to show its determination to wage a struggle, together with the people, to put an end to the deep economic and political crisis facing the Turkish Cypriot people.  It staged the first demonstration at 1100 hours today in front of the CTP branch in Girne, Kyrenia, under the banner, 'Now is the time for a solution.  We will solve the problems.'  Taking part in the demonstration were Omer Kalyoncu CTP leader for Girne district, deputy Suma Agin, and a group of party members.  The demonstrators marched to Lefkosa, Nicosia square, where they staged a sit-in.  After that they marched to Limassol Turkish Cooperative Bank and closed the road to traffic.

   Omer Kalyoncu read out a press release here charging that the government was doing nothing about the deep economic crisis that started with the banking crisis, and continued with the devaluation in Turkey.  He stressed that the citizens must realise the seriousness of their problems and that the government must resign.’

   That quotation was derived from CISNet CX 51390.  The Tribunal continued;

   ‘The delegate referred to the US Department of State Country Reports on Human Rights Practices for 1997 Cyprus, in assessing the applicant's claims in 1998.  That report documented a general respect for human rights, although there were suspicions that some prisoners were sometimes brutally treated by Turkish Cypriot police, and reports that some people are threatened at the time of arrest.

   The Tribunal agrees with the delegate that the information available at that time was insufficient to found a conclusion that the applicant faced a real chance of persecution.  The current edition of the same report, Country Reports on Human Rights Practices for 2000 Cyprus, released by the Bureau of Democracy Human Rights and Labour, February 2001, notes in its introduction that "In both the government controlled areas and in the Turkish Cypriot community, democratic principles generally are respected."

   It goes on to note that “[I]n general the police forces of both sides respect the rule of law, but instances of police abuse of power continued” and “[t]he government of the Republic of Cyprus generally respected human rights;  however, instances of police brutality continued to be a problem.” It then describes (among other things) some instances of human rights abuses of prisoners and a failure to pursue the killers of Kutlu Adali, who was killed in 1996.  For ordinary citizens, it appears that the most restrictive policy is the restriction of travel between north and south Cyprus and bicommunal meetings.’

6. On the basis of those findings, the Tribunal concluded that the TRNC effectively operated as a democratic republic, that people like the applicant could participate in the political process without a real chance of encountering undue interference or abuse of fundamental rights.

7. The Tribunal then acknowledged that it was plausible that the applicant had been subjected to some mistreatment in 1980 and that he may have been questioned from time to time.  However, it went on to conclude that, if the applicant and his family were returned to Cyprus at the beginning of 2002, they would not face a real risk of persecution for a Convention reason.  The Tribunal’s reasons for reaching that conclusion were expressed as follows;

   ‘… he had the means to escape the country for a long period, but did not take the opportunity to do so.  Nor did he make a timely application for protection after his arrival in Australia.  His explanation that he was ignorant of the process does not sit comfortably with his ability to extend his visa and the fact that he has settled relatives here who could easily have made inquiries on his behalf.

   His failure to leave Cyprus and then to make a timely application for protection in Australia indicates that he has exaggerated the extent of his fears of persecution.  When considered in combination with his exaggerated claim about the lack of democracy and rights in the TRNC, the Tribunal is satisfied that he has exaggerated his fears. 

   The Tribunal notes that the applicant has been able to carry on a successful business in Cyprus and was able to leave the country without hindrance.  The available information does not support his claims that there is no democracy or freedom of speech in the TRNC, and the Tribunal is not satisfied that he faces a real chance of persecution because of his association with the CTP or for any other Convention reasons.  In all of the circumstances the Tribunal concludes that neither the applicant nor his spouse and child face a real chance of persecution should they return to Cyprus.  Their fears of persecution on account of the applicant's connection with the CTP are not well founded and the Tribunal is not satisfied that they are persons to whom Australia has protection obligations.  They do not therefore fulfil that criterion for the purposes of granting protection visas.’

8. In support of his amended application for an order of review filed on 2 September 2003, the applicant set out contentions of fact and law which rehearsed the history of his application for a protection visa and the hearing before the Tribunal.  His contentions concluded with this paragraph;

   ‘Given all this information, there was insufficient time spent by the Tribunal on my case and subsequently important facts were overlooked.  The Tribunal is wrong when it says that I exaggerated my fears.  The US Department of State Country Reports for 1997 states that there were suspicions that some prisoners were sometimes brutally treated by Turkish Cypriot police and reports that some people are threatened at the time of arrest.  This was a very relevant consideration and it appears that the Tribunal has not taken this very important fact into account.’

9. However, in the course of the hearing this morning, I drew to the attention of the applicant that part of the Tribunal’s reasons for decision where it acknowledged the existence of the US Department of State Report for 1997 quoted at [5] above and the noting in that report of suspicions that some prisoners were sometimes brutally treated by Turkish Cypriot police. The reference indicates to me that, contrary to the contention of the applicant, the Tribunal did take into account the considerations encapsulated in the US Department of State Country Report for 1997.

10. The grounds on which the applicant claims to be entitled to the issue of one or other of the prerogative writs which he seeks were set out as follows in his amended application filed on 2 September 2003;

    ‘The decision of the Tribunal

    (a)was made without jurisdiction or is affected by an error of jurisdiction;

    (b)      is affected by an error of law;

    (c)is so unreasonable that no reasonable decision maker could have made it;

    (d)is based on a finding for which there was no evidence or other material;

    (e)       takes into account irrelevant considerations

    (f)       fails to take into account relevant considerations

    (g)was an improper exercise of power conferred by the Migration Act 1958

    (h)      was otherwise contrary to law

    (i)       was made in bad faith.’

11. Although invited to do so this morning, the applicant, who appeared in person assisted by an interpreter, was unable to particularise any of the alleged errors of law or procedural irregularities imputed to the Tribunal in those grounds.  His principal ground of complaint appeared to be that arrangements had been made for his family, including himself, to migrate to Australia as refugees between 1970 and 1974.  However, the intervention of civil war in Cyprus in 1974 and national service obligations prevented the applicant from taking advantage of that permission to migrate, and, by the time migration became possible, the applicant was over 18 and not covered by the family’s permission to enter Australia.

12. The applicant complains that these matters were insufficiently investigated by the Tribunal.  Even if that be so, and I make no finding about it, they were not matters which could bear on the ultimate question for the Tribunal which was whether the applicant had, at the beginning of 2002, a well-founded fear of persecution for a Convention reason if returned to Cyprus.

13. I have carefully read the Tribunal’s reasons for decision and can discern no jurisdictional error or failure to accord procedural fairness to the applicant. Because the decision of the Tribunal was a privative clause decision, s 486A of the Act operates as an absolute bar to the bringing of the present application. In any event, prohibition could not go, because as Gray J pointed out in Batuwantudawa, In the matter of an application for Writs of Certiorari & Prohibition v Ruddock [2003] FCA 684, in similar circumstances to the present, there is nothing left in the Tribunal to prohibit. For these reasons, the application must fail and no order nisi will be granted. The applicant should pay the respondents’ costs, including any reserved costs.

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

Associate:

Dated:             22 April 2004

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms J MacDonnell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 April 2004
Date of Judgment:	22 April 2004