MZWRS v Minister for Immigration
[2005] FMCA 1462
•14 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWRS v MINISTER FOR IMMIGRATION | [2005] FMCA 1462 |
| MIGRATION – No evidence, or lack of adequate evidence, for findings of fact – findings critical in Tribunal’s reasoning – inadequate evidence and unreasonableness of findings – jurisdictional error. |
| Migration Act 1958, ss.65, 474 Administrative Decisions (Judicial Review) Act 1977 |
| SFBG v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 NAYQ vMinister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 545 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 Curragh Queensland Mining Ltd v Daniel (1992) 27 ALD 181 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 SAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 345 VWST v Minister for Immigration v Minister for Immigration and Indigenous Affairs [2004] FCAFC 289 |
| Applicant: | MZWRS |
Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1312 of 2004 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 13 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Ritchie |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Ms. Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application for Review filed on 12 October 2004 is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1312 of 2004
| MZWRS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the Applicant contends that the Tribunal made findings of fact that were critical in its reasoning, and determinate of its decision, without evidence, or adequate evidence, to support such findings.
In doing so, it was contended, the Tribunal’s decision was characterised by jurisdictional error and is not afforded protection as a privitative clause decision under s.474 of the Migration Act 1958 (the Act).
Background
The applicant is an ethnic Kurd and citizen of Turkey. He arrived in Australia on 5 June 2001 and made an application for a protection visa on 17 July 2001. By a decision dated 28 February 2002 the Minister’s delegate refused the application. The applicant lodged an Application for Review of the delegate’s decision by the Tribunal on 21 March 2002 which was heard on 26 September 2002. The Tribunal handed down its decision on 10 January 2003 (“the Tribunal’s first decision”).
The applicant’s application for judicial review of the Tribunal’s first decision was filed on 30 January 2003 in this Court and orders were made by consent on 23 March 2004 that the Tribunal’s first decision be set aside and remitted back to the Tribunal for re–hearing.The Application for Review of the delegate’s decision was re-heard by the Tribunal on 3 August 2004. The Tribunal handed down its decision on 18 August 2004.
In summary, the applicant’s reasons for applying for a protection visa were as follows:
a)he is a Kurd whose relatives were active in Kurdish left–wing politics. One of the applicant’s uncles was killed by fascists when the applicant was still a child;
b)the applicant was a member of the pro–Kurdish party HADEP with which he became involved in 1996;
c)in about 1996 the applicant started his 18 month military service. In the army he was a driver and was allegedly tortured because he refused combat duty as he disagreed with the war against the PKK;
d)
after his military service he joined the leftist group DevSol.
He states that he was beaten up and kidnapped and tortured by members of right–wing groups because of his political activities including his membership of HADEP. He was also sacked from his job as a machine operator because of membership of the union Petrolis; and
e)the applicant also claimed that, since his departure from Turkey in mid 2001, there had been searches for the applicant by the Turkish police and by right–wing groups.
The Tribunal accepted that the applicant suffered past persecution, on Convention grounds, at the hands of the Turkish authorities and/or right–wing groups. Specifically, the Tribunal accepted the applicant’s claims that:
a)the applicant was Kurdish;
b)the applicant was a low profile member of the pro–Kurdish People’s Democracy party HADEP;
c)the applicant was mistreated while he performed his military duties;
d)the applicant was mistreated either by police or members of right–wing groups as a result of his association with left–wing groups including HADEP and that the mistreatment would take the form of beatings and would sometimes involve being burnt with a cigarette;
e)the nature of the beatings and their frequency did not have a pattern;
f)the mistreatment did not occur in the context of protracted interrogation sessions;
g)the last incident of mistreatment occurred several months prior to the applicant’s departure from Turkey in 2001;
h)the applicant was never imprisoned as a result of his activities; and
i)the applicant had some family members who had been involved with left–wing groups and were persecuted because of their activities.
The Tribunal rejected the applicant’s claims that:
a)after the applicant left Turkey for Australia police or right–wing militants had made inquiries about his whereabouts; and
b)relatives of the applicant had been mistreated by police or right– wing militants because of his activities.
Having made those finding the Tribunal went on to consider, in light of country information, whether the applicant would face a real chance of persecution on return to Turkey.
Notwithstanding an acceptance of the applicant’s claims of prior persecution, the Tribunal found that, due to changed circumstances in Turkey, the applicant did not face a real chance of persecution on Convention grounds should he return to Turkey. Accordingly, the Tribunal concluded that the applicant is not a person to whom Australia has protection obligations under the Convention.
The law on the lack of evidence for critical findings
If a Tribunal makes a finding that is a critical step in its ultimate decision on no evidence, or on evidence so inadequate that no reasonable decision maker could have made the finding, then the Tribunal will, thereby, have committed jurisdictional error; see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at 407 which is followed in NAYQ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 545 at [52]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [62[, [67], [73], [76], [90]–[91] and Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at [355]–[357]. The position is summarised by the Full Court of the Federal Court (Mansfield, Selway and Bennett JJ) in SFGB at [18]–[19] as follows:
“[18]…The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was “Wednesbury unreasonable”. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
[19] This argument, if it were made out would be sufficient to establish that the tribunal had made a “jurisdictional error” so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357; 94ALR 11 at 37-8;21 ALD 1 at 23-4. If the decision of the tribunal was “Wednesbury” unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, there would also be jurisdictional error: see Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, 67,76,90-91; 73 ALD 1 at 4, 8-9,18,31-3.”
A finding of fact will be critical to a decision if it is a link in the chain of reasoning that leads to that decision (see Curragh Queensland Mining Ltd v Daniel (1992) 27 ALD 181 at 188). In Curragh Black CJ, with whom Spender and Gummow JJ agreed, said:
“A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.
If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.”
One reason why the making of a critical finding without evidence, or on inadequate evidence, constitutes jurisdictional error is that in such circumstances the Tribunal can not have had the state of satisfaction for it validly to exercise its jurisdiction under s.65 of the Act. In exercising its jurisdiction the Tribunal is re-exercising the power conferred on the Minister under s.65 of the Act to grant or to refuse to grant a protection visa. The valid exercise of that power is conditional on the Minister (and consequently the Tribunal) reaching a state of satisfaction as to whether the applicant is a person to whom Australia owes protection obligations under the Refugees Convention (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 606; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [124]).
Critical findings by the Tribunal
The applicant’s claim for judicial review focused on the Tribunal’s conclusion that the applicant would not face a real chance of persecution for his support for the pro–Kurdish political party HADEP should he return to Turkey. The Tribunal stated:
“Thus, the political landscape points to an improving situation for Kurdish political activists. While HADEP has been banned, this does not appear to stem from at attitude of antipathy to the organization, rather it follows from a law of general application regarding the banning of terrorist organizations and bodies which associated with them. Moreover, DEHAP- the other main pro-Kurdish political party is free to participate in the political process.
Given that at the official level even high profile pro-Kurdish political activities are not normally persecuted, the applicant is even less likely to be persecuted (emphasis added)”
The Tribunal went on to also state:
“It follows that the applicant’s involvement with HADEP or a trade union will not place him at risk of mistreatment”.
The applicant contended that the Tribunal’s statement that “(g)iven that at the official level even high profile pro-Kurdish political activists are not normally persecuted, the applicant is even less likely to be persecuted” contained two related findings of fact; namely:
a)that at an official level high profile pro–Kurdish political activists are not normally persecuted; and
b)that the applicant (as a low profile member of HADEP) is less likely to be persecuted than high profile pro–Kurdish political activists.
These two findings of fact, the applicant contended, are critical links in the chain of reasoning that lead directly to the conclusion that “the applicant’s involvement in HADEP will not place him at risk of mistreatment”. The applicant argued that the Tribunal’s reasoning is that the applicant is not at risk of mistreatment because he is a member of a group (low profile HADEP members) that is less likely to be persecuted than a group that is “not normally” persecuted. The question as to whether the applicant’s involvement in HADEP placed him at risk of mistreatment on his return to Turkey was clearly, in turn, central to the Tribunal’s enquiry as to whether the applicant was a person to whom Australia owed protection obligations and, thus, a determining factor in its affirmation of the decision to refuse a protection visa.
The applicant contended that each of the critical findings identified in paragraph 14 above were fatally flawed as they were made without evidence or were based on evidence so inadequate that no reasonable decision maker could have made them.
In respect of the finding that at an official level high profile pro–Kurdish political activists are not normally persecuted the applicant argued that in its consideration of whether there would be a real chance of him being persecuted for his support for the pro–Kurdish political party HADEP on return to Turkey the Tribunal cites two pieces of country information:
a)an extract from the UK Home Office, Turkey Assessment, dated October 2003 (the Home Office extract); and
b)an extract from Country Report on Human Rights Practices, Turkey 2002, by the US Department of State (published 31 March 2003) (the Department of State extract).
The Home Office extract and the Department of State extract are the only pieces of evidence relied on by the Tribunal in its finding that at an official level high profile pro–Kurdish political activists are not normally persecuted. The Tribunal does not purport to rely on or refer to any other evidence in support of this finding.
The applicant contended that there is no evidence in either extract for the finding. The only direct evidence of the prevalence of persecution of pro–Kurdish activists in the extracts, “high profile” or otherwise, is the following:
“…throughout 2002 police raided dozens of HADEP offices particularly in the south-east and detained hundreds of HADEP officials and members. DEHAP and HADEP members were regularly harassed by Jandarma and security officials and were subject to verbal threats, arbitrary arrests at rallies, and detention at check points. Security forces also regularly harassed villagers who they believed were sympathetic to HADEP/DEHAP. Although most detainees were released within a short period, many faced trials, usually for “supporting an illegal organisation” (presumably the PKK), “inciting separatism” or for violations of the Law on Meetings and Demonstrations.”
Contrary to what was reasoned by the Tribunal, the applicant contended, the extracts support the proposition that persecution of HADEP officials in 2002 was widespread and officially sanctioned.
Nevertheless, the applicant contended, the Tribunal purported to infer from the extracts that “high profile” pro–Kurdish political activists are “not normally” persecuted.
In response to this argument the respondent argued that it is important to distinguish between harassment that is not so serious as to amount to persecution, and persecution properly so called. Whether conduct is sufficiently serious as to amount to persecution is a question of fact and degree for the Tribunal to determine (see SAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 345).
The applicant relies on an extract from the US Department of State Report which begins with the words “throughout the year police raided dozens of HADEP offices …”. However, the applicant fails to mention the opening words of the paragraph from which those words were taken. The paragraph begins:
“HADEP/DEHAP leaders said state harassment of the party has continued to decline gradually for each of the past 3 years, following a steep reduction in PKK-related conflict. They said the party was able to operate more freely in the November parliamentary elections than in the previous election in 1999. ”
In my view, contrary to the applicant’s contention, the full report from which Department of State extract, when taken as a whole, does not support the proposition that persecution of HADEP officials in 2002 was widespread and officially sanctioned. The report refers to harassment and verbal threats. It was entirely open to the Tribunal, in my view, to not regard these matters as so serious as to amount to persecution. The report also refers to HADEP officials and members being arrested but released after a short period. Again, it was open to the Tribunal to regard short periods of detention as not being so serious as to amount to persecution. Those who continued to face trial had been charged with an offence under a law of general application, and, as such, would not fall within the Convention.
The full report from which the Department of State extract is taken, which has the appearance of an exhaustive list, indicates that a former HADEP leader, a Turkish Communist Party Leader and a Turkish Socialist Party leader had each been sentenced to imprisonment for
10 months, apparently for promoting the breaking up of the Turkish State. Otherwise, there is no mention of any prolonged detentions, apart from four people convicted of belonging to the PKK, an armed terrorist organisation. In these circumstances, there was evidence, in my view, upon which the Tribunal could properly conclude that “at the official level even high profile pro-Kurdish political activists are not normally persecuted.”
The Home Office extract also notes that in September 2002 for the November 2002 elections DEHAP and HADEP had decided to unite under the roof of DEHAP. The Home office extract then quotes a DEHAP parliamentary candidate as saying that: “the political atmosphere is kinder and gentler. We are able to visit the towns and villages where we were previously barred, we are allowed to hold large meetings. This has caused a huge explosion in our support”.
This is again, in my view, more evidence upon which the Tribunal could logically draw to reach its findings.
Given the above, the critical finding by the Tribunal that high profile political activists were “not normally” persecuted was made with evidence and was open to it. It follows then that the applicant’s alternative contention that the finding was based on evidence so inadequate that no reasonable decision–maker could have made it must fail.
In respect of the Tribunal’s finding that the applicant (as a low profile member of HADEP) is less likely to be persecuted than high profile pro–Kurdish political activists, the applicant contends that the only evidence cited by the Tribunal in support of the critical finding is the Home Office and the State Department Extracts.
The passage cited by the applicant deals primarily with harassment rather than persecution. Overall, the material, in my view, indicated that occasionally high-level activists were persecuted but low–level activists were, on the whole, no more than harassed. Accordingly, the Tribunal’s finding was open on the evidence.
It is important to note that the Tribunal did not say that high-level activists were never persecuted and did not say that low-level activists were never persecuted. The Tribunal cast its findings in terms of the likelihood of future persecution. That is exactly the question the Tribunal was required to ask and required to answer. It did so. In the Tribunal’s view, members of left–wing pro–Kurdish parties were harassed but the level of harassment was decreasing. In these circumstances, it was open to the Tribunal to conclude that the applicant did not face a real chance of harm so serious as to amount to persecution.
The applicant contended that there was a further critical finding made by the Tribunal unsupported by evidence, or alternatively, if there was evidence, it was inadequate. That contention was that the Tribunal’s analysis failed to give proper consideration to the applicant’s real risk on return to Turkey from right–wing groups. It was said the Tribunal focussed on the likely behaviour of authorities at the expense of the real risk posed by right–wing groups. This focus was evident, it was contended, in the Tribunal’s analysis of whether the applicant’s support for the pro–Kurdish political party HADEP would place him at risk of persecution. The issue of whether the applicant would face a real risk of persecution from right–wing groups on his return to Turkey is not dealt with to any meaningful extent, the applicant contends, in the body of the Tribunal’s analysis.
The applicant argued that in order to address this omission under the heading “Incidental Matters” in its decision the Tribunal stated the following:
“The applicant attributed most of the mistreatment he experienced to right wing groups as opposed to the police. The above analysis essentially focuses on the likely behaviour of the authorities toward a person with the applicant’s profile. However, in relation to the risk of persecution faced by the applicant on his return there is not a meaningful distinction between the two groups. As the applicant constantly emphasised, the right wing groups acted with impunity because their activities were at least tacitly condoned by corrupt security forces that placed little emphasis on human rights issues and the rule of law. This has now markedly changed. The security forces place far more importance on observing the rule of law. There is no evidence that they cannot or will not control groups who violate the rights and interests of others” (emphasis added).
The applicant contended that, although the Tribunal accepts that in the past the right–wing groups acted with impunity because their activities were condoned by corrupt security forces that placed little emphasis on human rights issues and the rule of law, it made the following findings without evidence, or adequate evidence:
i)that circumstances had now changed and that right–wing groups now no longer act with impunity as the security forces place far more importance on the rule of law; and
ii)that there was no evidence that the security forces could not, or would not control right–wing groups.
In making these findings, it was contended, the Tribunal was relying only on the various country information extracts.
These findings, the applicant argued, are unsupported by the country information before the Tribunal. There is no, or virtually no evidence, it was said, in the country information cited that supports the proposition that the previously corrupt security services now no longer condone persecution of persons with the applicant’s profile and, in fact, would protect the applicant from persecution should he return to Turkey because of a new–found commitment by Turkey to the rule of law.
The Tribunal emphasised that Turkey had recently become a far more politically tolerant society due to human rights improvements being a condition of its entry to the European Union and due to a reduction in terrorist activity by the PKK. Those conclusions, in my view, were supported by country information. Specifically, in February, March and August of 2002, Parliament passed extensive human rights reforms. The Home Office Report dated October 2003 considered by the Tribunal said that, “There are signs that the spirit of the August 2002 reform is being implemented.” A DEHAP Parliamentary candidate, for example, said, “We have emerged from the chaotic years (of emergency rule and strict bans on the Kurdish language), and the political atmosphere is kinder, gentler. We are able to visit the towns and villages where we previously were barred, we are allowed to hold large meetings.”
In my view, it was open to the Tribunal to conclude that the situation had changed and there was no evidence that, in the present climate, the government could not or would not control those who violate the rights of others.
In my view, the Tribunal considered the issue of right–wing groups and the likely risk they posed to the applicant should he return to Turkey and was entitled, on the evidence before it, to find that the circumstances in Turkey had changed so as to not represent a real prospect of harm being occasioned to the applicant by these groups.
In respect of the applicant’s contentions that the findings were at best supported only by inadequate evidence, I say that inadequacy of evidence is not a ground of review in this proceeding. In respect of the authorities relied on by the applicant in support of this contention I say: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 was decided on the no evidence ground. The references in it to inadequate evidence were obiter. NAYQv Minister for Immigrationand Multicultural and Indigenous Affairs (2004) 80 ALD 545 was decided on the basis of manifest unreasonableness but the unreasonableness consisted of reaching a conclusion unsupported by evidence. Re Minister for Immigrationand Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 concerned the pre-privative clause regime.
In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321, it is clearly stated that while “no sufficient evidence” is a ground of judicial review in England, it is not in Australia. Bond, of course, was decided under the Administrative Decisions (Judicial Review) Act 1977 in which Wednesbury unreasonableness is a specific ground of review. Even so, Bond confirmed at 356 that there is no error of law in making a wrong finding of fact, and emphasised that a conclusion will be unreviewable as long as there is some basis for it, even if it appears illogical. In these circumstances, it cannot be said that inadequacy of evidence is a ground for judicial review in Australia.
In the alternative, the applicant contended that the Tribunal committed jurisdictional error on the basis of illogical reasoning. Want of logic is not available in this proceeding as a ground of review (see VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286). In any event, the Tribunal’s reasoning was not illogical. For the reasons stated above, the Tribunal’s finding about low-level activists was supported by evidence.
Conclusion
Having critically examined the Tribunal’s decision, and having considered the contentions of the parties, in my view, the Tribunal’s decision is not characterised by jurisdictional error for the reasons set out above. Accordingly, the Tribunal’s decision is afforded protection under s.474 of the Act.
The Application for Review filed on 12 October 2004 should be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 14 October 2005
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