MZXLB v Minister for Immigration
[2007] FMCA 344
•27 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXLB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 344 |
| MIGRATION – Review of Refugee Review Tribunal decision – visa – protection visa – integers of claim – incident of claim not separate integer. |
| Migration Act 1958 Migration Regulations 1994 |
| Htun v Minister for Immigration [2001] FCA 1802 NAZF v Minister for Immigration [2004] FCA 340 NBGV v Minister for Immigration [2005] FCA 690 SZAFJ v Minister for Immigration [2004] FCA 291 SZAFW v Minister for Immigration [2004] FCAFC 173 SZBNG v Minister for Immigration [2004] FCAFC 261 SZFCX v Minister for Immigration [2006] FCA 394 Tran v Ministerfor Immigration [2006] FCA 1229 WAEE, Applicant v Minister for Immigration [2003] FCAFC 184 |
| Applicant: | MZXLB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 866 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 December 2006 |
| Date of Last Submission: | 4 December 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Victorian Legal Aid |
| Counsel for the First Respondent: | Mr Heerey |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5000.
FEDERAL MAGISTRATES |
MLG 866 of 2006
| MZXLB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 10 September 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the tribunal”) dated 31 May 2006. That decision affirmed a decision of the first respondent’s delegate to refuse a protection visa for the applicant.
Background
The applicant is a 31 year old male citizen of Turkey. The applicant first arrived in Australia on 13 March 2004. On 26 April 2004, the applicant lodged an application for a protection visa.
On 1 September 2005, the delegate of the first respondent determined that the applicant was not a person to whom Australia had protection obligations and refused the protection visa application.
On 19 September 2005, the applicant applied for a review of the delegate’s decision with the tribunal. On 21 December 2005, the applicant attended a hearing of the Tribunal and gave oral evidence. Oral evidence was also given by the applicant’s brother.
The applicant contended that he had a well founded fear of persecution if he were to return to Turkey for three main reasons. First, the applicant claimed that as the brother of a member of TIKKO (the Turkish Communist Party’s paramilitary wing), who was murdered by Turkish authorities in April 1999. The applicant said that this gave rise to persecution because the relevant Turkish authorities came to suspect the applicant as being a member or sympathiser of TIKKO. The applicant claimed that the family was placed under surveillance shortly after the murder, and that between May 2001 and October 2003, and that he left Turkey to reside in Northern Cyprus to avoid the pressure of such surveillance. He said this was worsened by his parents bringing a claim in the European Court of Human Rights, and the adverse interest the family received from right wing groups.
Secondly, the applicant claimed that because he was ‘politically active’ in Turkey (including participating in some public demonstrations and engaging in ‘trade union activities’, although never becoming a member of the Turkish Communist Party), this gave further reason for the Turkish authorities (and, it was asserted, certain associated ‘shadowy paramilitary groups’) to have an on going interest in the applicant, and by extension, subject them to persecution. Thirdly, the applicant relied upon his Kurdish ethnicity.
The Tribunal affirmed the decision of the delegate not to grant the protection visa in its decision dated 31 May 2006.
The Tribunal’s reasons for decision
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The Tribunal accepted that:
a)The applicant is of Kurdish ethnicity and of the Alevi religion;
b)The applicant’s brother was a member of TIKKO and that this brother was killed by Turkish authorities in April 1999; and
c)Because of his brother’s membership of TIKKO the applicant and his family were placed under ‘strong surveillance’, subject to ‘significant questioning’ and had their home ‘regularly searched’ by the authorities, in addition to being ‘subject to attacks from nationalist groups’ immediately following his brother’s death.
However, the Tribunal concluded that the applicant had not suffered any serious harm in Turkey for any Convention related reason in the past as:
a)The Tribunal did not accept that the Turkish authorities or any ‘associated shadowy paramilitary groups’ had an ongoing interest in the applicant. Nor was the Tribunal satisfied that the applicant had to leave for Northern Cyprus because of such an ongoing interest.
b)Despite the applicant’s involvement in political demonstrations in Turkey during the 1990s (resulting in him being arrested and detained) the applicant was released on each occasion without charge with the only harm suffered during such arrests being of a minor nature and not requiring medical attention.
c)Although the Tribunal accepted that there is a ‘level of discrimination against Kurds and Alevis in Turkey today’, it did not consider it to be of a sufficient nature to constitute persecution.
d)On the available information, there was ‘no evidence’ Turkish authorities would persecute the applicant because his family had brought a case against the Turkish government in the European Court of Human Rights.
The Tribunal also found that the applicant would be unlikely to be persecuted if he was to return to Turkey now or in the foreseeable future saying:
However, I have already found that the Turkish authorities or their associated paramilitary groups did not have any ongoing interest in the applicant whatsoever after his brother’s death, when he was living in Northern Cyrus or in the period before he came to Australia. Based on this finding I now find that if the applicant returned to Turkey now or in the reasonably foreseeable future there is no real chance that he would face persecution from the Turkish authorities or their associated paramilitary groups because of his association with his deceased brother and that brother’s involvement in TIKKO or because the applicant will also be imputed to be involved in TIKKO.
…
[The applicant] had not suffered any serious harm as a result of such [past] participation [in political activities] … Based on all of the above, I find that if the applicant returned to Turkey now or in the reasonably foreseeable future and continued to participate in the type of political activities he had done in the past there is no real chance that he would face persecution because of his real and imputed political opinion as a leftist.
… [O]n the applicant’s own evidence he continued to participate in active and visible trade union activities after his brother’s death without any apparent negative consequences. I therefore find on the evidence before me that if the applicant returned to Turkey now or in the reasonably foreseeable future and continued with his own political activity there is no real chance that he would face persecution because it is now known that his brother was a leftist militant.
…
I … find that the applicant had not been restricted in any way from pursuing legal political activities in the past in Turkey and that if he returned to Turkey now or in the reasonably foreseeable future there is no real chance that he would be restricted from continuing to pursue legal political activities because of any alleged fear of persecution from the Turkish authorities or any other group.
…[Because] TIKKO is an illegal terrorist group … I therefore find that any prosecution of the applicant under such laws … for actual membership of an illegal terrorist organisation such as TIKKO would not give rise to any Convention claims.
The Tribunal found there was no ‘real chance’ that now or in the foreseeable future of persecution on account of the applicant’ having obtained a video tape which showed his brother engaged in TIKKO activities.
Grounds of review
On 17 November 2006, the applicant filed an amended application setting out the following grounds for review:
1.The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s. 65 to grant or refuse the applications and its powers to conduct a review under s. 414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
PARTICULARS
(i) in that it misunderstood and/or misconstrued a criterion under s. 36 of the Act about which it had to be satisfied for the purposes of s. 65 and/or failed to consider the case as put and/or an issue going directly to the question whether that criterion was satisfied and/or a central element of the applicant’s claim
(a) it failed to ask itself whether the applicant had a well-founded fear of persecution and/or failed to deal with an integer and/or element of the claim and/or a relevant consideration being the applicant’s claim that the authorities would want to get knowledge of TIKKO and family members with a profile like the Applicant with the knowledge which he possessed could be targeted at any time to provide such information rather than because they were suspected of membership of the group.
(b) it failed to ask itself whether the applicant had a well-founded fear of persecution and/or failed to deal with an integer and/or element of the claim and/or a relevant consideration being the applicant’s claim of fear of persecution based on his family’s political profile as distinct from simply the applicant being a ‘family member of a person known to be in a leftist militant group’
(c) it asked itself the wrong question and/or misconstrued and/or misunderstood the test of well-founded fear and/or failed to deal with an integer and/or element of the claim of fear of persecution by the authorities in relation to any future activity by the applicant that may be illegal particularly the risk that he may be tortured and killed like his brother if he were to become involved with TIKKO or if his legal activities were to be viewed as illegal.
(d) the decision was unreasonable, irrational, illogical and not based no findings or inferences of fact supported by logical grounds and/or 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.
Each of the matters particularised in the applicant's claim was pursued as a separate ground.
Ground 1
The applicant argued that the Tribunal had failed to properly understand the precise nature of his claim. It was said that the claim was as framed in his representative's last written submission to the Tribunal where the representative said:
The Tribunal has pointed out that since TIKKO is an illegal terrorist organisation in Turkey, the authorities would have had legal justification for arresting the applicant under their anti-terror laws. This is acknowledged, however in relation to this I submit (as has also been put earlier) that from the point of view of the Turkish authorities, an applicant with [the applicant’s] profile may represent a future entry point who, if monitored effectively, may lead the authorities to other members of this highly secretive, armed revolutionary group. Therefore, from the authorities’ point of view, the applicant’s potential value in this regard would be negated if they were to move before he had led them to anything relating to this group. The applicant has indicated that although not a member of TIKKO, he does as a matter of fact have knowledge that the authorities would consider highly valuable intelligence concerning TIKKO members, information which presently the authorities may not realise he has. I submit that the chance of the authorities turning their attention to this applicant in the future is not remote, and nor is the prospect of torture being employed to extract actual or suspected information if the applicant was not forthcoming under interrogation. As a family member and in particular a younger brother of a known and neutralised TIKKO member, [the applicant] would live with this prospect indefinitely.
The issues that arise from this submission are:
a)the authorities may not move immediately against the applicant;
b)the applicant claims to have knowledge of use to the authorities, which they may seek to extract from him in the future, if they become aware he has this knowledge; and
c)the applicant may inadvertently lead the authorities to members of TIKKO.
The argument advanced at the hearing in this court went further, developing the phrase ‘entry point’ as encompassing a claim that the applicant, was a person who through familial (or other) associations may have an advantage in infiltrating the group (on the basis that those associations mean that the group is less likely to be suspicious of the person) would be likely to suffer harm from authorities to make him assist in infiltrating the group. It is argued that this is a separate integer of the claim and requires separate treatment in the decision. This is somewhat higher than the last oral submission of the applicant’s representative at the hearing. In the transcript of the hearing the applicant’s representative described the claim (as relevant to this ground) as follows:
The claim I think, if you look at it more broadly, is of their being real chance that at some point in the future, not too distant, or even longer term, this applicant runs the risk of being interrogated by virtue of his imputed and actual also connection with his brother and his brothers group. An organisation like TIKKO, which is obviously an illegal terrorist organisations in terms of how they’re characterised by the Turkish Republic, and perhaps also objectively, is not an organisation that the Turkish Republic authorities can regularly bust into in terms of, you know, having knowledge about both the operations and individual members of that group because it’s a clandestine, illegal organisation.
A family member of such an organisation could be targeted at whatever point it might be in the future by the authorities. Not necessarily because the authorities suspect that family member also to be a member of that organisation but more as a leg-in, a means by which information could be gleaned about identity and operations of the group. Now, the Tribunal’s observations about it, the fact that it hasn’t happened now of course are correct. It hasn’t, and also objectively, yes, there may well have been opportunities to the Turkish authorities to pounce on family member X, you know, who might have been associated with TIKKO. In that connection perhaps, the applicant pointed I think is a valid response to that in terms of there’s probably no point in the authorities pouncing on a family member who doesn’t appear to be doing anything at the moment.
Whether a circumstance is a separate integer, thus requiring the Tribunal to deal with it specifically in their reasons is often a question of fact and degree, having regard to the particular circumstances of a given case.
The applicant, in his written submissions, relied upon a large number of authorities. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 the applicant relied upon paragraph [45] where the Full Court said:
45 In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:
`... a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' (s 36(2)(a) read with s 415 (1))
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
However, the Full Court went on to point out that:
46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802:
40 The Tribunal came to the view, which was open to it, that his activities in Australia were sufficiently innocent not to be of a level as to make him of any concern to the Burmese authorities.
41 The Tribunal, on a fair and straight-forward reading of its reasons, did not deal with the claim made by the appellant in his application for review by the Tribunal and supported by objective evidence that:
"Due to my participation with Karen community and political groups I have made a number of friends, some of whom are members of the Karen National Liberation Army."
42 The "participation in the Karen community and the political groups" could be said to have been dealt with by the Tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation - that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The Tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.
The applicant also referred to SZAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 291 where the Full Court said:
20 The first ground of appeal relates to the RRT finding set out in paragraph 13 above, which is that writing letters seeking food was an activity that the government had embraced after the cease-fire as a duty to all those affected by the war, including people who formerly worked and fought for UNITA, or who lived under its control. The submission is that in directing attention to and concentrating on the present food policy, rather than the question of the perception by the government or UNITA Renovada of the appellant as a collaborator with UNITA, the RRT fell into error by not addressing the claim made: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [26], [27] and [95]. Failure to decide the matter which is put to the Court is a constructive failure to exercise jurisdiction.
21 In support of this submission, the appellant refers to the statement in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] that:
["It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim."
22 It is evident from the submission to the RRT by the solicitor for the appellant that the appellant’s case was that he may be targeted by the government as a Bakongo or UNITA supporter, or by UNITA Renovada in renewed anti-government activity, and that because of such imputed political opinion he was in danger of persecution if returned to Angola.
23 This submission was appreciated by the RRT member. However, the RRT’s reasons indicate that in making his decision the member was distracted from, and failed to properly address, the question raised as to the continued perception of the appellant by UNITA Renovada as a UNITA collaborator. The evidence indicates that the cease-fire was only adopted by the majority of the UNITA party, and that the splinter group of UNITA, UNITA Renovada, did not accept the cease-fire.
24 As his Honour found, there is "much sense" in the submission advanced by the appellant to the effect that the question for the RRT was whether the appellant would be persecuted for his perceived collaboration with UNITA. In my view, the Magistrate erred because he considered that the claim was not one of the integers of the RRT decision.
In NAZF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 340 Sackville J allowed an application by consent where the RRT had failed to deal with a claimant’s financial circumstances, where it was relevant to the capacity of a person to live in China.
In SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173 the Full Court said:
[21] Nowhere did the Tribunal consider that part of the appellant’s claim that was based on her husband’s longer-standing relationship with the rebels. Although this would have been a matter for the Tribunal to determine, if it had addressed this claim, there is arguably a significant qualitative difference between an association with the rebels because of one’s house having been temporarily taken over by them and an earlier long-lasting voluntary association. People who knew or believed that the rebels occupied the appellant’s home by force would not necessarily have assumed that the appellant and her husband were rebel sympathisers. However, people who knew the appellant’s husband had friends amongst the rebels and had advised them from time to time might readily have imputed sympathy for the rebels’ cause to both the husband and the appellant. In our opinion, the Tribunal was obliged to address the question whether hostility, on the latter account, to the appellant, by ordinary people as distinct from government, had abated to the point that it no longer posed a real chance of persecution of the appellant by such people.
[22] In the comments quoted at [16] above, the Federal Magistrate asked rhetorically, ‘does it matter’ whether the appellant’s fear derives from her being the widow of an imputed rebel sympathiser or from rebel sympathies imputed directly to her. That is, would it be futile to remit the matter to the Tribunal even in light of the above failure on the part of the Tribunal; Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-14. If the Tribunal only had to be satisfied that an adverse political opinion was imputed to her then the question might well be answered in the negative. But that is not sufficient; the Tribunal must be satisfied that the fear is ‘well-founded’. In assessing the basis of the appellant’s fear, the source of the persecution and the reasons why those responsible for it would impute an adverse political opinion to the appellant are highly relevant.
[23] The Tribunal accepted that pro-RUF opinions had been imputed to the appellant. In assessing the appellant’s situation, however, the Tribunal did not consider the extent to which, if at all, the appellant was at risk of persecution from non-government sources by virtue of having been married to a man who had been executed because he was regarded as a rebel sympathiser.
In SZBNG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 261 the Full Court again considered this issue, where Wilcox J said:
22 In his reasons for decision, the RRT member quoted country material dealing with the general situation of Hindus in Bangladesh. It may well be that this material justifies the statement that there are ‘many millions of Hindus in Bangladesh’ and that ‘there does not seem to be any evidence that Hindus generally are at risk of persecution’. However, the appellant’s claim went well beyond saying he was a Hindu in Bangladesh. He also claimed to have come from a family in which his mother, at least, organised prayer sessions, practising her religion in a public way; a way that had caused her to be persecuted to the point where she had been fatally injured.
23 Furthermore, the appellant claimed he was a Hindu who had taken the unusual path of actively supporting the BNP, rather than the Awami League, and that this had caused problems for him even in the Hindu community. In that situation, it was not enough for the RRT member to talk about the situation of Hindus generally. The member needed to consider the position of this particular Hindu person.
24 The RRT member concluded by dealing with a claim by the appellant about people wishing to harm him because of an unrepaid loan. I do not criticise the member's view that this would not be persecution based on a Convention reason.
25 It has been said time and again, by members of both the High Court of Australia and this Court, that courts should not be astute to find error in the reasons for decision of an administrative tribunal, such as the RRT. I totally agree with that approach. If it is apparent to the Court, in a particular case, that the relevant Tribunal considered the whole of a person’s claims and reached findings about them, it is immaterial that the tribunal’s reasons might be sparsely or inelegantly expressed or that the reviewing judge might not have reached the same findings, if he or she had been the judge of the facts. The Court does not review factual findings of a body like the RRT.
26 However, if the situation is that the Court is satisfied that relevant claims have not been considered by the administrative Tribunal – that is to say that the case that was put to that Tribunal by the particular applicant was not adjudicated upon – then the Court must find jurisdictional error.
In NBGV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 690 Bennett J found for the applicant, saying:
[55] I have come to the conclusion that the Tribunal properly considered many of the applicant’s claims and came to conclusions that were available to it on the evidence. The Tribunal accepted the applicant’s history, background and conduct. It considered the totality of the applicant’s circumstances, individually and cumulatively, and was not satisfied that he has a well-founded fear of persecution for a Convention reason. The applicant has not established jurisdictional error in respect of his claim relating to the role of Hezb-e-Islami and Hezb-e-Wahdat in or around Jaghori; the fact that the applicant is a Hazara or a Shia Muslim; the treatment of country information; the applicant’s residence in a Western country; or the fact that the applicant had been accepted as a refugee in Australia.
[56] However, the Tribunal failed to consider the applicant’s claim to have a well-founded fear of persecution in Afghanistan by reason of his secular conduct and by reason of being perceived as someone who has abandoned Islam.
Similarly, in SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 394 Bennett J found for the applicant in a case where the Tribunal concluded that an applicant was not at risk as a result of being a member of General Aoun’s army (as those soldiers were being included in the LAF), because the Tribunal failed to consider the additional aspect of the applicant’s claim that he had joined General Aoun’s army on deserting from the LAF:
In this case the applicant’s claims arose primarily as a result of the consequences of his brother’s involvement in TIKKO and subsequent death in 1999. Following his brother’s death the family was under surveillance and attacked by nationalist groups for a period. The applicant claimed he went into hiding for a period after the death of his brother, but that claim was rejected by the tribunal. He claimed he moved to Cypress for a period to avoid ongoing interest by authorities and other groups, however this was also rejected by the tribunal. The Tribunal specifically found that:
Based on all of the evidence before me I am not satisfied that the Turkish authorities or any associated paramilitary groups had any ongoing interest in the applicant whilst he was living in Northern Cyprus or before his departure from Turkey to Australia because of his family link to his brother and his brother’s activities in TIKKO or any imputed involvement by the applicant in TIKKO. I therefore find that the Turkish authorities or any associated paramilitary groups did not have any ongoing interest in the applicant whilst he was living in Northern Cyprus or before his departure from Turkey to Australia because of his family link to his brother and his brother’s activities in TIKKO or because of any imputed involvement by the applicant in TIKKO or because he was a family member of a person known to be in [a] leftist militant group. I also find that he was never in future with any political opinion as a TIKKO member, supporter or sympathiser.
The Tribunal dealt with claims by the applicant that he had been involved in a number of demonstrations and was arrested and detained. However the applicant was always released without charge. The Tribunal found that the authorities had no ongoing interest in the applicant because of his involvement in demonstrations. The Tribunal went on to state:
The applicant has claimed that if he returned to Turkey now or in the reasonably foreseeable future he would be harmed by Turkish authorities order associated paramilitary groups because of his association with his deceased brother and that brother’s involvement in TIKKO or because he would also be imputed to be involved in TIKKO. However I have already found that the Turkish authorities or their associated paramilitary groups did not have any ongoing interest in the applicant whatsoever after his brother’s death, when he was living in Northern Cyprus in the period before he came to Australia. Based on this finding I now find that if the applicant returned to Turkey now or in the reasonably foreseeable future there is no real chance that he would face persecution from the Turkish authorities or associated paramilitary groups because of his association with his deceased brother and that brother’s involvement in TIKKO or because the applicant will also be imputed to be involved in TIKKO.
The case put to the Tribunal is that the applicant claimed to be at risk of further adverse interest by the Turkish authorities the purpose of allowing them to investigate the activities of TIKKO. The applicant argued that such adverse interest may not arise until sometime in the future as such interest could take a variety of forms. Unlike the cases referred to by the applicant, this part of the claim does not involve any further ‘actors’, nor any additional evidence, facts or circumstances not considered by the Tribunal.
There will always be some degree of risk of future adverse interest by authorities, of the type described here, in cases where the fear is that authorities will impute association with a particular group, or sympathy for that group. In this case the submissions on behalf of the applicant were speculating as to the possible forms of adverse attention the applicant may suffer from the Turkish authorities. In the circumstances of this case the potential forms of future harm claimed by the applicant, whilst giving specifics to an otherwise generalised future fear, did not amount to a separate integer; they are better described as an incident of the substantive claim.
The Tribunal member had made a finding that the applicant had not in fact suffered any persecution to date and was not now or in the future of interest to the authorities. These findings, whilst at a higher order of generality, were sufficient to cover the claims made by the applicant.
In the circumstances I am not satisfied that this ground is made out.
Ground 2
Ground 2 is also based upon a fine distinction between types of claims. The claim dealt with by the Tribunal member was a claim for fear as a result of being a family member of a person known to be in a leftist military group. The applicant says that the Tribunal had therefore failed to deal with his discrete claim of fear based upon his family's political profile. It relies upon there having been community hostility directed towards the family, as a result of the terrible details of his brother's torture and murder and the high visibility of his parents, and particularly his mother's action in a women's group.
However, it remains a claim that he may be persecuted as a result of his brother's activities with TIKKO, and the consequences of that, after his brother’s death. The Tribunal member had regard to the conduct in the circumstances of the applicant and his family following his brother’s death, in making findings as to whether or not the applicant was of interest to the authorities or likely to suffer harm in the future. The Tribunal rejected the claim on this basis.
In this case the claim by the applicant to fear persecution as result of being a family member of his brother, in light of the conduct of his parents following the death of his brother, is not, in substance, any different to a claim of fear based on his family’s political profile. This is because his family’s political profile was defined by the conduct of his brother, and his parent’s actions as a consequence of his brother’s death, and did not go further (such as his family having a political profile for other reasons). With respect to the applicant, his claim to have fears of persecution as a result of his own political conduct was dealt with separately by the Tribunal.
I therefore find that this ground is not made out.
Ground 3
In support of this ground of the applicant argued that he is at greater risk than the average person in Turkey, of being persecuted if he were to engage in illegal activities in the future. The Tribunal did not find that the applicant had restricted his political activities in the past for fear of persecution.
The Tribunal noted that TIKKO is a registered terrorist organisation and that involvement with it was illegal. The Tribunal appears to have properly considered whether or not the conduct of the Turkish government in outlawing TIKKO (and prosecuting its members involved in illegal terrorist activities) was a law of general application appropriate to achieving a legitimate object of that country, as required in accordance with the reasons in MZQAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 35. In these circumstances, even if it were to have been accepted that the applicant intended to join TIKKO on his return to Turkey, he would not be at risk for a convention based reason.
To the extent that the applicant argued that this claim related to potential persecution by non state actors the Tribunal did not find that there was any persecution or serious harm as a result of non state agents involved in this case.
Ground 4
The final ground is a claim that the decision as a whole was unreasonable such as to give rise to a ground for judicial review. The applicant relied upon a statement by Rares J in Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 where his Honour said:
[24] The inadequacy of the material relied on by an administrative decision-maker while, not itself, being a ground for prohibition is a circumstance which may support, in a case like the present, the inference that the Tribunal was applying the wrong test or was not in reality satisfied of the requisite matters. As Dixon CJ, Williams, Webb and Fullagar JJ held in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120:
‘If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.’
[25] And, in Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 67 [36]-[37], McHugh and Gummow JJ, having applied the passage just cited said that the particular circumstances disclosed by the written statement required by s 430 (here s 368) of the Act was important in this regard (see too at 198 ALR at 71 [52], 98 [173] per Callinan J agreeing). In Minister for Immigration v SGLB (2004) 207 ALR 12 at 20 [38] Gummow and Hayne JJ said that:
‘...the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 20/2002 (2003) 198 ALR 59 at 67 [37], 71 [52], 98 [173]). If the decision did display these defects, it will be no answer that the determination was reached in good faith ... However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.’
[26] If a decision-maker does not give any reason for his or her decision, the court may be able to infer that he or she had no good reason (Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Palme (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ).
[27] In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 [44] per Gleeson CJ and McHugh J, 656-657 [144]-[147] per Gummow J, 672-673 [194] per Callinan J, the distinction between a decision which the court finds no reasonable decision-maker could have come to and one which the court considers simply to be unreasonable, was discussed. The latter characterization involves a broad spectrum at the extreme end of which may be found decisions of the former category in the sense of unreasonableness of the kind recognized in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. The existence of that spectrum reminds the courts that between its extreme ends are many categories of decision with which courts might not agree or which they could regard as unreasonable but which a reasonable person could have made. The latter category of decision is immunized from judicial review because the legislature has confided to the decision-maker the task of forming the opinion or arriving at the state of satisfaction on the materials before him or her.
[28] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 Mason J noted that the Court should proceed with caution in cases where it was suggested that a decision-maker had erred by giving too much or too little weight to particular considerations ‘... lest it exceed its supervisory role by reviewing the decision on its merits’. He said that a close analogy existed between the judicial review of administrative action and appellate review of a judicial discretion. He pointed to the fact that in cases of the latter kind appellate courts could review discretionary judgments that had failed to give proper weight to a particular matter, but were slow to do so because the mere preference for a different result was not sufficient to disturb the exercise of the discretion by the judge at first instance (162 CLR at 42).
[29] Administrative decision-making, of its nature, involves the formation of value judgments as to such matters as credibility, the strength or compellingness of the particular case, the importance of consistency in decision-making and the simple formation of the relevant opinion which the statute prescribes as the occasion for the exercise of the power. Thus, s 65 of the Act requires the Minister, as the decision-maker, to be satisfied of particular matters if she is to grant a visa. Value judgments are ones in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: cp Norbis v Norbis (1986) 161 CLR 513 at 518 per Mason and Deane JJ; 540-541 per Brennan J; see too at 535 per Wilson and Dawson JJ. As Brennan J said, there is no difference in principle between the review of a judicial discretion and the review of an administrative discretion (161 CLR at 540). He pointed out that if a discretionary power were exercised in a way which a reasonable repository of the power might exercise it, that exercise of power is supported by the statute which conferred it, whether the discretion be judicial or administrative in nature.
[30] Brennan J went on to point out that appellate courts were more familiar with the usual confines within which judicial discretions might be exercised and were therefore more sensitive to an unreasonable exercise of such a discretion and more confident of their ability to detect error in its exercise. He said:
‘It is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience.’ (161 CLR at 541)
[31] When a court exercising its power to review an administrative decision concludes that, in accordance with the above principles, the decision is ‘unreasonable’ its conclusion must be a finding that in truth the power conferred by the statute has not been exercised and so a jurisdictional error has occurred. This a feature of the rule of law which forms a fundamental assumption upon which the Constitution is based: Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514 [103]-[104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The recognition by the Parliament, in statutory provisions like ss 368 and 430 of the Migration Act 1958 (Cth), that administrative decision-makers should give reasons for their decision and set out their findings, is a reminder to administrative decision-makers of an important aspect of the rule of law: namely, that they must provide the justification, in the reasons required by the statute to be given, for the exercise of the power with which they have been entrusted. And, the requirement to provide reasons is a means of ensuring that courts, when exercising the power of judicial review, are not obliged to approach their consideration of the exercise of the discretion in the same speculative way as in a case like Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
In this case the Tribunal member canvassed a large amount of evidence that was before the Tribunal, including detailed submissions. The written reasons for decision ran to 36 pages. There is much analysis of the evidence in that material, as can be seen from the brief passages set out above. The applicant is not able to point to specific findings that lack evidentiary foundation, or that are entirely inconsistent. It does not appear to me that the determination could be said to be irrational or illogical.
The central thrust of the decision is that the applicant, despite a range of political activities, work, and travel, has not been the subject of any serious harm in the past, and that the Tribunal was not satisfied that there was a real risk of serious harm for a Convention based reason in the future.
On the material before it, it appears to me that the tribunal's decision was clearly open to the tribunal. In the circumstances I therefore dismiss this ground for review.
Conclusion
I therefore find that the applicant has not established a ground for judicial review in this case. As a result I must therefore dismiss the current application
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
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