MZZAL v Minister for Immigration
[2013] FCCA 392
•3 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZAL v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 392 |
| Catchwords: MIGRATION – Application for judicial review of Refugee Review Tribunal decision – applicant claimed fear of persecution as a Kurd in Turkey – Tribunal accepting some of the applicant’s claims but not believing others – whether Tribunal considered applicant’s claims – whether claims were or should have been considered cumulatively. |
| Legislation: Migration Act 1958, ss.91R(2), 91R(1)(b) |
| Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 NAHW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 399 Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473 W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383 |
| Applicant: | MZZAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1120 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 22 March 2013 |
| Date of Last Submission: | 22 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Panagiotidis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1120 of 2012
| MZZAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 January 2012. He necessarily requires an extension of time to bring his application as the application was only filed with this Court on 10 September 2012.
The first respondent opposes the extension of time, but on the sole ground that the extension would be pointless, given the lack of merit in the claim. Accordingly, and with the consent of both parties, the Court has heard submissions on the merits of the claim.
For the reasons that follow, I do not think that the criticisms advanced by the applicant of the Tribunal’s decision are made out and it follows that the application must be dismissed.
The Applicant’s claims
The applicant’s claims were first articulated in a statutory declaration declared on 27 July 2010 which accompanied his original application. He claimed, and there is no dispute, to be Kurdish and a Sunni Muslim. His statutory declaration (CB51-57) identified a number of concerns. The applicant claimed to have been teased at school. He claimed that an uncle who had been active in politics was detained for three months after the introduction of martial law. The applicant claimed that he had been the subject of discriminatory treatment during his military service after he sought to help another Kurdish soldier who was being unfairly treated.
The applicant claimed to have been threatened by security forces, while operating the family business, for selling pro-Kurdish publications. He claimed that his refusal to cease led to attacks by fascists and threats from them also. He said that he moved from his home town of Gaziantep to Kusadasi district of Aydin city in 1990 as a result of these matters and thereafter became involved with the HADEP (a Kurdish political party). The applicant claimed that in March 1997 he attended Newroz celebrations in Izmir organised by the HADEP and that on the way back to Kusadasi his ID was checked by the police and he was warned.
The applicant said he left Kusadasi in May 1997 and returned to Gaziantep and rarely attended the HADEP office there. He married in 1999 and refrained in the main from attending political activities organised by the HADEP.
The applicant claimed to have lost work in 1999 as a result of his Kurdish ethnicity. He further claimed that when he got a new job in 2001 security forces came and harassed him because many of his travel agency’s clients were Kurdish.
The applicant claimed that in 2002 he changed jobs and his political involvement was fairly intense and that in 2003 he was detained and questioned after he left the HADEP office. He was driven by the police to his home and a search of the home took place. He was assaulted at police headquarters before being released.
The applicant claimed to have ceased his political activities and attendance to the party because tension was very high and he was in a risk group.
The applicant changed jobs from time to time and appears always to have obtained better employment. He claimed that in 2006 he met
Mr Hakan Satil with whom he became close friends. Hakan was an active member of the DTP (another Kurdish party). Hakan was arrested in 2007 and the applicant went to try and help him in police custody but was himself arrested and assaulted.
The applicant went on to give details of further political activity and resulting fascist attack. In July 2009, the applicant left Gaziantep and went to operate the branch of his company in Ankara. He claimed that in the company of Hakan he was detained on the way to Gaziantep by bus by the police, and tortured and interrogated. He said that it was this that led him to come to Australia.
These claims are paraphrased in the decision of the delegate (CB182-183). It should be noted that the delegate took a very negative view of the applicant’s credibility and made a number of critical findings against the applicant which the Tribunal did not ultimately repeat. I note that the decision of the delegate, which was clearly provided to the applicant because a copy of it accompanied his application for review to the Tribunal, included a substantial tranche of country information (CB191-195).
The applicant’s submission in support of his Application for Review by the Tribunal, prepared by his lawyers, is at CB206-218. At CB207, the submission records:
“The Applicant indicated that his fear of persecution is based on his ethnicity, being Kirmanji Kurdish and his imputed political opinion, as he was involved with HADEP.”
The claims made by the applicant are set out at CB207-210 and are consistent with the matters I have already detailed above. The submission also sets out substantial amounts of country information. At CB213, the submission records:
“The Applicant suffered harm and received threats from the Turkish authorities because of his association and activities with HADEP, and fears that this is likely to continue should he be refouled.
We therefore submit the Applicant’s fears are well founded and should he be forcefully re-fouled, it would be highly likely he would face persecution.”
The Tribunal’s Decision
The Tribunal set out the details of the application and the relevant law. No submission has been advanced that any error is disclosed thereby. At CB224-230, the Tribunal set out inter alia the entirety of the statutory declaration which I have paraphrased above. The Tribunal noted the separately made claims of Mr Satil (Hakan) which it described as “very similar to those of the applicant” (paragraph 25 CB230).
At paragraph 28, the Tribunal reported further claims made at the interview with the delegate including an allegation that while he was living in Ankara and since he has come to Australia, the police asked his wife and mother about his whereabouts and why he went away. The Tribunal recorded at CB233-237 matters passing between him, the applicant and the applicant’s agent at the hearing and at CB237-245 set out relevant independent country information.
At CB245, the Tribunal came to the section headed “Findings and Reasons”. The Tribunal accepted that the applicant was a citizen of Turkey of Kurdish ethnicity (paragraph 79). The Tribunal asserted that, “the Convention reasons which arise in this case are the applicant’s ethnicity and his political opinion, actual and imputed”.
The Tribunal accepted that the applicant had experienced discrimination as a Kurd throughout his life, along with a large part of the Kurdish population, and accepted that he may have faced discrimination at school and during his military service (paragraph 81).
The Tribunal regarded the applicant’s evidence about losing two jobs because of his Kurdish ethnicity as “speculative”, but it found that this did not give rise to a real chance of the applicant coming to serious harm now or in the reasonably foreseeable future because those job losses happened a decade previously and the applicant had a successful career in his chosen industry thereafter (paragraph 82).
Having referred to the examples of serious harm set out in s.91R(2) of the Migration Act 1958 (“the Act”), the Tribunal said (paragraphs 83 and 84):
“83. … Even when looked at cumulatively, the types of disadvantage or discrimination which the applicant experienced in education and employment are not of a character which could constitute persecution: while he may been teased at school and may have been upset about having to change jobs, he was able to finish school and he went on to have a successful career in the travel industry.
84. The applicant’s involvement in Kurdish politics and the adverse consequences this had for him is at the heart of his claims for protection.”
The Tribunal went on to assess the matter of the applicant’s uncle’s political involvement and found that it did not give rise to any risk of reasonably foreseeable future harm because it all took place more than 20 years previously (paragraph 85). The Tribunal then went on to assess the applicant’s credibility in relation to his political involvement. The Tribunal noted that:
a)On the applicant’s own evidence, his involvement in Kurdish politics was very limited until 2002 (paragraph 87).
b)The applicant claimed that, after being questioned in early 2003, he was not involved in politics until early 2006 when he joined the DTP (paragraph 88).
c)His role in the DTP was similar to what it had been with HADEP including talking to people about joining the party and promoting the party’s position on issues and mediating between police and protestors at a Newroz celebration (paragraph 88).
d)The applicant claimed that his involvement with the DTP continued from 2006 until mid 2009 when he left Gaziantep to set up office in Ankara (paragraph 89).
e)The applicant claimed to have been questioned in 2007 (paragraph 90).
f)The applicant demonstrated a very clear understanding of the reasons underpinning Kurdish demands for recognition and greater autonomy (paragraph 91).
At paragraphs 93-95, the Tribunal found:
“93. On his own evidence, the applicant held no office in a party and his main role was talking to people, one on one or in small groups, about the circumstances of the Kurdish people and what to do about it, at meetings and elsewhere as opportunities arose. The Kurdish issue is very well ventilated in Turkey and has been extensively communicated; independent information from the European Commission confirms that there is in Turkey media and public debate on a range of sensitive topics including the Kurdish question. The Kurdish voice has without doubt been heard and there has been sophisticated political thinking and strategising by Kurdish leaders for many years. There is now significant political representation at the national and local levels. What the applicant told me about what he was saying at meetings and to individuals was what was being and is said very widely in Turkey.
94. The applicant’s other activity involved meetings and discussions at the party offices; helping with crowd control for Newroz celebrations including in 2006 where he argued with police; providing some money to the DTP; making placards and signs in accordance with direction from the party hierarchy in Ankara; and handing out brochures, it appeared in the context of election campaigning, and reading materials.
95. I accept that the applicant is a supporter of the Kurdish cause but, on the evidence before me, do not consider that the activities described by the applicant for the period of his involvement indicate that the applicant was anything more than a low level member of the BDP and a low level and intermittent participant in Kurdish politics.”
Having made that finding, the Tribunal went on to accept at paragraph 96 (CB249) that the applicant and his wife may have been subjected to monitoring by the police but concluded that this did not of itself amount to persecution. The Tribunal went on to say, however, that the real question was whether the applicant was mistreated as he claimed.
The Tribunal found that identity checking in March 1997 had no further implications for the applicant because nothing else happened to him until 2003 (paragraph 98). Accordingly, the Tribunal found that the applicant having his details taken in Izmir in 1997 did not give rise to a real chance of serious harm for the applicant.
The Tribunal went on to accept the applicant’s 2003 claims about the events at paragraph 102:
“I note that it was in the previous year that the applicant has said he became more involved with HADEP. Notwithstanding the applicant’s rather muddled evidence about where he was picked up, it was a long time ago now and I accept that in 2003 he was so apprehended, that his house was searched and that he was mistreated by being kicked and released the next morning.”
The Tribunal went on to deal with the 2007 incident. This was the incident where the applicant said he was arrested when he went to help Hakan Satil at the police station. The Tribunal’s finding, relevantly, is at paragraphs 104 and 105:
“104. I note that Hakan Satil’s account of the episode is largely consistent with that provided by the applicant. After considering the applicant’s statement and the evidence he gave at the hearing, I do not believe the applicant’s account of Hakan Satil’s presentation and its consequences. The applicant stated in his protection visa application that the police who were questioning him let him view the presentation notes but he told me at the hearing that the police did not show him the material; the applicant suggested that what was in his statement on this matter was a translator’s error but, having regard to all of the evidence, I do not accept that this explains what is a major discrepancy which goes to the heart of what occurred at the time. Nor do I accept that a presentation on the history of the Kurds to some 15 people in Gaziantep in 2007 would have incited such intense interest on the part of the security authorities: as already stated, the Kurdish question is very well ventilated in Turkey and views on it and how to solve it are expressed openly. It was an election year and 35 candidates from the BDP were elected from districts in the south eastern part of Turkey; the Kurdish issue was plainly on the political agenda in the area and widely discussed. Hakan Satil’s statement which is on the Department’s file, on its face corroborative of the applicant’s claims, is outweighed by these reasons.
105. As well, I have in mind independent information which indicates that the people most likely to suffer harassment or worse on account of their political activity or the expression of political views are journalists, politicians, people with a significant involvement with Kurdish parties or human rights defenders. The applicant does not have such a profile. This is not to say that supporters without such a profile will not come to the adverse attention of the security authorities - I have had in mind instances of lack of proportionality in the authorities’ response to the expression of opinion in support of the Kurdish cause - but, having regard to the difficulties with the credibility of the applicant’s account for the reasons already given, I do not accept that the applicant has given a truthful account about the presentation given by Hakan Satil and its consequences. I do not accept his account of being arrested, detained and mistreated for the reason he has claimed in 2007.”
The Tribunal went on to find that as a result it could not accept the applicant’s assertions of threats after the 2007 Newroz celebration in Gaziantep.
The Tribunal went on to consider the applicant’s claims about the incident in 2010 (CB251). At paragraph 107, the Tribunal said:
“The third time when the applicant claims to have been detained and questioned by police was in February 2010. The applicant stated in his protection visa application that he was with Hakin Satil and that day in Ankara observed that they were being followed. Later, on the bus going to Gaziantep, they were removed from the bus by police, forced into a van and blindfolded, and tortured and interrogated. The applicant said he was told not to go to the party and not to be involved in its activities. I note that the applicant had been living in Ankara since mid 2009 and had not been involved in any DTP activities for some three or four months after his arrival there. He was establishing the Ankara office of Flamingo Tourism and going home to Gaziantep every weekend or every second weekend, a long journey of some 10 hours each way by bus. Having regard to the profile of the applicant - he is a supporter of the Kurdish cause and not more than a low level member of the BDP and a low level and intermittent participant in Kurdish politics - I do not consider it plausible that the applicant had a significant profile as a DTP or BDP person in Ankara, or before in Gaziantep, and I do not accept that he was followed, detained, questioned and mistreated as he has claimed occurred in February 2010.”
The Tribunal went on to say at paragraph 109:
“In summary, I accept that the applicant experienced checking and some harassment by security personnel in the course of ID checking and associated inquiries about his travel. I accept that his details were taken after the Newroz celebration in Izmir in 1997 (but I do not consider this gives rise to a real chance of the applicant coming to serious harm on return nor now or in the reasonably foreseeable future); and that his house was scarched and he was taken to the police station for questioning in 2003 and that he was kicked on his legs at this time. I do not accept any other evidence the applicant has given about the adverse consequences of his involvement in Kurdish politics.” (sic)
The Tribunal went on to consider whether the applicant faced a real chance of persecution should he return to Turkey. The Tribunal correctly, in my view, noted that past experience is relevant to the assessment of the chance of persecution upon return, but the Tribunal’s task would be to look to the future and see what the risks of persecution were. I note at paragraph 111, the Tribunal said:
“the Tribunal must look forward to see if there is a real chance that the applicant would, on return to Turkey and in the reasonably foreseeable future, face a real chance of persecution because of the Convention reason of Kurdish ethnicity and his political opinion, actual or imputed, about the Kurdish issue including in support of the BDP.”
The Tribunal noted at paragraph 112 a finding that the applicant had not come to the adverse notice of the security authorities since 2003. The Tribunal noted that the applicant had been able to establish a good career in the tourism business and to move about to live in three cities. The Tribunal found at paragraph 113 that such discrimination as the applicant might face upon return was not sufficient to meet the criterion set out in s.91R(1)(b) of the Act as it would not amount to serious harm. The Tribunal found “the character of what the applicant might experience on account of discrimination against Kurdish people is not of that order, even if I look at it cumulatively”.
The Tribunal went on to consider the second ground of the applicant’s claim, namely those matters related to his political opinions. At paragraphs 114 and 115, the Tribunal said:
“114. I have considered the applicant’s claim to fear persecution as a supporter of the Kurdish cause and a member of BDP and in doing so have had regard to what happened to him in 2003 when his house was searched and he was taken to the police station for questioning and kicked on his legs at this time. I note that one episode in which he claims to have come to the attention of the authorities, in 1997, was long ago and in my view does not give rise to a real chance of coming to serious harm now or in the reasonably foreseeable future, and I have found not credible the other instances he described as having occurred in 2007 and 2010.
115. I accept that if the applicant returns to Turkey he will continue to hold the political opinion he has expressed in the past in relation to the circumstances of the Kurdish people and the Turkish political landscape.”
Having referred, in paragraphs 116 and 117, to country information about the persecution of Kurdish politicians and people engaged in Kurdish party activity, the Tribunal found at paragraph 117:
“Following consideration of the applicant’s evidence about the nature and extent of his political involvement, I found that the applicant is a supporter of the Kurdish cause, a low level member of the BDP and a low level and intermittent participant in Kurdish politics. His profile is not one which gives rise to a real chance of detention and mistreatment by the authorities.”
The Tribunal then dealt at paragraph 118 with the fact that ordinary supporters of BDP might be arrested or mistreated and noted:
“Such short term detention is not necessarily of a character which constitutes persecution, although there may be instances which do (reports about instances showing a lack of proportionality on the part of the authorities has already been noted). The applicant might experience such harassment and perhaps such short term detention if he were to return to Turkey and continue his involvement in Kurdish politics as he has in the past but, having regard to his profile and the credible evidence of what happened to him in the past, the chance that he would come to serious harm as a result at the hands of the security authorities is in my view remote.”
The Tribunal then dealt briefly with two other matters not of any significance at the present moment and concluded that the applicant would not face serious harm persecution for a Convention reason if he were to return to Turkey in the reasonably foreseeable future and found that his fear was not, therefore, well founded.
The Grounds of the Amended Application
Ground 1
The Tribunal asked itself the wrong question and/or failed to deal with an integer of the applicant’s claim.
The particulars given to this ground amount to the proposition that the Tribunal limited itself to considering whether the applicant would face future harm on the basis of his actual political activities and involvement and failed to deal with his claim that he faced chance of persecution on the basis of his imputed political involvement.
Counsel for the Applicant submitted, both in written submissions and orally, that the imputed opinion ground was clearly raised and that the Tribunal’s decision, when looked at in detail, showed that only actual political opinion had been analysed. In fact, so far as I can see, only imputed political opinion was actually raised by the applicant but, even assuming this to be correct, it was clearly appropriate for the Tribunal to consider actual political opinion as well as this was a clearly discernable claim arising from the materials.
Criticism was advanced by counsel for the applicant that the Tribunal not only failed to consider the question of imputed political opinion, but also failed to consider country information that security forces regularly harassed villages believed sympathetic to the BDP. It was submitted that if the Tribunal considered the applicant’s imputed profile and/or imputed political opinion, it would have turned its mind to the cumulative risk factors as set out at paragraph 33 of the applicant’s written submissions.
While both parties have sought to draw solace from case law, it seems to me that in the end it is a matter of reading the Tribunal’s decision as a whole and discerning whether or not the Tribunal did what it clearly said it had done, namely to consider the applicant’s actual and imputed political opinion (see paragraphs 80 and 111).
In my view a fair reading of the Tribunal’s decision shows that it did indeed conduct the exercise it asserted it had conducted. The grounds of application raised only imputed political opinion. The Tribunal carefully researched and rehearsed the evidence given by the applicant and the country information. The conclusion that the applicant was a low level political activist was one clearly open to the Tribunal on the materials.
This being so, the Tribunal came to the conclusion that the applicant would not face a risk of serious harm as a result of his political opinions, whether as conducted in the past or likely to be conducted in the future. Given the facts disclosed by the case as found by the Tribunal, there was no necessity to consider actual and imputed political opinion in some separate way as, in my opinion, the findings made by the Tribunal were clearly equally applicable to both.
It follows that this ground must fail.
It should be noted further that the Tribunal did not fail to have proper regard to country information and, indeed, the conclusions that the Tribunal reached as to this aspect of the matter made express reference (see for example paragraphs 116 and 118) to the information in the context of the finding.
Ground 2
The Tribunal misapplied the “serious harm” test in its assessment of the applicant’s claims and/or asked itself the wrong question in determining the applicant’s risk of harm if detained upon return to Turkey.
The particulars given under ground 2 include that the finding of the Tribunal strongly supports the inference that it misapplied the serious harm test given the credible evidence of the applicant’s past experiences when detained included a period in 2003 when he was interrogated, threatened and assaulted by security forces. It is asserted that the Tribunal failed to consider the process of interrogation and detention that the applicant would be subjected to and what would happen to him if he was unable to convince them that he was only a low level participant as found by the Tribunal.
This ground was refined in oral submissions into two parts. First, it was submitted that the Tribunal fell into jurisdictional error in its conclusion at paragraph 118 (CB253) that short detention if he were to return to Turkey and continue his involvement in Turkish politics did not amount in the context of the applicant’s profile to serious harm.
The second matter was said to arise from the decision of Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 and this was the failure to consider what would happen to the applicant if he was suspected of falling within the category of people actively engaged in Kurdish party activity, in particular party officials, people with leading roles and activists (see paragraph 42 written submissions of the applicant).
In my view the short answer to the first point is that advanced by the first respondent. The finding of the Tribunal at paragraph 118 is not attended by jurisdictional error. It is true that the finding that what happened to the applicant in 2003 did not amount to serious harm within the meaning of the Act would be one in which minds might very well differ. It should be noted, however, that the test is one that looks to the future (see NAHW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 399 at [18] per Allsop J).
The Tribunal found that the applicant’s low profile made the risk of serious harm to the applicant out of the sort of matters referred to in paragraph 118 remote. That was a finding that was open to the Tribunal to make.
In so far as the applicant relies upon the decision in SZQPA at [59], in my view that matter turns on completely different facts. In that case the Reviewer had accepted that the applicant’s four brothers had been killed because of their imputed membership or association of the LTTE when the applicant had provided assistance to the LTTE and the applicant would be detained and interrogated upon return to Sri Lanka. Accordingly, the finding of the Federal Court of Australia that the Reviewer needed to consider whether the process of detention and interrogation would expose the applicant to a risk of serious harm amounting to persecution was scarcely surprising. The facts of that case are radically different to those here.
In my opinion the Tribunal did, in fact, consider whether the detention of the applicant in the form indicated at paragraph 118 would expose the applicant to a risk of serious harm amounting to persecution but decided that it did not.
It follows that this ground of application is not made out.
Ground 3
The Tribunal failed to consider an integer of the applicant’s claim in the form of a behaviour modification claim that clearly arose on the material before it.
In the particulars given to this ground it is asserted that the applicant claimed to have ceased his political activities after 2003 for a period of time because he was in a risk group and that the Tribunal failed to consider the claim that the applicant had modified his political activities to mitigate the harm from others and that this matter was relevant to the overall assessment of his profile and to the assessment of whether he had a well founded fear of persecution.
In my view the submissions of the first respondent in this regard are correct. It is clear from the applicant’s accepted history that the only time he claims to have ceased his political activities was from 2003 to 2006, although the applicant is correct to submit that this was because of fear of risk. The applicant resumed his activities and continued until he left Turkey.
The applicant’s written submissions assert at paragraph 50:
“The Tribunal made findings on the basis that the applicant’s political activities would continue as they had in the past, at a certain level and on an intermittent basis, without considering whether the manner in which the applicant had practised his politics was a voluntary choice uninfluenced by fear of harm. In fact, the Tribunal did not answer any question at all regarding the modification of his political practice and the implications this would have for whether he had a well founded fear of persecution upon return …”
In Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 Sundberg and North JJ said at [6] that the following propositions are made out:
(a) The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal’s task is to assess what the applicant will do, not what he or she should do. (authority omitted).
(b) If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. (authority omitted).
(c) The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.
The difficulty with the applicant’s submission on this point, and reliance on the decision of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, in my opinion, is that in fact the Tribunal made no finding that the applicant would modify his behaviour out of fear of serious harm if he was returned to Turkey. To the contrary, the Tribunal found the applicant had resumed and maintained the same level of political activity between 2006 and 2010 as he had previously in 2002 to 2003. The Tribunal found that he would continue the same level of activity should he return.
Given that the levels of political activity, both before and after the incident of mistreatment in 2003 which had caused the applicant to cease political activity, were exactly the same, it does not seem to me that the Tribunal’s decision can be characterised in the fashion that the applicant contends for.
It follows that this ground must be dismissed.
Ground 4
The Tribunal failed to consider the applicant’s claims cumulatively.
The applicant strongly submitted that the Tribunal was, in the circumstances of this case, required to consider the separate interrelated claims of the applicant and consider whether collectively they engendered the relevant risk. The claims included the following (see paragraph 54 applicant’s written submissions):
· The applicant’s discrimination over the years on account of his ethnicity.
· The applicant’s encounters and experiences with the security forces in 1997 and 2003.
· The threats (those accepted by the Tribunal) received by the applicant over time; and
· The monitoring by the security forces of the applicant and his wife “on occasion”.
It is clear that there is authority tending to emphasise different conclusions in this field. In W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21] French J (as his Honour then was) said:
“It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant - Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan's case these were described, in the submissions put to Katz J, as "risk factors". They were causative factors which might collectively engender the relevant risk.”
In Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at [49] McHugh J said:
“The language of “cumulative effect” adds nothing. The absence of a substantive complaint of an error of law in this ground (as opposed to a quarrel with a factual finding dressed up as an error of law), combined with the failure to make out grounds 3 and 4, compel the conclusion that ground 5 is not made out.”
That decision has been followed in various decisions referred to in the first respondent’s written submissions and I note the following extract from the decision in NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383, where Tamberlin J said at [21]:
“it is hard to see how, if it is found that there is no substance in any of the individual claims, there could be any higher alternative claim based on a cumulative series of negative findings. Second, on a fair reading of the reasons for decision, it is clear that the RRT had regard to the totality of the evidence before it …”
Here, of course, by no means all of the assertions made by the applicant were rejected. His claims of the 1997 and 2003 events were accepted, as were his general complaints of discrimination in childhood and adult life on the basis of his Kurdish ethnicity.
Nonetheless, doing the best I can to distil some element of commonality in the two lines of judicial thought referred to above, what seems to me to be said is that the Tribunal is required to consider the whole of the applicant’s claim.
Bearing in mind that whether or not a case should be looked at cumulatively will depend necessarily upon the claims made in the circumstances of each case, I think that the Tribunal cannot be said to have fallen into jurisdictional error in this regard. Read fairly and with an eye not overly tuned to the perception of error, it seems to me that the Tribunal had in mind all of the claims the applicant had made, and some of which it accepted. The decision was made in the light of all these materials and was cumulative in the sense indicated both by French J in W352 and by Tamberlin J in NAOI.
It follows that the Tribunal did not fall into jurisdictional in this regard.
Conclusion
None of the applicant’s criticisms of the Tribunal’s decision are established and the application will therefore be dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 3 June 2013
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