Onur v Minister for Immigration and Multicultural Affairs

[2000] FCA 1062

FEDERAL COURT OF AUSTRALIA

Onur v Minister for Immigration & Multicultural Affairs [2000] FCA 1062

Migration Act 1958 (Cth), s 476

SEYDI VAKKAS ONUR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 5 of 2000

R D NICHOLSON J
27 JULY 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 5 of 2000

BETWEEN:	SEYDI VAKKAS ONUR Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	27 JULY 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 5 of 2000

BETWEEN:	SEYDI VAKKAS ONUR Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON J
DATE:	27 JULY 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal's decision was made on 8 December 1999. It affirmed the decision of a delegate of the respondent made on 16 September 1999 to refuse the application of the applicant for a protection visa.

2. The applicant is a national of Turkey who arrived in Australia on 13 June 1999.  His application for a protection visa was lodged with the Department of Immigration and Multicultural Affairs ("the Department") on 29 July 1999.  The applicant's circumstances are set out in findings of the Tribunal.  These have been summarised in the written submissions for the respondent.  I have read the reasons and examined the summary.  I am satisfied that the summary adequately states the findings of the Tribunal so that I now incorporate the summary of findings, paragraphs (i) to (xviii) in these reasons:

   (i)The Tribunal was prepared to accept that the applicant was an ethnic Kurd from Turkey's south-east.

   (ii)The Tribunal accepted that the three incidents described by the applicant in 1995/96, an episode where a friend spoke in Kurdish, 1997/98, conflict on a construction site and later in 1998, an unhappy exchange at a post office, actually occurred but found that these were significantly isolated incidents, each dependent on substantially random and spontaneous conditions.

   (iii)The Tribunal could accept that once taken in by Turkish police over something as small as a civil disturbance, an ethnic Kurd may well suffer more harsh treatment than an ethnic Turk.  However, the evident number of contingencies that needed to fall in place in order for this to occur did not lead the Tribunal to the conclusion that the applicant faced a real chance of such treatment in the future.

   (iv)With the arguable exception of the incident in which his friend broke into what was regarded as a taboo language the applicant had never been arrested and consequently mistreated just for being viewed by the authorities or anyone else as a Kurd, in isolation of any other factors.  In his own life time the applicant could only cite three past incidents that put him in front of the police.  These facts did not indicate a real chance of convention related persecution in the future and on the applicant's overall evidence, in spite of his many claims, the Tribunal was not satisfied that he had acted in fear of such prospects either for himself or his family.

   (v)The Tribunal found that overall the applicant's own history of what he was doing over these last nine years did not support his claims as to the danger he had faced or which lie potentially ahead of him.

   (vi)The Tribunal was not satisfied on the evidence before it that the applicant had lived a life that was in any way substantially curbed by a subjective fear on his part of convention related harm.

   (vii)The Tribunal accepted as reliable the large number of independent sources giving evidence to the effect that persons in some parts of Turkey who are perceived to be ethnic Kurds or who are perceived to be asserting their Kurdish ethnicity face a higher risk of societal discrimination and harassment and of being arbitrarily arrested and mistreated by Turkish authorities.  The Tribunal took into account the post Ocalan crackdown but found that whilst at some stages this had been reportedly indiscriminate, the authorities had been reportedly seeking activists and persons suspected of PKK and HADEP membership which on his evidence the Tribunal did not accept the applicant to be.

   (viii)The Tribunal considered reliable the independent evidence contradicting the position that merely being born in Turkey to parents of Kurdish ethnicity attracted a real chance of convention related persecution wherever one lives in Turkey and whatever one does or does not do.  This evidence led the Tribunal to reject the position that merely being a young adult male of ethnic Kurdish background was enough to attract a real chance of persecution for reasons of race or imputed political opinion.

   (ix)In this case the Tribunal considered it very significant that the applicant departed Turkey alone under conditions that he claimed could be very grave for the family he left behind.  Consideration of the applicant's family's evidently unscathed situation in Turkey against the independent country information as to what may easily happen to people in the circumstances he claimed led the Tribunal to the conclusion that the applicant was not the kind of person the authorities were seeking, let alone for the reasons he had asserted.

   (x)The Tribunal did not accept as reliable the applicant's reasons for not mentioning PKK or HADEP support activities in earlier evidence to the department.  In any event, the level of support he claimed to have given was very slight, marginal, sporadic and minimal.

   (xi)The applicant did not satisfy the Tribunal at all that Mr Murat, who assisted the applicant to leave the country, circumvented a single formality at the Turkish end of his adventure.  The Tribunal did not accept on the evidence before it that Mr Murat's services were in any way necessary for the purposes of helping the applicant flee Turkey in circumstances that would otherwise have prevented it due to his race or imputed political opinion.  The Tribunal concluded on the applicant's evidence that Mr Murat's services were crucial only for the purposes of getting him out of Indonesia and quite effectively into Australia.

   (xii)The applicant's evidence about his first passport further convinced the Tribunal that obtaining one for the purposes of freely departing Turkey was not a problem for him.  His evidence about getting married and settling down after addressing himself to the imperative of fleeing Turkey further undermined his position in the application.

   (xiii)The Tribunal concluded that the applicant had embellished his claims significantly since he first applied for protection in Australia in July 1999.

   (xiv)The Tribunal concluded that the applicant's claim about his absence in Australia being perceived by Turkish authorities as one involving fraternisation with the PKK was fanciful.  The Tribunal also relied on the information given in DFAT Country Information Report 168/99 in finding that the applicant did not face a real chance of persecution or imputation of pro-PKK affiliation just for being deported home from an asylum country.

   (xv)The Tribunal was not satisfied that the denial of opportunities to learn Kurdish formally amounted to persecution of the applicant or that it was indicative of a real chance of future persecution.

   (xvi)The Tribunal concluded that in respect of many significant elements of his application, such as reasons for leaving his family behind in the claimed circumstances, and his claimed links with the PKK and HADEP, the applicant had been a frequently unreliable witness in this matter.

   (xvii)On the whole of the evidence before it the Tribunal was not satisfied that the applicant faced a real chance of convention related persecution in Turkey.  The applicant was not a refugee.

   (xviii)Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the convention and therefore did not satisfy the criterion for a protection visa.

3. The grounds on which the application is brought are in standard form used by detainees at the Port Hedland detention centre. The second of such grounds is that the decision involved an error of law in that the Tribunal made findings of fact not rationally supported by probative evidence. It also alleges there was a failure by the Tribunal to rationally consider the probative evidence. This is not a ground of review open to this Court for reasons I will now explain. Steps should be taken to ensure that applicants detained in Port Hedland do not continue to use forms of application containing grounds of application which on long-established authority and enactments by Parliament in the Act lie beyond the jurisdiction of this Court.

4. The nature of the jurisdiction of this Court is limited in two particular ways. The first is that it is not the function or jurisdiction of the Court to reconsider the applicant's case. The function of the Court in the exercise of its jurisdiction is to examine the decision of the Tribunal for the existence of any error of law. Secondly, the extent to which the Court can do that is governed by the terms of s 476 of the Act. By the terms of that section Parliament has limited the scope of the jurisdiction for review in this Court. There is no ground of review provided for in s 476 in terms of the second ground of the application. Additionally, in

   
   

   s 476(2)(b) Parliament has made clear that it is not within the jurisdiction of the Court to consider whether a decision involved an unreasonable exercise of power in the terms set out. Also it is made clear by s 485 of the Act that this Court does not have any jurisdiction other than that deriving from s 476. Even if the Tribunal engaged in illogical reasoning in finding facts, a wrong finding of fact would not be an error of law. The second ground of application cannot succeed.

5. That leaves the first ground of application which is based on s 476(1)(e) of the Act. It falls into two parts. The first part is that the Tribunal was in error of law because it incorrectly interpreted the applicable law. I have read the reasons of the Tribunal under the headings "The Legislation" and "The Convention." Neither under them nor under the subsequent part of the reasons is there any evidence that the Tribunal incorrectly interpreted the applicable law. The first part of this first ground does not succeed.

6. The second part of the first ground is that the Tribunal was in error of law because it made an incorrect application of the law to the facts.  I have set out the findings of fact above.  As appears from a reading of these findings, the only conclusion open to the Tribunal based on them was that which it reached.  There is no evidence that the Tribunal incorrectly applied the law to the facts.

7. The applicant has appeared before the Court unrepresented.  He presented a written statement to the Court and made oral submissions.  His written statement, which was in the Turkish language, was translated to the Court.  It emphasised that his case was based on persecution said to arise or be likely to arise from, firstly, his Kurdish ethnicity; secondly, his membership of the political organisation PKK and, thirdly, the circumstances of his departure from Turkey.  All of these matters were the subjects of findings of fact by the Tribunal in relation to which no error of law has been established.

8. It follows that the grounds of the application not having been made out, the application must be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate:

Dated:             27 July 2000

Applicant appeared for himself
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 July 2000
Date of Judgment:	27 July 2000