Ozberk, Kemal v The Minister for Immigration & Multicultural Affairs

[1998] FCA 1604

KEMAL OZBERK, BILGIYE OZBERK, PINAR OZBERK and PERVIN OZBERK v. THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
No. VG 36 of 1997
FED No. 1604/98
Number of pages - 10
Immigration - Evidence

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

MARSHALL J

Immigration - Evidence - Application to review decision of the Refugee Review Tribunal (the "RRT") affirming that Australia does not have protection obligations in respect of the applicants - whether cogent evidence before the RRT to form a conclusion regarding the authenticity of an impugned document - whether substantial justice achieved or whether the RRT was required to further investigate a document not considered to be genuine.

Migration Act 1958 (Cth) ss 420(2)(b), 476(1)(a).

Ozberk v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 249, referred to

Kemal Ozberk v Minister for Immigration & Multicultural Affairs, (Einfeld, Sundberg and Merkel JJ, 13 July 1998, unreported), referred to

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300, cited

Nilufer Demir v Minister for Immigration & Multicultural Affairs, (Ryan J, 19 October 1998, unreported), distinguished

Teoh v Minister for Immigration, Local Government & Ethnic Affairs (1994) 49 FCR 409, considered

Sinan Aras v Minister for Immigration & Ethnic Affairs, (Finkelstein J, 20 March 1998, unreported), followed

Duggal v Minister for Immigration & Ethnic Affairs, (North J, 25 July 1997, unreported), followed

Yazici v Minister for Immigration & Multicultural Affairs, (Whitlam J, 3 March 1998, unreported), followed

Resmiye Polat v Minister for Immigration & Multicultural Affairs, (O'Connor J, 25 March 1998, unreported), followed

Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553, referred to

Balwir Singh v Minister for Immigration & Multicultural Affairs (Full Court, 14 November 1997, unreported), followed

MELBOURNE, 30 November 1998 (hearing), 15 December 1998 (decision)

#DATE 15:12:1998

Counsel for the Applicant:	Mr I Gray
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The parties file and serve written submissions on the question of costs on or before 18 December 1998.

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

MARSHALL J

This is an application for an order of review under Part 8 of the Migration Act 1958 (Cth) ("the Act"). It is an application to review the decision of the Refugee Review Tribunal (the "RRT") made on 9 January 1997. That decision was that the applicants are not persons to whom Australia has protection obligations under the Convention relating to the Status of Refugees 1951 done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention").

BACKGROUND

On 19 January 1998 the Court delivered its reasons for judgment concerning a notice of motion dated 17 November 1997 which was filed on behalf of the first applicant, Mr Kemal Ozberk. That judgment is reported as Ozberk v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 249.

The factual background to the substantive application with which these reasons are concerned is sufficiently described in Ozberk at 250-251, where the following is set out:

"The applicants are Turkish citizens who entered Australia on 28 October 1995. The secondnamed applicant is the spouse of Mr Ozberk and the other applicants are their children. On 17 January 1996 the applicants applied for protection visas. On 28 May 1996 a delegate of the respondent refused the applications. On 4 June 1996 the applicants applied to the RRT for a review of that decision. The RRT conducted an oral hearing on 20 November and 9 December 1996.

The RRT accepted that the firstnamed applicant may have faced discrimination and harassment in his employment at a military air base in Turkey on account of his religion (Alevi Muslim) and his Kurdish ethnicity. However, the RRT went on to find that:

"The lengthy period of his employment with the military air base and his constant work history before this satisfies the Tribunal that he will not be deprived a (sic) livelihood should he return to Turkey. Therefore in relation to his claims that relate to his work place the Tribunal is satisfied that there is no real chance that the Applicant will face persecution for a Convention reason should he now return to Turkey."

The RRT was also of the view that had Turkish authorities sought Mr Ozberk they had ample opportunity to find him before his departure from Turkey. It also found that a document purporting to be a Turkish Court document requesting Mr Ozberk's arrest consequent on being sentenced to two years and eight months imprisonment was false (the first warrant). Further, the RRT disbelieved Mr Ozberk's allegation that he was arrested and detained by Turkish authorities in 1995. It took the same view of his allegation that he was beaten by the police in January 1994 by reason of the political activities of his brother.

As to Mr Ozberk's claim that he received adverse treatment from Turkish authorities by reason of his membership of the People's Democracy Party (HADEP), the RRT found that:

"His involvement seems to have been at a low level and consisted of attending meetings and distributing booklets and seeking donations."

The RRT found that Mr Ozberk faced no real chance of persecution on return to Turkey as a result of his membership of HADEP or his membership of an Alevi Association.

The RRT concluded by saying:

"... the Tribunal accepts that there is discrimination against both Kurds and Alevis. It is also clear that both Alevis and Kurds do blend into the broader Turkish community. Having rejected the Applicant's specific claims in relation to his political profile and in relation to his brother the Tribunal is satisfied that the Applicant does not face a real chance of persecution as a result solely of his Alevi religion or Kurdish ethnicity."

Central to the RRT's adverse findings on the credibility of Mr Ozberk was its view that the arrest warrant document was false. In coming to that view it relied upon a report from the Document Examination Unit (DEU)."

At 252 the Court dealt with the nature of the new evidence which was sought to be introduced by the notice of motion. The Court said:

"The first order (and only substantial order) sought by the notice of motion is that:

"The applicants have leave to refer to the evidence contained in the Affidavit of Kemal Ozberk sworn the 14th day of November 1997 and the exhibits thereto and the Affidavit of Karyn Anderson sworn the 17th day of November 1997."

The affidavit of Mr Ozberk referred to a telephone conversation that had occurred between Mr Ozberk and his mother in Turkey in mid July 1997. Mr Ozberk deposed that in this telephone conversation his mother informed him that Turkish police had handed her a warrant for his arrest (the second warrant). Mr Ozberk further deposed that his uncle travelled to Australia on 22 August 1997 bringing with him the second warrant. Mr Ozberk obtained the second warrant and an English translation of that warrant.

Ms Anderson is an employee solicitor who has the care and conduct of Mr Ozberk's application. Ms Anderson's affidavit explained how the second warrant came into her possession. It also referred to Ms Anderson's intention on behalf of the applicants to "adduce ... fresh evidence" before this Court, that "fresh evidence" being the second warrant. In addition the applicants' solicitors have caused to be filed two certificates of expert evidence under s 177(1) of the Evidence Act 1995 (Cth). The first certificate went to the authenticity of the first warrant which was found by the RRT to have been concocted. The second certificate went to the authenticity of the second warrant which was not before the RRT."

It was held that the Court did not possess the jurisdiction to admit the fresh evidence. An appeal was lodged from the judgment in Ozberk. The appeal was heard on 13 July 1998. On that day the Full Court refused the appellants leave to appeal. In its ex-tempore reasons for judgment the Full Court said in the first paragraph of those reasons:

"Leave to appeal should be refused on the ground that no important question of principle is involved in the application for leave. There is no reason why the point the applicants wish to make in this Court, that is to say, that the fresh evidence is relevant to the questions of law raised by the application, cannot be made on the hearing of the application."

See Kemal Ozberk v Minister for Immigration & Multicultural Affairs (Einfeld, Sundberg and Merkel JJ, 13 July 1998, unreported).

On 30 November 1998 the Court heard the substantive application. Mr Gray of counsel, appeared for the applicants and Mr Mosley of counsel, appeared for the respondent.

THE APPLICANTS' CONTENTIONS

Mr Gray submitted that the existence of the fresh evidence was relevant to whether the RRT had made an error of law in coming to its decision. The legal error claimed was said to arise by reference to s476(1)(a) of the Act. That provision permits the Federal Court to review a decision of the RRT on the basis that:

"...procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed."

It was submitted by Mr Gray that one such "procedure" was the RRT's obligation to "act according to substantial justice and the merits of the case". See s420(2)(b) of the Act and Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300.

Mr Gray contended that to do substantial justice the RRT should have further investigated the arrest warrant which it considered to be false.

Reliance was placed on behalf of the applicants on the recent judgment of Ryan J in Nilufer Demir v Minister for Immigration & Multicultural Affairs (19 October 1998, unreported). It was submitted that Demir "was on all fours" with this matter.

In Demir the applicant was a young Turkish woman who came to Australia for a holiday. She was granted a visitor visa in Turkey in July 1995 and arrived in Australia in August 1995. On 30 October 1995 Ms Demir applied for a protection visa. She was unsuccessful before a delegate of the respondent and before the RRT. Ryan J held that the RRT had erred in law and ordered that the matter be referred back to the RRT for further consideration according to law.

It was central to the Demir matter that Ms Demir heard, while she was in Australia, that the police in Turkey were searching for her concerning her attendance at meetings at which Kurdish issues were discussed. Ms Demir was a member of "a group of Kurdish students who held discussions about the pressure on Kurds and Alevis in Turkey". The application for refugee status was made as a result of the information she received indicating that the police were searching for her. Prior to that Ms Demir had intended to return to Turkey at the conclusion of her holiday to resume her studies.

Ms Demir's mother sent her an arrest warrant and charge sheet which she obtained in Turkey in respect of her daughter. The documents were examined by the Document Examination Unit (the "DEU"), which expressed, "reservations concerning the authenticity" of the charge sheet and "urge(d) caution in accepting" the arrest warrant "in the absence of other substantiating evidence".

The RRT did not accept that Ms Demir was "wanted for any offences in Turkey". It found that the documents "were created to assist the applicant's application for refugee status". It did not accept that the documents were genuine.

Ms Demir sought to admit additional evidence before Ryan J which would reflect on the genuineness of the documents. Ryan J admitted the evidence on a "limited basis". He held that, at 14:

"(I)t remains open to admit the evidence as going to the reasonableness or propriety of the enquiry which it is suggested the decision-maker should have made."

The short point raised by counsel for Ms Demir before Ryan J is the same point that is raised before me, that is "whether the RRT, in omitting to make further enquiries as to the authenticity of the documentary evidence before it, had failed to accord substantial justice to the applicant pursuant to s420 of the Act".

Ryan J said, at 18, that:

"It was argued that the report of the Document Examination Unit was equivocal in its assessment of the authenticity of those documents and that consequently the RRT should have made further enquiries before concluding that they were spurious."

His Honour held that "the critical question is whether the RRT made its findings of fact with that degree of certainty which made it unnecessary to ask "What if I am wrong?"" Ryan J held that there was an absence of real doubt in the RRT about the validity of the impugned documents. He said that "the internal evidence to which the RRT was referred was not, in my view, inconsistent with the authenticity of the arrest warrant and the charge sheet". His Honour noted that the RRT had acknowledged that the DEU "could not come to any firm conclusion" regarding the authenticityof the documents.

Critically Ryan J held that "the finding as to the authenticity of the challenged documents ...was the single finding on which the RRT's conclusion turned" and that the reasons of the RRT did not show that "it had no real doubt that its finding on that central question was correct."

His Honour acknowledged that "as a general rule" the RRT is not "obliged to make enquiries" by considering that there may be occasions where an "adequate consideration ...necessarily involves the making of some inquiry as to the facts." See Teoh v Minister for Immigration, Local Government & Ethnic Affairs (1994) 49 FCR 409, at 413 per Black CJ.

Ryan J expressed his conclusion as follows:

"Had the RRT established, after making enquiries of the kind which I have indicated, that the contents of the arrest warrant and charge sheet differed from what the standard forms of those documents as issued in Turkey usually contained, or that there were other features tending against their authenticity, I would have been more inclined to impute to it a lack of any real doubt about its finding that they were "concocted". However, in the absence of such further enquiries, I am unable to interpret the RRT's reasons as exhibiting that degree of certainty which would have absolved it from asking "What if I am wrong?" Since it is clear that the RRT did not apply that test before concluding that the applicant did not have a well-founded fear of persecution, it was guilty of an error of law and its decision must be set aside."

Mr Gray referred the Court to the following passage in the RRT's reasons for judgment in the instant matter:

"The purported court document indicates that on 16 October 1995 the Applicant was sentenced to two years and eight months imprisonment. This was before he departed Turkey on 28 October 1995. The translation indicates that the Applicant was sentenced for being active in a movement, engaging in ideological propaganda for leftist purposes. He is not charged with being a member of any illegal group and the wording is vague. In the Tribunal's view the Applicant's ability to leave the country after the alleged sentencing together with the wording of this document indicates that it is not genuine.

A report obtained from the Document Examination Unit expresses concern that in a country of 61 million people there is no official pre-printed form for an arrest warrant, that the 1^st Court of Justice of Peace and Penalty has no letterhead and the only features that 'authenticate' the document are two wet seals of simplistic design and poor quality. The author of the report expresses the opinion that the document is most probably false and he would strongly recommend that its authenticity be checked by the issuing body. In light of the Tribunal's finding that the arrest warrant is false this report from the Document Examination Unit confirms this view. The Tribunal is satisfied that the Applicant is not wanted by the authorities and has not been sentenced to imprisonment in Turkey."

Mr Gray submitted that the RRT expressed its view that the Court document was "not genuine" in not unequivocal language. He emphasised the use of the word "indicates" by the RRT in the first of the two paragraphs quoted above from its reasons. Effectively what was contended, on behalf of the applicants, was that the RRT had relied on two matters which tended to support a view that the document was not genuine rather than establishing that fact on a balance of probabilities. Mr Gray also submitted that reliance on the DEU opinion was not conclusive because the DEU opinion was expressed tentatively and itself strongly recommended further investigation.

THE RESPONDENT'S CONTENTIONS

Mr Mosley submitted that Demir was distinguishable because in the instant matter the RRT's reasons, when considered as a whole, show that it had no real doubt that its finding about the Court document was correct. It was further submitted that where a finding is a strong and confident one it is not necessary to pose the question, "What if I am wrong?"

Mr Mosley emphasised that the RRT did not accept that the event referred to in the Court document had occurred. He also referred to other adverse findings made by the RRT concerning the first applicant which contrasted with the position of Ms Demir. In the instant case the RRT's finding concerning the arrest warrant was the single finding on which the RRT's conclusion turned. Mr Mosley contended that such was "the key distinction...between these two cases".

The respondent relied on the judgment of Finklestein J in Sinan Aras v Minister for Immigration & Ethnic Affairs (20 March 1998, unreported). Aras was yet another matter which concerned an applicant from Turkey who was a member of the Kurdish community and of the Alevi faith. In that matter the RRT found that the applicant had relied on an arrest warrant which was "patently obviously a forgery".

Finkelstein J held at 7 that:

"It was quite legitimate for the Tribunal to form an opinion that the warrant was a forgery by having regard to the language and the appearance of the document. It was not incumbent upon the Tribunal before it made that finding to obtain expert evidence in that behalf. It is true that in some circumstances that will be an appropriate course for the Tribunal to follow before it makes a finding that a document is a forgery. But there is no obvious reason why that is a necessary step for the Tribunal to take in most cases (see Minister for Immigration & Ethnic Affairs v Surjit Singh (1997) 144 ALR 284) and certainly no obvious reason why the Tribunal should have done so in this case."

Mr Mosley also referred to the judgment of North J in Duggal v Minister for Immigration & Ethnic Affairs (25 July 1997, unreported). In Duggal the RRT made the following finding about an arrest warrant document which was relied on by the applicant:

"...the documentation submitted by the applicant is self-serving and designed to embellish his claim for refugee status. The Tribunal finds that the arrest warrant is not a genuine document."

North J, said at 5-6:

"...the applicant argued that the Tribunal had erred in law in failing to consider whether it should make its own enquiries into the authenticity of the arrest warrant. Under s 427(1)(d), the Tribunal had the power to require the Secretary of the Department to arrange for the making of any investigation which the Tribunal thought necessary with respect to the review. The applicant contended that the Tribunal misconstrued this power and thereby committed an error of law. The Tribunal did not refer to the existence of the power to have further investigations made. The applicant contended that the Court should find that the Tribunal was not aware of its power. Counsel for the applicant recognised that, if the Tribunal had been aware of its power and had exercised it against obtaining further evidence, no error of law as alleged would have been made out. In my view, there is no basis for the conclusion that the Tribunal was not aware of its power under s 427(1)(d). The Tribunal did not say, for example, that this was a case in which further enquiries should be made about the arrest warrant but it did not have the power to require that such enquiries be made. Further, the Tribunal made findings about the circumstances surrounding the evidence of the arrest warrant which gave it good reason not to trouble with further enquiries. It observed that the arrest warrant did not state any offence to which it was directed. Thus, even if it was authentic, it did not disclose whether the offence alleged related to any Convention matter. Further, the Tribunal did not accept the evidence of the applicant as to the circumstances of the receipt of the alleged arrest warrant. The applicant had been on notice, since 2 March 1995, during an interview which led to the initial decision of the ministerial delegate that the authenticity of the arrest warrant was in issue. He took no steps to have the validity of the warrant established in the later proceeding before the Tribunal. He did not raise before the Tribunal any difficulty which he had, or thought he might have, encountered in having the matter formally proved by reference to the authorities in India. And he did not seek to have the Tribunal obtain oral evidence under s 426(2) of the Act. These factors indicate that the Tribunal had no reason to refer to the need to have further investigations made. The circumstances do not demonstrate that the Tribunal was unaware of its power to make such investigations. No error of law has been shown in this regard."

Mr Mosley then referred to the judgment of Whitlam J in Yazici v Minister for Immigration & Multicultural Affairs (3 March 1998, unreported). This was yet another case involving a Turkish applicant of Kurdish ethnicity who relied on an arrest warrant. Mr Mosley relied on the observation of Whitlam J that matters of credit were for the RRT to determine.

In Yazici, with reference to documents relied upon by the applicant which the RRT found not to be genuine, Whitlam J said:

"The Tribunal member discussed both documents with the applicant's solicitor at the hearing. That much is clear. Unfortunately the transcript records as indistinct (at p 52) what it was that the solicitor said he would do with the first of those documents. What is apparent enough is that the applicant's solicitor did not suggest that the Tribunal should arrange an investigation of its authenticity under s 427(1)(d) of the Act. There is no basis for a submission, nor do I understand it to be submitted, that the Tribunal was not aware of its power under that provision. Accordingly, as North J explained in Duggal v Minister for Immigration and Ethnic Affairs (unreported, 25 July 1997) at pp 5-6, no error of law can be shown in the Tribunal's conclusion at paragraph 48 of its reasons."

Finally Mr Mosley relied on the judgment of O'Connor J in Resmiye Polat v Minister for Immigration & Multicultural Affairs (25 March 1998, unreported). The applicant in that case was also a Kurdish Alevi from Turkey. In Polat the applicant relied on an arrest warrant which the RRT was not satisfied was a genuine document. The applicant submitted before O'Connor J that the RRT was under a duty to make further inquiries about the authenticity of the document. O'Connor concluded at 9 that:

"I do not consider that there is, in this case, any denial of substantial justice. The decision-maker had no obligation to inquire in the way put by the applicant and the findings he made as both to credit of witnesses and the authenticity of the arrest warrant document were open to him. He was not obliged as a matter of law in order to do substantial justice, to adopt any further procedures."

Mr Mosley acknowledged that the Full Court in Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 recognised that there may be occasions when the RRT is obliged to make further inquiries in certain "rare" circumstances. He said that that issue was amplified in Balwir Singh v Minister for Immigration & Multicultural Affairs (Full Court, 14 November 1997, unreported).

In Balwir Singh the Full Court identified such a circumstance as when "faced with two documents which are mutually inconsistent, in the absence of any evidence to suggest which of them may be genuine, the Tribunal would be obliged to call for an independent investigation and report before accepting one but not the other".

However, the Full Court did add that:

"...it would be a hazardous path for the Court to tread to attempt to generalise about the circumstances in which the Tribunal's obligation to act according to substantial justice requires it to call for the investigation of and a report on the authenticity of a document, but it can be said with confidence that if there is cogent evidence upon which the Tribunal is entitled to form a conclusion, it may act on that conclusion without being obliged to take steps of its own to investigate the authenticity of the document in question."

CONSIDERATION

The critical issue for the Court in accordance with Balwir Singh is to determine whether there was "cogent evidence" on which the RRT was entitled to form a conclusion about the authenticity of the impugned documents and act on that conclusion without being obliged to take steps of its own to investigate their authenticity.

Significantly Balwir Singh is not referred to in Demir. However as Mr Mosley submitted Demir is distinguishable in that the sole basis, in that matter, for the claim for refugee status was the existence of the arrest warrant.

The "cogent evidence" before the RRT in the instant matter upon which it relied may be summarised as follows:

* the document referred to a date of sentence which pre-dated the first applicant's departure from Turkey

* there is no charge in the document that the first applicant was a member of an illegal group

* the wording of the document was vague

* the first applicant was able to leave Turkey despite the existence of the document

* the opinion of the DEU that the document was "most probably false".

In my opinion it follows that it cannot be said that there was no cogent evidence on which the RRT was entitled to form a conclusion about the authenticity of the impugned document.

The finding of the RRT on the authenticity of the document, contrary to Mr Gray's submissions, was a firm one. The use of the word "indicates" when preceding the words "that it is not genuine" in the RRT's reasons is not evidence of a tentative or equivocal approach by the RRT. The word "reveals" may have equally been used.

In contrast to the facts in Demir, I am unable to form the view that the RRT had any real doubt that its finding on the question of the authenticity of the document was correct. I am reinforced in that view by the RRT's reference to the DEU's "strong" recommendation that the authenticity of the document "be checked by the issuing body" and the RRT's decision not to take steps to ensure that be done. The better view appears to me to be that the RRT was so confident about its finding on this issue that it considered such a step to be unnecessary.

The passage cited earlier in these reasons from Aras is apposite to the facts of this case, where the RRT relied upon "the language and appearance of the document". Consistent with that approach are the judgments of the Court in Duggan, Yazici and Polat.

In my view the RRT, on the evidence before it, was entitled to form the view that the Court document submitted to it was false. It was also entitled to consider that topic, and other questions going to the credibility of the first applicant, to form a state of satisfaction that the first applicant was "not wanted by the authorities and has not been sentenced to imprisonment in Turkey".

Consequently, in my opinion the fresh evidence that is sought to be admitted on this application is not relevant to any question of law which can be successfully relied upon in the application. As no error of law is disclosed in the reasoning process of the RRT any fresh evidence sought to be adduced can have no utility. There was no obligation in the circumstances for the RRT to have further investigated the arrest warrant.

ORDER

In accordance with these reasons the application must be dismissed. As agreed between counsel, written submissions on the question of costs should be forwarded to my Associate shortly after the publication of these reasons. In the event of agreement about the question of costs a consent order should be filed. The Court intends to consider this matter expeditiously and will rule on the issue of costs as soon as possible. Whilst not wanting to foreclose any submission that the applicants may wish to make, given the result of the application, it appears to me, prima facie, that costs should follow the event including the costs of the proceeding before the Full Court.

The order of the Court is:

1. The application be dismissed.

2. The parties file and serve written submissions on the question of costs on or before 18 December 1998.