Polat, Resmiye v Minster for Immigration and Multicultural Affairs

[1998] FCA 267

FEDERAL COURT OF AUSTRALIA

MIGRATION - review of decision of Refugee Review Tribunal (“RRT”) - procedures required to by Migration Act not observed - consideration of fresh evidence in review proceedings - duty of decision maker to enquire and authenticate

Migration Act 1958 (Cth): ss 420; 427(1)(d); 476(1)(a),(e)

Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (unreported, 23 December 1997, Full Court) distinguished
Festum Habte v Minister for Immigration and Multicultural Affairs (unreported, 13 November 1997, Davies J) considered
Shantha Karunaratna Jayasinghe v Minister for Immigration and Multicultural Affairs (unreported, 25 June 1997, Goldberg J) considered
Kemal Ozberk & Ors v Minister for Immigration and Multicultural Affairs (unreported, 19 January 1998, Marshall J) considered
Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 considered
Balwir Singh v The Minister for Immigration and Multicultural Affairs (unreported, 14 November 1997, Full Court) considered

RESMIYE POLAT & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 264 of 1997

O’CONNOR  J
MELBOURNE
25 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 264  of   1997

BETWEEN:

RESMIYE POLAT
FIRST APPLICANT

HASAN POLAT
SECOND APPLICANT

SINEM POLAT
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

O'CONNOR J

DATE OF ORDER:

25 MARCH 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 264 of 1997

BETWEEN:

RESMIYE POLAT
FIRST APPLICANT

HASAN POLAT
SECOND APPLICANT

SINEM POLAT
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	O'CONNOR J
DATE:	25 MARCH 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal (“RRT”) made on 2 May 1997, affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the first applicant or to the second and third applicants, as members of the family unit of the applicant.

The grounds of review included in the application are:

• that procedures required by the Migration Act 1958 (Cth) (the “Migration Act”) to be observed by the RRT in connection with the making of the decision were not observed and amounted to a substantial denial of justice (s 476(1)(a) of the Migration Act).

• the decision involved an error of law being an incorrect application of the law to the facts as found by the RRT (s 476(1)(e) of the Migration Act).

The applicants seek an order that the decision of the RRT made on 2 May 1997 be quashed and a declaration that on 2 May 1997, the first applicant was a person who had a well-founded fear of persecution and was entitled to the grant of a protection visa and the second and third applicants were members of the family unit of the first applicant and thereby entitled to the grant of a visa.  Alternatively, the applicants seek an order that the application for determination of their refugee status be referred to the RRT to be further determined according to law.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“Refugee Review Tribunal’s way of operating

420  (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)  The Tribunal, in reviewing a decision:
(a)      is not bund by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case.

...

Powers of Refugee Review Tribunal etc

427  (1)  For the purpose of the review of a decision, the Tribunal may:
...

(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

...

Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)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;

...

(e)that the decision involved an error of law, being an error involving an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because she is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, she is a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Factual Background

The applicant is a 37 year old national of Turkey and married with three children.  She describes herself as a Kurdish Alevi.  The applicant received a primary education in Turkey and has never undertaken paid work.

The applicant operated a small mixed business with her husband but they had to close the business after they were discovered as Kurdish Alevis and there was an organised boycott of their business.

Between 1989 and 1994 the applicant claims the Turkish police, perceiving her family to be Kurdistan Workers’ Party (PKK) supporters, frequently came to her house and questioned her and her family about whether her family provided support to PKK.  She claims that she fled her home in Kayseri in September 1994, after she had been detained overnight by the police during which time she was threatened with death.  The applicant fled to Izmir where she was not identifiable as a Kurdish Alevi and that she did reveal her background to the local villagers.  She claims that she also used a false name to evade authorities.  She conceded that she enrolled her daughter at school in her own name and her husband was registered in his own name with the relevant authority in Izmir.

An arrest warrant dated 8 April 1995 was issued against the applicant.  The applicant claims that she used the assistance of persons sympathetic to the PKK to obtain her travel documentation and a police clearance before leaving Turkey on her own passport.  She arrived in Australia in April 1996 on a visitor visa.

An application for a protection visa was lodged on 24 June 1996.  The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 26 September 1996.  An application for review of the delegate’s decision was lodged on 4 October 1996.  The application for review was rejected by the RRT and their applications for a protection visa refused on 2 May 1997.

RRT’s Decision
The RRT discussed the various claims made by the applicant and made the following findings:

In relation to the applicant’s claim that she and her husband had to close their small mixed business due to a boycott after discovery that they were Kurdish Alevis, the RRT found that:

“... in considering all the circumstances, the Tribunal does not find it plausible that her racial origins were discovered only a decade, in a business that was frequented by all-comers, or that any such discovery after such a longer period of time would have resulted in a boycott that rendered the business unviable.”

The RRT further noted that although there is considerable evidence that Kurds generally are disadvantaged in Turkey, there was no material available to indicate that a person such as the applicant would face adverse consequences amounting to persecution in Turkey on the basis of her race.

The RRT found that the fortnightly visits or thereabouts to the family home by the authorities were directed to her brothers and was not satisfied that any investigation involving the applicant or occasional damage to the family home amounted to persecution of her for a Convention reason.

In relation to the applicant’s claim that she fled to Izmir after having been detained overnight and that she hid from authorities who had an arrest warrant against her, the RRT noted that the applicant was traceable, at least through her daughter, but remained unharmed and undetected for some nineteen months after her alleged detention.  Moreover she was able to secure a passport and a police clearance before leaving Turkey using her own name.  Even if, as the applicant claimed, she was able to secure her documentation only through payment of a bribe, the fact that she and other members of her immediate family were able to depart Turkey legally, is a strong indication that the authorities did not have an interest in her.

The RRT stated:

“The Tribunal is not satisfied that the applicant had any association or perceived association with the PKK.  It is implausible, in particular, that she would have been able to leave Turkey legally if the authorities had any interest in her.”

In making this finding the RRT found the applicant had fabricated her claims.  The RRT did not find either the applicant or her sister (a witness for the applicant) to be witnesses of truth.  It was not satisfied that documentation lodged in support of the applicant’s claim were genuine and found that the content of the documentation was contrived and self-serving.

In relation to the applicant’s referral of the RRT to a range of country information concerning the situation of Alevis and Kurds in Turkey, the RRT noted there was ample evidence that many Kurds have been subjected to persecution in Turkey in recent times but found:

“The applicant in this case  ... has made no credible claim of involvement in overt political activity or problems arising out of any political association of any other family member.  If her brothers were ... involved with the PKK, the fact that she has not encountered serious harm in the past as a result of any such association indicates the absence of a real chance of serious harm now or in the foreseeable future; ...”

The RRT concluded:

“In considering all the circumstances of this case, including cumulatively, the Tribunal finds there is not a real chance as defined by the High Court in Chan’s case, that the applicants would face persecution now or in the foreseeable future for any Convention reason if they were returned to their country of origin.”

Motion to allow consideration of fresh evidence
At the hearing of this matter the applicant sought an order that she have leave to file three affidavits so as to have this evidence before the Court at the hearing.  None of the evidence sought to be tendered was before the Tribunal at the time it made its decision.

Counsel for the applicant conceded that the material could not in an application for judicial review be used to contradict evidence before the Tribunal.  However relying on a recent decision of the Full Court of the Federal Court, (Sun Zhan Qui v Minister for Immigration and Multicultural Affairs, unreported, 23 December 1997) he submitted that material of this kind could be used in review proceedings if it was probative of the issue as to whether the decision-maker ought, in the circumstances of the case, to have made particular enquires.

It was agreed by the parties that the three affidavits be received by the Court and the question of their being admitted be considered in this decision.  They were accepted and marked on that basis.

In Festum Habte v Minister for Immigration and Multicultural Affairs, an unreported decision of Davies J, 13 November 1997, he said relevantly,

“The only function of the Court is to determine whether there was an error of procedure or an error of law in the Refugee Review Tribunal’s decision”.

It is well established that the Court has no power to remit this matter to the Tribunal unless an error of law or an error of procedure amounting to an error of law is established.

As Goldberg J in Shantha Karunaratna Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (unreported, 25 June 1997), stated, on the making of a decision, the Tribunal is functus officio.  That case was not one where the Court was being asked to review fresh evidence however, it does support the conclusion that to remit a matter to the RRT having considered such evidence in the review proceedings would, as Marshall J said in Kemal Ozberk & Ors v Minister for Immigration and Multicultural Affairs (unreported, 19 January 1998);

“... be that the Court viewed the new evidence as evidence upon which the RRT would be most likely to revisit the issue of the authenticity of the first warrant and come to a different view on that factual issue”.

Having regard to the above statements of principle, it will be a very particular case where what was done by the Full Court in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs would be appropriate.  This case is different to that which was before the Full Court.  Where the issue was whether having asked to enquire, the Tribunal made no enquiry at all and the truth or falsity of a particular fact, which was not discovered, was central to the decision.  Nothing in the affidavits tendered and marked assisted any issue of law before me.  Rather I considered they invited the Court to conduct a merits review.  I do not therefore propose to admit them.

A duty to inquire and authenticate?

Counsel for the applicant submitted in this case that the failure of the decision-maker to make further inquiries about a document before him before making findings as to its authenticity amounted to a failure to act according to “substantial justice” pursuant to s 420(2)(b) of the Migration Act.

Counsel conceded that if his submissions on that ground were not successful this application would fail.  The affidavits sought to be tendered at the hearing were all directed to this matter.

S 427(1)(d) gives the Tribunal power to make any investigation it thinks necessary with respect to a review and furnish a report.  This however was exercised in this case in relation to tendered documents which were sent to the Document Evaluation Unit (DEU) for examination.  The Tribunal considered the report from the DEU which made comments on the document but did not express an opinion one way or the other as to its authenticity.

The principles governing the Tribunal’s duty to enquire in these circumstances was considered by the Full Court in Minister for Immigration and Ethnic Affairs v Singh 144 ALR 284, in which the majority (Black CJ, von Doussa, Sundberg and Mansfield JJ) said at pages 290 to 291:

“Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within s 476(1)(a), the question is whether the obligation to act according to substantial justice requires the tribunal to make an inquiry of the nature suggested here.  The way in which the tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case.  ...

... Section 427(1)(d) empowers the tribunal to require the secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the tribunal’s role in cases that come before it for review is not a passive one although the circumstances in which the tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.

In our view the respondent has fallen short of showing that the tribunal’s failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice.   The tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come.   ..

Although we have concluded that there may be circumstances in which the tribunal’s obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge’s general proposition that, where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the tribunal was under a duty to verify in such cases.   In a particular case the tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect.”

This statement of principle was considered and approved in Balwir Singh v The Minister for Immigration and Multicultural Affairs, unreported decision of Lockhart, Olney and von Doussa JJ, delivered on 14 November 1997, where they said:

“... 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.”

In the present case the applicant submits the investigation was inadequate and the steps taken before making the decision should have included an overseas inquiry in relation to the authenticity of the document.  The main basis of the complaint is that the Tribunal at page 49 of transcript said:

“What I am proposing to do having heard all of the evidence today is, in the first instance, to obtain a copy of Ms Kaya’s application because clearly the concerns about credibility in relation to the timing of the arrest and to events leading to going to Izmir from Kayseri are also matters that bear on the authenticity of the documentation that has been submitted and given that I am not - given I think there are credibility issues with regard to that and it is a quicker process to get her file and see if that resolves things one way or the other.

That is what I will do in the first instance.  Then what I am proposing to do is if I need to get further information about the documentation then I will notify Mr Ham about that.”

He carried out these proposals.  Having read Ms Kaya’s file and considering it to be adverse to the applicant, he gave Mr Ham, the applicant’s representative, an opportunity to make submissions which he did by letter (CB - 92ff).  He did not make any overseas enquiries in relation to the authenticity of the document.  The decision was then made.

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.

At the time of the making his decision and the findings in relation to the document the Tribunal had carried out the following steps:

(a)had the document assessed by the DEU;

(b)heard the applicant in relation to matters which were raised by the DEU;

(c)consulted the file of the applicant’s sister to consider issues of credibility which bore on the authenticity of the document;

(d)further invited the applicant, through her representative, to make submissions on the matters that he had uncovered in the sister’s file.  A substantial submission was made in response to that invitation.

The decision-maker relied on all this material in making findings on the matters relevant to this decision and made no legal error in so doing.

As the other ground of review was not pressed by the applicant I have not considered it in making this decision.

The application is dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Connor

Associate:

Dated:             25 March 1998

Counsel for the Applicant:	Peter Rose
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Warren Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 March 1998
Date of Judgment:	25 Marc h 1998