Sahin, Zulfikar v Minister for Immigration and Multicultural Affairs

[1998] FCA 236

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for review of decision of Refugee Review Tribunal not to grant protection visa - s 476 Migration Act 1958 (Cth) - whether decision was an improper exercise of power, involved an error of law, was not justifiable by evidence or was contrary to law - whether applicant had well‑founded fear of persecution on basis of political affiliation, ethnicity and religious belief - whether an error of law in decision

PRACTICE AND PROCEDURE - motion to dismiss summarily application for review for failure to comply with Court’s directions (O 10 r7) or for failure to disclose a reasonable cause of action in application (O 20 r2).

Federal Court Rules: O 10 r7, O 20 r2
Migration Act 1958 (Cth): s 476

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

ZULFIKAR SAHIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 537 of 1997

GOLDBERG J
MELBOURNE
26 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 537 of 1997

BETWEEN:	ZULFIKAR SAHIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	26 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applicant’s application filed 19 September 1997 be dismissed.

1. The applicant pay the respondent’s taxed costs of the application including the costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 537 of 1997

BETWEEN:	ZULFIKAR SAHIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	26 FEBRUARY 1998
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   There is before the court a notice of motion on behalf of the respondent seeking an order that the application filed by the applicant on 19 September 1997 be dismissed.  Two bases are advanced for the relief sought in the motion:  firstly, a failure to comply with a number of directions given by the court and secondly, on the grounds that no reasonable cause of action is disclosed by the application. 

The court has power under O 10 r7 of the Federal Court Rules to dismiss an application if a party fails to comply with a direction to take a step in the proceedings.  That situation has occurred here and in the ordinary course, certainly where parties are represented, I would act under that order, having regard to the default which has occurred in this case.  However, I am conscious of the fact that the applicant is unrepresented and does not have the benefit of legal assistance, and I consider it appropriate to address the motion to dismiss the application under O 20 r2, that is, on the grounds that no reasonable cause of action is disclosed.

The factual situation is that the applicant arrived in Australia on 26 March 1996, applied for a protection visa on 21 June 1996, which was refused by a delegate of the Minister on 31 October 1996.  The applicant applied to the Refugee Review Tribunal on 14 November 1996 to review that decision and on 13 August 1997 the Tribunal affirmed the decision under review.  On 19 September 1997 the applicant, through his then legal advisers, filed an unparticularised application in this Court to review the decision of the Tribunal. 

The grounds specified in s 476 of the Migration Act 1958 (Cth) (“the Act”) upon which reliance was placed, were that procedures required to be observed were not observed within sub‑para (1)(a); the decision was an improper exercise of power conferred by the Act within s 476(1)(d) and (3)(c); the decision involved an error of law involving an incorrect interpretation of the applicable law within s 476(1)(e); there was no evidence or other material to justify the making of the decision within s 476(1)(g), (4)(a) or (b), and finally that the decision was otherwise contrary to law.

No particulars of those grounds were given, notwithstanding the orders which were made, and it is not clear to me what is the real gravamen of the complaint that there was an error of law. As I pointed out to the applicant in argument, my task is a limited task. I cannot undertake a merits review, that is in effect hear the case again, and my jurisdiction is limited to determining whether any one or more of the grounds set out in s 476 - some of which are relied on by the applicant - have been made out.

The applicant told me this morning that he was unable to file documents in the case and wanted to tell the court verbally what he wanted to say and I gave him that opportunity for the purpose of determining whether I should exercise the power under O 20 r2 given to me to dismiss summarily his application.  What the applicant said was, in substance, that returning to Turkey is extremely difficult.  He said that perhaps he was unable to persuade the Tribunal of his case and although there is a risk in being separated from his wife and children who live in Turkey, he has no choice. 

He said that in Turkey his circumstances were such that details could not be revealed and had to be kept secret.  He was concerned about a videotape of what occurred on 1 May 1996, which I glean from the reasons of the Tribunal was a videotape taken of his involvement in a May Day march in Australia.  He also referred to the fact that passport photos of him had to be provided to the authorities in Turkey and he now feels unable to participate in activities with friends.

I have read the decision of the Tribunal with care in order to see, unaided by submissions, whether or not there is a basis for any suggestion or submission that the Tribunal made any error or fell into any of the grounds of review relied upon by the applicant and found in s 476. In the Tribunal's reasons for decision, it set out the background of the applicant. It correctly identified the relevant legislation and the Refugees’ Convention, properly identified the two-limb test set out by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, that is that the applicant must have a well-founded fear of being persecuted and in my view the Tribunal properly directed itself as to the law.

It then set out in considerable detail the claims made by the applicant and such evidence as was led before it to support his claims.  A number of those matters related to difficulties the applicant had experienced in Turkey and what he claimed to be certain political associations.  I need not go into those facts in detail other than to note that they were set out in detail by the Tribunal in its decision.  The Tribunal then noted and analysed and discussed the evidence before it and reached a conclusion that there was not any real chance that the applicant would face persecution as a result of his involvement in the May Day march on 1 May 1996.  The Tribunal also did not accept that any of the difficulties the applicant had with the authorities after he returned in 1993 had anything to do with his Kurdish ethnicity.  In relation to some other difficulties sustained by the applicant, the Tribunal was not satisfied that they occurred for a Convention reason.  In this regard the Tribunal had the advantage of evidence from other persons such as Mr Paul White who gave evidence about Turkey and Maritza Thomson, a psychologist.

The Tribunal was not satisfied that the applicant had suffered Convention related persecution in the past.  It is fair to say that there are a number of aspects of the applicant's evidence which the Tribunal did not accept, but the Tribunal's findings were open to it on the evidence.  Insofar as the Tribunal took an adverse view of the credibility of the applicant's testimony, it was open to it to do so on the evidence and recent decisions of this court have made it clear that it is open to the Tribunal to make findings on credibility in the course of determining whether the applicant has a well-founded fear of persecution. 

The Tribunal, after assessing all the evidence, formed the view that it was convinced that neither the applicant’s Alevi religion nor his Kurdish ethnicity would lead to a real chance of persecution should he return to Turkey and the Tribunal said having regard to its findings of fact, the same conclusion applied to his political opinion. 

In my opinion, the Tribunal did not fall into error in the way it approached the matter nor as best as I can determine it, are any of the grounds (albeit unparticularised) set out in the application made out.  I am therefore of the opinion that no reasonable cause of action has been disclosed by the applicant by reference to the grounds advanced in his application, and for that reason his application should be dismissed.  As I pointed out earlier, there are also grounds for dismissal because of failure to comply with orders.  That ground is made out but I would prefer to deal with the matter on the basis, having heard from the applicant this morning and having reviewed the Tribunal’s decision, that no reasonable cause of action is disclosed by the application.

The order of the Court will be that the applicant’s application filed 19 September 1997 be dismissed and that the applicant pay the respondent’s taxed costs of the application including the costs of the motion.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg

Associate:

Dated:               March 1998

Counsel for the Applicant:	Applicant in person
Solicitor for the Respondent:	Mr C Rawson Australian Government Solicitor
Date of Hearing:	26 February 1998
Date of Judgment:	26 February 1988