SBAK v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 731

FEDERAL COURT OF AUSTRALIA

SBAK v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 731

SBAK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.227 of 2001

MANSFIELD J
19 JUNE 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.227 OF 2001

BETWEEN:	SBAK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	19 JUNE 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.227 OF 2001

BETWEEN:	SBAK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	19 JUNE 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) for an order declaring a decision of the Refugee Review Tribunal (the Tribunal) given on 22 November 2001 to be invalid. If successful, the consequence would be that the applicant’s review before the Tribunal would still need to be determined.

2. The applicant is a national of Turkey.  The Tribunal accepted his personal history.  He was born in Kilcan Koyu village in the Kilis Province of Turkey.  Until some years ago, the Kilis Province was part of the Gaziantep Province.  It is south of Gaziantep, in the south-eastern part of Turkey near the Syrian border.  The applicant was educated in Gaziantep city between 1975 and 1987.  He is a self-employed farmer.  He speaks Turkish, and not Kurdish.

3. He left Turkey on 2 May 2001, eventually arriving in Australia on 1 July 2001.  On 30 July 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible to be granted that visa it was necessary that the decision-maker be satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). In practical terms, that meant that the decision-maker had to be satisfied that he is a “refugee” as defined in Article 1A(2) of the Convention, namely a person who holds a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and further that he is unable or, owing to such fear, is unwilling to avail himself of the protection of Turkey.

   THE CLAIMS

4. The applicant claimed to have a well-founded fear of persecution if he were to return to Turkey for two related reasons.  Firstly, he claimed that the authorities in Turkey imputed the political opinion to him of being a supporter of the Kurdistan Workers Party (the PKK), a separatist Kurdish revolutionary group, because he was called upon by the PKK to provide support and assistance to them as they passed his village from Syria to places into Turkey.  He told the Tribunal that he was, with others, picked on to provide that support because he lived on the outskirts of his small village, unlike his father who lived towards the centre of the village.  That support had been sought by the PKK apparently from about 1995, and was sought from any persons living on the outskirts of the village, whether of Kurdish or Turkish ethnicity.  The second claim to persecution was that the authorities, following the provision of support to the PKK, would detain and question the persons who had provided that support.  The applicant had been detained and questioned for short periods on a number of occasions for that reason.  However, because of his Kurdish ethnicity, or part Kurdish ethnicity as his mother is a Kurd, he and other Kurds were beaten, whereas Turks were not beaten in that process.  The applicant had not suffered such troubles in the 12 month period immediately preceding his departure from Turkey.

5. Thus, his claims to be a refugee were founded on persecution by reason of political opinion imputed to him, and his ethnicity.

   THE TRIBUNAL’S REASONS

6. The Tribunal referred at some length to independent country information about the position of Kurds in Turkey.  It accepted that there is some discrimination against Kurds in Turkey, including those who attempt to assert a separate Kurdish ethnic identity.  It noted also that many Kurds have integrated, and that there are large Kurdish populations in the major cities in Turkey.  Kurds do not “stand out” in Istanbul due to their ethnicity, and many Kurds live in different areas in Turkey and are able to lead normal lives.  It also accepted that there is an ongoing insurgency by the PKK to promote Kurdish separatism and that active measures are taken by the Turkish state in policing their activity and discouraging support for them.

7. The Tribunal, however, did not accept the applicant has a well-founded fear of persecution in Turkey by reason of any political opinion imputed to him, or by reason of his Kurdish ethnicity.  It did not accept his claim that he is in fact part-Kurdish.  It also concluded that he had fabricated his claims to have had any problem in Turkey either in relation to being called upon by the PKK to provide support, or then by being arrested by the authorities, or by being mistreated by the authorities.  It also considered the alternative that the applicant’s claim to be part Kurdish might be correct.  On that assumption, it doubted whether the applicant in any event has any subjective fear of persecution by the Turkish authorities as he claimed.  It also found on the assumption that he held such a fear of persecution, any such fear would not be well-founded because there is but a remote and insubstantial chance of him suffering any harm in the reasonably foreseeable future by reason of his Kurdish ethnicity in any event.

8. Finally, and independently of those considerations, the Tribunal considered that even if the applicant’s factual claims were made out, it would not be unreasonable to expect him to relocate to another part of Turkey if in fact he has an actual fear of returning to his home area, or it suggested even to relocate to a more central part of his own village.  In that regard, the Tribunal applied the decision of the Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 particularly per Black CJ at 442.

   THE GROUNDS OF REVIEW

9. There were two grounds upon which the application under s 39B of the Judiciary Act was pressed.

10. First it was submitted that the Tribunal’s decision was beyond power “in that the reasoning process by which the Tribunal rejected the applicant’s evidence is seriously flawed”.  There were two flaws identified in the reasoning process.  They were firstly a failure to give any weight to evidence provided after the hearing before the Tribunal from a person who claimed to have known the applicant as a Kurd in Turkey and to confirm his mistreatment by the Turkish authorities, and secondly because its finding that the applicant’s province is not under a state of emergency and had not reported any PKK activity was inconsistent with independent information accepted by the Tribunal.

11. I do not accept either of those matters expose flaws in the reasoning process of the Tribunal in the way asserted.  Consequently, it is not necessary to determine whether those contentions, if made out, would demonstrate jurisdictional error in the sense explained by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [73] and [83]-[84] (Yusuf), or whether such jurisdictional error, if established, would give rise to an entitlement to an order under s 39B of the Judiciary Act notwithstanding s 474(1) of the Act.

12. At an early stage of the hearing, the Tribunal raised with the applicant why the authorities might identify him as Kurdish.  It pointed out that he has a Turkish name, that he speaks Turkish and not Kurdish, that he is married to a Turkish woman, and that he has served in the Turkish Army.  The applicant acknowledged all those things.  He said they had been imposed on Kurdish people in Turkey from 1980.  The Tribunal then asked:

    “But even if I were to accept those things, why would anyone think that you are Kurdish?  Indeed, in one part of your application you specifically say that no-one knows that you are of mixed background and you might have a Kurdish mother, and that the only people who would know this are your mother’s relatives.”

    Shortly afterwards, the Tribunal asked the applicant whether, apart from saying that he was part-Kurdish, he could prove it in any way.  At the hearing, the applicant did not offer the name of any confirmatory witnesses.

13. As noted above, subsequent to the hearing, the applicant through his solicitors did provide a statement from such a person.  The Tribunal referred to that statement in its reasons.  It gave no weight to it, because the applicant at the hearing did not refer to that person despite being asked whether he could present any independent evidence of his claims.  It said:

    “If such a witness was available why would he not have said so?  I consider this is because it is not true and the evidence is not reliable.  I accept that in some situations evidence is difficult to obtain.  In the applicant’s circumstances, however, he does not have a Kurdish name, does not speak Kurdish, could offer nothing at hearing by way of any evidence to establish that he was Kurdish, and he has said that in fact no-one knew of his part-Kurdish ancestry apart from his mother’s relatives.  He said at hearing that people in the village would also know.”

    In my view, it was open to the Tribunal to understand the applicant’s evidence in the way it identified.  In other words, it could properly have treated its request at the hearing of the applicant to provide the sources of any independent evidence of his claim to be a Kurd, and it could have regard to the fact that he did not at that time proffer the name of the independent witness who subsequently came forward.  It did not therefore misstate the position in a way which demonstrates any reviewable error by concluding from the failure of that person’s name then being volunteered that it should, and could, reject the evidence of that independent person.

14. The alternative or additional ground of factual error upon which the applicant relies concerned the independent country information.  It relates to a finding at the point in its reasons where the Tribunal is considering whether, if the applicant is part Kurdish as he claims contrary to the Tribunal’s acceptance of that claim, he might then have a well-founded fear of persecution if he were to return to Turkey.  It found, even on that hypothesis, that he does not have such a fear.  The applicant had told the Tribunal that he had experienced no PKK harassment or harassment from the authorities for about a year prior to his departure from Turkey.  The Tribunal said:

    “I consider that such a delay and lack of interest by anyone, in a province which is not under a state of emergency and which has not reported any PKK activity, clearly raises the issue as to whether the applicant has any subjective fear.  If I were to accept his claims then I would find under such circumstances that the [sic, he] does not have a well-founded fear of persecution in that there is a remote and insubstantial chance of his suffering any harm in the reasonably foreseeable future.”

15. There is no significant difference in any of the independent country information to which the Tribunal referred, and which it accepted.  It included information, which the Tribunal quoted, that it is not likely that armed PKK fighters would have been approaching villages in Gaziantep Province in the last few years asking for food and money, and that since 1995 most PKK guerilla activities have been contained to only a few provinces further east. 

16. Having accepted generally the independent country information, the applicant contends that the finding of the Tribunal that his province has not reported any PKK activity must be erroneous because that independent information included reference to fighting involving the PKK spilling over into the neighbouring provinces such as Gaziantep and that it had a significant military presence in Gaziantep at some point.

17. The particular independent country information from which the Tribunal appears to have taken the passages to which it referred to explicitly in that section of its decision dealing with its “findings and reasons” includes information about the role of the PKK extending from 1978 until recent years.  It is correct that such information confirmed that the PKK in earlier years had been active in the Gaziantep Province (and presumably the Kilis Province to its south, originally part of the Gaziantep Province).  It also indicates, as the Tribunal has accurately quoted, that since 1995 most PKK guerilla activities have been contained to only a few provinces to the east of the Gaziantep Province (and as the Kilis Province is to the south of Gaziantep, to the east of the Kilis Province).

18. The Tribunal’s reasons are not to be read with an eye keenly attuned to the perception of error:  Minister for Immigration & Ethnic Affairs v Wu (1996) 185 CLR 259. The passage quoted at [14], where the Tribunal says that there has not been any reports of PKK activity in the applicant’s area, in my view must be construed as referring to any recent reports of PKK activity. It is necessary to do so to understand the independent country information to which the Tribunal referred as inconsistent. The Tribunal’s reference to no reports of PKK activity is in the context of considering the applicant’s recent experiences of PKK activity, or more correctly the absence of such experiences. When understood in that way, which I regard as a fair understanding of the effect of the independent country information, it does not demonstrate that the Tribunal made any finding inconsistent with it in that it overlooked that material. The Tribunal’s finding about the extent of recent PKK activities in Gaziantep is then itself not erroneous but fairly reflective of that information.

19. Accordingly, in my judgment, each of the findings of fact about which the applicant makes complaint are not demonstrated to have been erroneous.  The consequence is that the attempt of the applicant to impugn the Tribunal’s conclusions rejecting generally the applicant’s claims to be part Kurdish, to have had problems in Turkey by being called upon by the PKK to assist or to provide assistance to them, to have suffered harassment by the authorities for having done so and to have been mistreated by the authorities because of his Kurdish ethnicity, is unsuccessful.  Furthermore, the Tribunal’s conclusion that, even if he were of Kurdish ethnicity, it did not accept that he had a well-founded fear of persecution by reason of his ethnicity in the area in Turkey in which he lived is not shown to have been erroneous.

20. I note that, following the hearing, the applicant solicitors were given time within which to provide to the Tribunal further evidence and further submissions.  They provided two statements from persons in the Woomera Immigration Reception and Processing Centre.  One is the statement referred to in [10] above.  The other statement is of a person who claimed to have met the applicant whilst leaving Turkey.  It was not referred to by the Tribunal in its reasons for decision at all.  Counsel for the applicant did not argue that it was erroneous for the Tribunal not to have referred to that material.  In so far as it described conditions in Turkey, it was consistent with the general country information about PKK activities and about the way in which Kurds in Turkey are treated by the authorities.  In so far as it indicated that the applicant had told that person the same claims he had told the Tribunal, it is hearsay information only.  Given the bases upon which the Tribunal rejected the applicant’s claims, it would have made no difference to the outcome.  The Tribunal in its reasons is not obliged to refer to every piece of evidence to explain why it has been rejected, rather it should have – and has - referred to the evidence which it accepts to explain why it has reached its decision:  Yusuf.

21. The second ground of review upon which the applicant relied involves the direct application of the “Hickman principles”, that is the principles explained by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 617 – 618 in relation to privative clauses such as s 474(1) of the Act. The respondent acknowledges that s 474(1) of the Act must be read as being subject to those principles, in particular that the Tribunal must have made a bona fide attempt to exercise its power to immunise its decision from review under the aegis of s 474(1) of the Act. The applicant alleges that it did not make a bona fide attempt to exercise its power in this matter.

22. Principally that allegation is based upon an observation of the Tribunal in the course of the hearing which took place on 6 November 2001.  The Tribunal was discussing with the applicant, in the light of the independent country information, why he feared the authorities in other parts of Turkey, or indeed in any part of Turkey, because it had found he would not be identified by the authorities as a Kurd.  The Tribunal said:

    “Well I have difficulty in understanding how you saying [that the authorities oppress the Kurdish people] means that there is any effect on you.  Even if it were true that there is an increase in oppression or problems for Kurds you are not.”

    The passage, however, continues by referring to the applicant’s Turkish name, his Turkish paternal lineage, his Turkish language, his integration into Turkish life and such matters.

23. In my judgment, that reference in the Tribunal’s discussion at the hearing does not indicate that it had a mind closed to acceptance of the applicant’s claim that he is of part Kurdish ethnicity.  It was endeavouring to have the applicant explain why he feared the authorities.  His answer was to identify the oppression of Kurdish people.  The Tribunal was pointing out that the applicant is not to the external view necessarily Kurdish, as distinct from Turkish.  The words “you are not”, in context, simply mean that you do not appear to be a Kurd or that there are no apparent reasons why you would be thought to be a Kurd.  It would be erroneous, in my view, to place too much emphasis upon what is obviously a shorthand description of a state of affairs which the Tribunal had described more fully both at that point in its questioning, and earlier in its questioning, in its endeavour to understand why the applicant would be perceived by the authorities to be Kurdish, particularly in other parts of Turkey.  The only other bases upon which a lack of good faith is alleged relate to the two findings of fact which have been attacked.  As I have found that those allegations are not made out, and as I do not regard the passage about which emphasis was placed by the applicant through his counsel as demonstrating a closed mind at the hearing, I reject the contention that the Tribunal did not make a bona fide attempt to exercise its power.  Indeed, as I read the transcript of the hearing, it was endeavouring earnestly to identify as clearly as it could the nature of the applicant’s claims, and to test them against independent country information and its own consideration of his claims to decide whether or not to accept them.

24. It follows that neither of the grounds of review raised by the applicant are made out.  In addition, in my view, the application must fail because the Tribunal provided an independent reason for rejecting the applicant’s claims, namely that he could relocate reasonably towards the centre of his village where, apparently the PKK did not seek help from villagers or, perhaps more significantly, that it would not be unreasonable for him to relocate reasonably to other parts of Turkey.  In reaching that conclusion, in my view, the Tribunal properly instructed itself about the test for relocation as explained in Randhawa, and referred to the material upon which it reached the conclusion.  It referred to the applicant’s appearance, his education, his ability to speak Turkish, his Turkish wife, and the fact that many Kurds have managed to assimilate and live in a quite safe and unimpaired manner in other parts of Turkey.

1. I have therefore reached the view that the application for review must be dismissed. I so order.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             13 June 2002

Counsel for the Applicant:	Mr A Crocker
Solicitor for the Applicant:	Refugee Advocacy Service of South Australia Inc.
Counsel for the Respondent:	Dr M Perry
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	31 May 2002
Date of Judgment:	19 June 2002