SZDWD v Minister for Immigration
[2005] FMCA 602
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWD v MINISTER FOR IMMIGRATION | [2005] FMCA 602 |
| MIGRATION – RRT decision – Alevi Kurdish Turk – fear of imprisonment and torture due to political opinions – Tribunal found not to be well‑founded – whether findings gave rise to apprehension of bias – jurisdictional error not found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 483A, Pt 8
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002; A [2003] HCA 30
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
Thevendram v Minister for Immigration & Multicultural Affairs (2000) 182 ALR 290
| Applicant: | SZDWD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1867 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 21 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Archibald |
| Solicitors for the Applicant: | Refugee Advice & Casework Service (Australia) Inc |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1867 of 2004
| SZDWD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 April 2004 and handed down on 20 May 2004. The Tribunal affirmed a decision of the delegate refusing a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In relation to a matter such as the present, that jurisdiction is conferred by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I must be satisfied that the Tribunal decision is affected by jurisdictional error before I can set it aside and order a further hearing into the matter. I cannot myself decide whether the applicant’s claims should be believed or whether he qualifies for the visa as a refugee.
The present applicant arrived in Australia in February 2002, and on 28 March 2002 an application for a protection visa was lodged on his behalf by his present solicitors. Attached to the application was a five page narrative setting out his claims to satisfy the definition of “refugee” under Article 1A of the Refugees Convention.
The applicant said he was a Turkish national aged 27, whose parents were of Kurdish Alevi origin. His father was a teacher who had been posted away from the Kurdish region, and had encountered police interrogations. He said: “Life was extremely difficult for us growing up in these areas because of our cultural background”. When he was fifteen, in 1989, he was taken into detention, interrogated and mistreated after police broke up a May Day march in Istanbul which he attended. When studying at university between 1994 and 1997 he was harassed and threatened by right wing students due to his Alevi Kurdish background. After one incident, he was taken into custody by security personnel. In 1997 he attended a legal peaceful march by Alevi and their sympathisers which was forcibly disrupted by police, but he was “able to get away with my uncle”. In May 1998 when he attended a Workers Day march in Istanbul which was disrupted by police, he was taken into detention, interrogated, beaten and held until the next day.
The applicant said that during his compulsory military service he performed sixteen months as a Second Lieutenant and was sent to a Kurdish area. Here he was directed to participate in operations involving searches of the local community. He said: “My involvement in these operations was very traumatic, as I knew that the operations were not valid or justified. My concerns were very obvious as I did make comments that expressed my thoughts and conscious”. In one operation he witnessed the killing of three young males of Kurdish Alevi background, which “affected me immensely psychologically”.
After his service ended in 2000, and on the day after he returned home, he was taken by police and questioned about this incident. He said: “My life was threatened and I was told that I should not speak of any of the incidents I was involved with or there would be consequences”. He said that subsequently “on two other occasions I was subjected to the same situation. I was scared because I knew that they were not going to leave me alone”. He came to Australia on a visitor’s visa, and said: “I know if I return back there will be repercussions for my actions. My wish is to live as a normal individual with no concern of fear. I would like to express myself culturally and be a responsible person with a future ahead of him”.
The applicant’s solicitors subsequently forwarded a lengthy submission and country information in support of the application. The applicant was interviewed by a delegate on 12 June 2002, in the course of which he elaborated his claims. This included presenting “vivid photographs of the dead youths”, which he said he had taken “spontaneously”.
On 24 July 2002, the delegate refused the application. She provided lengthy reasons for this decision, which examined the applicant’s claims and assessed country information concerning the situation of Kurds in Turkey. The delegate concluded that the applicant “does not face a real chance of suffering Convention based persecution if returned to Turkey and that this fear of persecution on return is consequently not well founded”.
The applicant applied for review by the Tribunal on 6 August 2002, assisted by his solicitor. His application said: “I have explained my claims to DIMIA in writing & at interview. I can provide further details as required”.
On 17 July 2003, his solicitor forwarded a brief statement by the applicant which said: “plain clothed police officials have been going to my fathers house questioning them about where I currently am and that they are looking for me. They have also been searching in Xtown (attached documentation clarifies this)”. The attached documentation was translated, and purported to be an arrest warrant issued in October 2002 by the Public Prosecutor’s Office at Xtown for the applicant’s arrest, to execute a sentence of 6 months imprisonment for “acting against the provisions of the Rallies and Demonstrations Act” at Xtown in December 2001. Other police documents were also enclosed.
On 16 October 2003 the applicant attended a hearing by the Tribunal, accompanied by his solicitor, a witness and two “observers”. The transcript is in evidence before me. He subsequently submitted further material, including a statement by his father, a letter from a Federal MP, a report from a clinical psychologist, and a submission from his solicitor. The last of these was said to be in response to a query by the Tribunal which “put to the applicant at hearing that the Turkish military usually takes more drastic action against dissidents than was taken in the applicant’s case”.
I note at this point that I was not taken to anything in the Tribunal’s proceedings prior to the Tribunal’s handing down of its decision, including in the transcript of the hearing, which might suggest that it had closed its mind prematurely and did not make a proper and impartial investigation of the applicant’s case. Certainly, no suggestion of this was made in any submission from the applicant’s solicitors, who had very actively represented their client and had attended the hearing.
Indeed, counsel for the applicant accepted in his submissions to me that the transcript showed a Tribunal appearing genuinely to investigate the applicant’s claims without any appearance of a pre-determined opinion or prejudice against him, and allowing the fullest opportunity to the applicant to put forward his case. He did, however, rely on one aspect of the hearing which I shall consider below as “particular m.”. Counsel for the applicant said at the end of his submissions: “The transcript shows a hearing that appears fair … nothing on the record raises a reasonable apprehension of bias”. This accords with my own assessment of the passages of the transcript to which I was taken.
The Tribunal handed down a decision and reasons on 20 May 2004, which affirmed the delegate’s decision. In its reasons, the Tribunal carefully set out the evidence put forward by the applicant to the Department of Immigration (“the Department”) and to the Tribunal. It said of the applicant’s evidence at the hearing:
The applicant’s claims to this Tribunal were consistent in all important respects with his earlier claims and evidence. Although he was obviously anxious and emotional at the hearing, he was responsive to the Tribunal’s questions and gave further details when requested. A tape‑recording of that hearing is held on the Tribunal’s file. Given the consistency in his evidence I will not repeat his claims here, but I will note only particular aspects of his oral evidence.
The Tribunal then in five pages detailed aspects of the applicant’s claims on which he was questioned at the hearing. It is unnecessary for me to describe this further, since it was not suggested by counsel for the applicant that it showed evidence of biased or improper decision‑making. It was not suggested that anywhere in the first 19 pages of its reasons the Tribunal overlooked a claim made by the applicant or misrepresented the evidence put forward by the applicant. Indeed, in my opinion, in this – and in all parts of its reasons – the Tribunal shows effort to identify and carefully assess every aspect of the applicant’s claims.
Following its narration of the applicant’s evidence, the Tribunal set out extracts from “a wide range of independent evidence in relation to the general situation in Turkey, and the particular situation for Alevi Kurds”, which it said it considered. Again, although counsel for the applicant took me to a passage in that material, he did not suggest that the Tribunal overlooked anything of particular significance in the country information. He did not point to anything in this part of the Tribunal’s reasons as suggesting biased decision‑making.
Notwithstanding all the above aspects of the Tribunal’s procedures and writing of its reasons which pointed to fair and unbiased decision‑making by the Tribunal, the ground of jurisdictional error principally relied upon by the applicant in his amended application for review was “that the relevant circumstances are such that a fair‑minded and informed person might reasonably apprehend that the Tribunal may not have brought an impartial mind to bear on the decision”.
The framing of this ground reflects the test for apprehended bias which was applied to administrative tribunals in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27-32], and it is unnecessary for me to examine the test further. Nor, in view of my conclusions, is it necessary for me to examine the submission of counsel for the Minister that, as a consequence of s.422B of the Migration Act, the present applicant cannot complain merely of a reasonable apprehension of bias but must establish actual bias on the part of the Tribunal.
Counsel for the applicant sought to establish satisfaction of the test of apprehended bias by attacking significant factual conclusions of the Tribunal set out under the heading “Findings and Reasons”. He argued that the Tribunal made a “relentless” series of adverse conclusions without proper factual foundation, and that the “fair‑minded and informed” reader of the reasons given for these conclusions would form a reasonable apprehension of bias. Thirteen particulars (identified as “a.” to “m.”) of adverse reasoning were identified in the amended application in support of this ground, and these were addressed seriatim in counsel’s oral submissions. Counsel sought to persuade me that they separately and cumulatively showed “arbitrary unreasoned conclusions made without a scintilla of evidence” or reasoning of such irrationality or unreasonableness, so as to give rise to an apprehension of bias (citing Allsop J in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [12]).
As will appear from my examination of counsel’s 13 particulars below, I do not accept any of his contentions of unreasoned, unreasonable or irrational conclusions. However, generally, I consider that the applicant’s arguments amounted to no more than invitations to revisit the merits of conclusions which the Tribunal attempted to reach through rational processes of reasoning and which were open to it on the evidence before it. The complaint of “relentless” adverse findings made by the Tribunal in reality demonstrated no more than that the Tribunal had meticulously sought to address and make findings upon each element of the applicant’s claims. I consider that the well‑informed onlooker would conclude from reading the Tribunal’s reasons no more than that the Tribunal had attempted fairly and honestly to perform its duty to decide the matter after receiving all the evidence and submissions presented by the applicant, and to do so by rationally addressing that evidence. Even if some factual errors were made by the Tribunal when making its decision, I could not find that its reasons demonstrate bias under the test identified in Ex Parte H (supra).
I accept the submission of counsel for the Minister that, as presented by counsel for the applicant, the applicant’s arguments in support of the first ground in the amended application were a “disguised merits attack” in the manner described by the Full Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [14-15]:
14The appellant claims that the Tribunal did not act in good faith and that it was biased against him. The basis of this claim appears to be that the Tribunal preferred the independent evidence before it to the evidence of the appellant and his wife. As counsel for the appellant readily conceded this point really consists of his other two points rolled into one. He admitted that there was nothing on the face of the Tribunal’s reasons to suggest bias. He relied, however, on the way in which the Tribunal approached its task, including its rejection of the evidence of the appellant and his wife even when this evidence was not inconsistent with independent information.
15In our view this is a thinly disguised attempt to have this Court take issue with the Tribunal’s assessment of the merits of the appellant’s claim. The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker has prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134. Such allegations must not be lightly made; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. They also must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims. Whether this Court or the primary judge would have come to the same conclusion is not relevant. The reasons for its views given by the Tribunal are more than sufficient to rebut a claim of bias or lack of good faith. The primary judge also carefully analysed the Tribunal’s decision and observed that, even if the alleged errors were made out, they would not demonstrate lack of good faith on the part of the Tribunal. We agree with that conclusion.
I shall, however, address each of the applicant’s contentions, and in the process explain why I consider that the Tribunal’s ultimate adverse conclusion was based on legally permissible reasoning which was open to it on the evidence that was before it.
Particular a.: the Tribunal’s finding that there is no reasonable evidence that the applicant came to the adverse attention of the authorities because of his low‑level involvement with political groups and because of his informal political discussions
This particular focused upon a finding made by the Tribunal at the end of the following paragraphs:
The independent evidence before me does not support a conclusion that members of the Kurdish minority are persecuted in Turkey on account of their ethnicity as such. Indeed the situation for Kurds has improved significantly with the introduction of extensive human rights‑related reforms as Turkey attempts to meet the requirements for membership of the European Union (see independent evidence at pages 16‑17 above).
While I accept that the applicant suffered some level of harassment and discrimination at university and in relation to his employment, I am not satisfied on the evidence before me that because of being an Alevi Kurd he was subjected to serious harm and systematic and discriminatory conduct as required by the Convention (see discussion at page 3 above). Nor am I satisfied that he now has a well‑founded fear of being persecuted in Turkey on the basis that he is an Alevi Kurd.
However the applicant claims that as an Alevi Kurd he has, in various situations, expressed his opposition to the Turkish authorities and the Turkish state. I accept the applicant’s claim that from 1989 until 1998 he was politically active on certain occasions. I accept he attended May Day celebrations in 1989 and 1998. I accept that as a result he was held and questioned for 6 hours and overnight respectively, and that he was mistreated while detained. I accept that in July 1997 he attended a march to commemorate the Sivas massacre. Apart from these specific activities the applicant was not politically active in any public way. He was not a member of any political party or Alevi Kurdish group, although I accept his evidence that he sometimes discussed issues with friends connected with left‑wing political parties/groups and Pir Sultan. I accept that in a general sense he was aligned to these groups. However there is no reasonable evidence before me that the applicant came to the adverse attention of the authorities because of his low‑level involvement and connections with these groups, or because of his informal political discussions (emphasis added).
Counsel for the applicant argued that the last sentence in this passage (which I have emphasised) was defective because it failed to take into account the applicant’s evidence of his various arrests and detention. I do not accept this. Plainly, in its findings leading up to the sentence, the Tribunal has considered and accepted that he encountered incidents of detention and interrogation. The point made by the Tribunal in the criticised finding was that his general political opinions and “low‑level involvement” with political groups did not cause him relevantly to “come to the adverse attention of the authorities”. In effect, in this paragraph and subsequent paragraphs, the Tribunal found that the applicant at the time of its assessment did not have a well‑founded fear of persecution by reason of perceived past associations with a political party or political cause. I consider that this assessment was reasonably open to the Tribunal. I do not consider that it provides evidence of bias.
The Tribunal’s assessment of the applicant’s political profile continued into its next paragraph, which contained a finding which the applicant presented as the next particular of bias:
Particular b.: the Tribunal’s finding that it was not satisfied that the applicant’s past political involvement indicates that he would publicly express his political opinion if he were to return to Turkey.
This finding appears in the following paragraph:
While I accept that the applicant was detained briefly and mistreated in 1989 and 1998 because of his expression of his political opinion, the applicant’s own evidence does not suggest that he was a political dissident or that he was committed to the public expression of his support of the left‑wing, Kurdish cause. His political activities were sporadic and occasional and I am not satisfied that the applicant’s past political involvement indicates that he would publicly express his political opinion if he were to return to Turkey. I consider below the applicant’s claims regarding his military service and the demonstration he attended in Xtown in December 2001, but those matters apart the applicant did not express his political opinion in any public manner after May 1998. While his time as an army conscript from November 1998 would have limited his capacity to express his opinion publicly, he was not politically active in any significant way after his discharge from the army in February 2000. He remained in Turkey for a further two years. He was not a member of any political party or organisation, and he did not attend any demonstrations or marches. While I accept he might have discussed Kurdish political issues informally, I do not accept that this would now be sufficient to make him of adverse interest to the Turkish authorities and neither the applicant’s own evidence nor the independent evidence before me suggests that this is the case (emphasis added).
Counsel argued that the emphasised finding overlooked the following passage in the transcript of the hearing. This occurred at a point when the applicant was describing his efforts to find work after his military service ended:
RRT Member: so you didn’t work at all then. Did you think of moving into another area to try and get work?
Applicant (through interpreter): my job search continued. In the interviews they were asking about where you come from and what your beliefs are and what political opinion was. I was telling my views and where I come from some openly say that they didn’t want to work with me, others just avoid me.
I do not accept that the finding which is attacked shows that the Tribunal overlooked this evidence. The finding, as expressed, draws a conclusion from “the applicant’s past political involvement”, and makes an unclear assessment of whether it shows that he would “publicly” express his political opinion. I think that the Tribunal was probably considering whether he was a person who had taken a “public” political position in a manner more prominent than revealing his ethnic background and political opinions to prospective employers. I consider that its assessment was open to it. In any event, this finding was a minor aspect of the Tribunal’s reasoning, and I do not consider that it evidences bias.
Particular c.: the Tribunal finding that when the applicant was in the army he repeatedly and persistently refused to follow the orders of the senior officers in both the field and in other situations.
Particular d.: the Tribunal’s finding that it was implausible that the Turkish military would not respond in a much stronger way to the alleged disobedience and rebellion of the applicant.
These particulars refer to the two emphasised findings found in the following reasoning by the Tribunal, which followed immediately after the passages extracted above:
The applicant’s most serious problems arose during, and as a consequence of, his military service. He claims that throughout his term as a conscript he was constantly critical of the actions of the military and his senior officers. He claims that he repeatedly refused to follow orders, expressed his dissent, and gave contrary orders to the soldiers under his own immediate command. He claims that as a consequence he was excluded, called names and humiliated in front of the soldiers, physically harmed on some occasions, referred to as a traitor, and warned time and again that he would be taken before a military court on account of his conduct. He claims that after his discharge from the military the police continued this harassment of him by coming to his home in February 2000, November 2000, and November 2001 on which occasions he was again questioned and threatened. He claims that the authorities’ interest in him has increased since he left Turkey, and that he faces imprisonment and persecution if he now returns to Turkey.
While I accept certain aspects of these claims by the applicant, I find many of the applicant’s core claims to be exaggerated and unconvincing.
I accept that as an Alevi Kurd, and as an officer who at times expressed his opposing views to his senior officers, I accept that the applicant was subjected to some level of harassment and humiliation during his military service. However I find the applicant’s claims to the effect that he repeatedly and persistently refused to follow the orders of his senior officers in both the field and other situations to be greatly exaggerated and implausible. The applicant outlined on several occasions the responses from his commanders to his claimed refusal to follow orders (see evidence at pages 10‑11 above). However I find it implausible that the Turkish military would not respond in a much stronger way at that time if the applicant was continually rebellious from the beginning until the end of his military service, if he repeatedly refused to follow the orders of his superior officers, and if he constantly issued contrary orders to the soldiers under his command. As generally accepted by the applicant at hearing, the harshness of the disciplinary regime within the Turkish military is well‑known. The independent evidence referred to at pages 18‑19 above confirms that the armed forces operate a harsh regime. I therefore do not find it credible that in the face of such constant disregard for their authority the applicant’s military commanders did not take stronger action against him while he was still a conscript. On his own evidence he retained his rank of Second Lieutenant until the end and he was never demoted. He was never held in a military prison for his outright refusal to follow orders. Despite the constant threats that the applicant claims went on for most of his military service, he was never in fact taken before a military court and charged with any of the offences he had committed (emphasis added).
In relation to particular “c.”, counsel for the applicant argued that the Tribunal misstated, and exaggerated, the applicant’s claims by saying that they were “to the effect that he repeatedly and persistently refused to follow the orders of his senior officers in both the field and other situations”. He argued that this demonstrated that the Tribunal had brought a biased mind to its decision‑making. To make out his argument, counsel took me to relevant parts of the transcript.
However, in my view the transcript contains responses by the applicant which allowed the Tribunal to form the view that the applicant had claimed to have disobeyed orders repeatedly. For example, after questioning of the applicant about his claim to have refused to shoot the three people, this exchange occurred:
RRT Member: did you then, refuse to follow orders or express your opposition to these actions by the military on any further occasions?
Applicant (through interpreter): that happened before and after this event, because I was always against the actions that are being taken.
RRT Member: could you just tell me, we’ll go backwards in a minute, but could you just tell me particularly about the period afterwards.
Applicant (through interpreter): no event of this size okay, but they were always checking and controlling their tents, their houses, searching, and treating them very badly, and in every occasion I was not necessarily executing or performing their orders as they were given, or at times I was rebelling their orders.
RRT Member: so tell me how you did that. How did you rebel against their orders.
Applicant (through interpreter): for example he was ordering me to demolish their tents, I would say no I wouldn’t do that I can’t do that. And I was not allowing the soldiers to beat the people, and the commanders were interfering and they were getting angry.
RRT Member: and that was the same kinds of things that happened in the period before that incident is that right? (Sorry?) Sorry that’s the same kind of behaviour that you had prior to the incident?
Applicant (through interpreter): yes my general behaviour was the same.
I am not persuaded that counsel’s criticisms of the Tribunal’s findings identified in particular “c.” revealed anything more than that different Tribunals might have applied differing descriptions and assessments of the applicant’s evidence concerning his disobeying of military orders. His submissions did not, in my opinion, demonstrate evidence of a failure by the Tribunal to approach its decision‑making with an impartial mind.
In relation to particular “d.”, counsel for the applicant submitted that bias was shown in the Tribunal’s reasons for rejecting the applicant’s claim to have been continually rebellious. The Tribunal did this because it thought that this claim was inconsistent with “the harshness of the disciplinary regime within the Turkish military”.
I had difficulty following counsel’s argument. One strand repeated the argument that the applicant’s evidence did not allow the Tribunal’s description of his claims about his military service as being “continually rebellious”. However, in my opinion it was open to the Tribunal to form the view that the applicant claimed that he was notoriously rebellious throughout his service and that no significant disciplinary action was taken.
Moreover, the Tribunal had put this characterisation and concern to the applicant in the course of the hearing, and allowed him to refute or qualify it. The following part of the transcript is relevant:
RRT Member: so now just tell me a little bit more about the response by the military after this incident. For instance, they threatened to put you before military court and yet from what you said you continued to oppose them in various ways. You continued to refuse to follow orders.
Applicant (through interpreter): yes, these are orders against the people.
RRT Member: yes I understand that they were unjust and possibly illegal. So as a consequence you said that you had further problem with you there was ongoing harassment.
Applicant (through interpreter): they were generally excluding me, and they were saying there are traitors among us, traitor second lieutenants in particular and they were always leaving me alone.
…
RRT Member: … When you say they excluded you and they harassed you, they mistreated you generally because of your rebelliousness. I want to understand exactly what that means, what they did.
Applicant (through interpreter): I was defending that these people have the rights to live here and they are innocent people they don’t have to be treated this way. We don’t have the right to harass these people and confiscate their last remaining pieces of food.
RRT Member: I understand what you did. I want to understand is what they did. Because I don’t actually understand what you mean when you say they excluded you they harassed you. I want to know what in day‑to‑day terms that meant given you had completely refused to follow orders.
Applicant (through interpreter): for example they would push me around before the soldiers, something very downgrading, and they would say traitor, this stupid second lieutenant. They would address me as the “traitor second lieutenant”. For example, in the cases like when we go to gatherings that belongs to the ranked people, the high ranking officers like group commander would say “fellows you got to be careful, there may be or there are traitors among us”, and this was directed to me.
RRT Member: the Turkish military has a reputation of being extremely tough. I don’t understand how you could have completely defied your senior officers so many times and not in fact been taken before a military court and court marshalled, or punished in some much more severe way as I am aware that people are in the military, or even have lost your rank. It just seems to me hard to understand why they would continue to threaten you, abuse you and belittle you in front of your soldiers, but not actually take more direct military actions against you given what you have done.
Applicant (through interpreter): they couldn’t have because I as a ranked person had the right to say what I saw and what I witnessed, and of course this event would have magnified what would be bigger.
RRT Member: you mean about this event? (yes) Could you explain what you mean a bit more, how would it become worse if they had actually taken military disciplinary reaction against you, which is the normal course as I understand the way the military usually operates.
Applicant (through interpreter): as I mentioned, if I go to the court I will explain and I will tell what happened, the events that I witnessed, and this will not stay in the military court, because an injustice is going to be carried out towards me, I will speak to the press as well.
The second strand in counsel’s argument was that the Tribunal’s references to a “harsh regime” in the Turkish army showed an “inappropriate” use of relevant country information. However, that information, extracted by the Tribunal earlier in its reasons, provided an opinion that “the armed forces operate a harsh regime”. I can find no improper use of this country information by the Tribunal, and no evidence of bias in its reasoning which made use of it.
Particular e.: the Tribunal’s finding that, on the basis that atrocities by the military are well documented, the applicant’s claim that he intended to expose the atrocity which he witnessed was inherently unconvincing.
This finding appears in the following paragraph of the Tribunal’s reasons:
As put to the applicant at hearing, I find that atrocities by the Turkish military such as the one witnessed by the applicant in late 1999 are well documented in the independent evidence. That evidence indicates that attacks by the military on villagers in the southeast who were suspected (or said to be suspected) of supporting the PKK were common throughout the period of the conflict between the Turkish government and the PKK. The applicant claimed that such incidents were not commonly documented by late 1999, but on the basis of the independent evidence from DFAT referred to at pages 17‑18 above I find that immediately following the arrest of Ocalan in April 1999 Kurds who were seen as sympathetic remained at risk. I therefore find it credible that military actions against them are likely to have occurred, and to have been known to have occurred, until the security situation in the southeast improved in 2000. I therefore find the applicant’s claim that he intended to expose the military through these photographs to be inherently unconvincing, and I do not accept that the fact he was an officer who personally witnessed such atrocities would have rendered him any great threat to the military. Such incidents by the military were not only common at that time, but were part of the military’s propaganda in war against the PKK terrorists. I do not accept that the military officials would have been in any way concerned at exposure by the applicant (emphasis added).
Counsel for the applicant argued that the emphasised finding showed partiality against the applicant. However, it was arrived at by a process of reasoning which, in my opinion, should not be characterised as unreasonable or irrational. I consider that it was open to the Tribunal to assess the applicant’s claims about his photography against information which suggested that military officials would be unconcerned about “exposure” of army counter‑insurgency activities. I am not persuaded that this reasoning, either in itself or in combination with the Tribunal’s other reasoning, shows that it reached its decision without bringing an impartial mind to this task.
Particular f.: the Tribunal’s finding that the applicant’s account concerning his detention and questioning after his discharge from the army was unclear, inconsistent and unconvincing.
The Tribunal made this conclusion at the start of the paragraph which followed the above passage, and then explained it:
I also find the applicant’s evidence regarding the claimed questioning by the police after his discharge from the army to be unclear, inconsistent, and unconvincing. He initially indicated that he was questioned indirectly about whether he took photographs of the incident (on the basis of military’s suspicions), that he denied having taken photographs, and that he did not disclose the photographs as a counter‑threat because he feared he might be ‘disappeared’. However he later claimed that during questioning in November 2001 the questioning was overt, that the police clearly believed he had taken photographs, and that they demanded he hand them over. He denied having taken such photographs, but claims that he then knew this harassment would only continue if he remained in Turkey.
I find this claim to be exaggerated and unconvincing. If, as the applicant claims, the authorities in effect knew (or very strongly suspected) about the photographs by that stage and as a result had a serious adverse interest in him, then I do not accept that they would have taken no other action against him at that time. They did not search his home. They did not arrest him or hold him in detention. In fact they took no other action against him during the following few months before he left Turkey. I find that such inaction is simply not consistent with a serious adverse interest in the applicant by the Turkish authorities (emphasis added).
I do not accept counsel’s submission that the Tribunal’s “portrayal” of the applicant’s evidence showed “partiality of mind”. Rather, in my opinion, the Tribunal’s reasoning shows a proper performance of its duty to consider and reach conclusions on the extent to which it would accept the applicant’s claims. I consider that the Tribunal’s findings were reasonably open to it on the evidence given by the applicant about this, to which I was taken by counsel (see transcript pp.15‑17).
Counsel for the applicant argued that the applicant’s evidence did not contain “inconsistency”, in the sense that the applicant did not contradict himself. However, I understand the Tribunal to be saying only that the applicant’s account of the different questioning on the two visits was inherently unlikely, and in that sense “inconsistent”. I consider that this factual conclusion was reasonably open to the Tribunal and does not provide evidence of bias.
Particular g.: the Tribunal’s finding that it was not satisfied that paying a bribe to an official indicates the applicant would not have been permitted to depart Turkey by other means.
Particular h.: the Tribunal’s non acceptance of the fact that the applicant would have been able to depart Turkey in February 2002 with relatively little difficulty if the police had a serious adverse interest in him because of an offence in December 2001.
Particular i.: the Tribunal’s findings in relation to documents 2 and 3 provided by the applicant.
These particulars focused on the Tribunal’s reasoning concerning the copy of a purported arrest warrant which was submitted to the Tribunal. In effect, the Tribunal did not accept that the applicant had participated in a demonstration in Xtown in December 2001, and, by implication, that this document established both his participation and that he was threatened with persecution as a result. It said:
Against the background of this claimed interest by the police I do not accept the applicant’s belated claim at hearing that he participated in a demonstration in Xtown in late December 2001. The applicant made no such claim in his written statements to the Department or this Tribunal, and only made this claim in the context of explaining one of the documents he submitted to the Tribunal (see evidence at page 13 above). I do not accept that the applicant, who had not demonstrated publicly since May 1998, would suddenly demonstrate in Xtown despite questioning by the police in November 2001 and despite his claimed intense fear for his own safety.
More specifically in relation to the documents submitted to the Tribunal, I note that the document said to evidence the applicant’s participation in the Xtown demonstration (Document 2 at page 8 above) is not an original document but a poor copy. The seal and the words on the seal are illegible, and a small section of the document has been blacked over (next to the word ‘Xtown’). It is dated October 2002 but relates to a demonstration on 24 December 2002 [sic:2001], and indicates that the applicant was sentenced to six months imprisonment by the Xtown Lower Court. It is partly on the basis of this document that the applicant submits that the authorities’ interest in him has increased since his departure. However I do not accept that is the case. Even if the court proceedings were not held or finalised until October 2002 as the document suggest, then I do not accept that the applicant would have been able to depart Turkey in February 2002 with relatively little difficulty if the police had a serious adverse interest in him because of an offence in December 2001. While the applicant has claimed that he paid a bribe in order to depart Turkey, on the basis of independent evidence referred to in submissions on his behalf (see CX44847 being advice from DFAT of 25 September 2000, as referred to at page 7 of the submissions to the Department dated 19 June 2002) I find that bribery is a common practice in Turkey, and I am not satisfied that paying a bribe to an official indicates that the applicant would not have been permitted to depart Turkey otherwise. I am of the view that, if the applicant faced a penalty as serious as six months imprisonment for an offence committed in December 2001, the Turkish authorities would not have allowed him to depart Turkey (emphasis added).
Counsel for the applicant submitted that the emphasised reasoning showed a partial mind being brought to the decision‑making because it relied upon illogical reasoning in relation to bribery in Turkey. The illogicality was found in the Tribunal’s refusal to accept that the applicant would have been allowed to depart Turkey even by bribery, in circumstances where it also found that “bribery is a common practice in Turkey”.
However, in my opinion, the submission misread the Tribunal’s reasoning. Neither counsel was able to show me in the material any direct or detailed evidence put forward by the applicant as to how he left Turkey. The only suggestion to which I was taken that it may have involved a bribe is found on page 7 in a solicitor’s submission which said:
Leaving Turkey
As quoted by Mr Chami in his decision of 19 March 2002, DIMIA country information supports our client’s claims of having obtained a passport to leave Turkey by bribery:
According to our contacts it is quite possible to obtain a passport, have it renewed and receive assistance to pass through airport checks provided all necessary persons are adequately bribed. This trade was institutionalized in Istanbul. CISNET at CX44847.
I note that the reference to the decision of “Mr Chami” is to a decision concerning another applicant which refers to DFAT information. I also comment that the solicitor’s claim that bribes were paid to obtain the applicant’s passport says nothing as to how the applicant passed security checks when using the passport to depart Turkey.
Given the vagueness of this evidence, it was, in my opinion, open to the Tribunal not to be satisfied that it explained how the applicant could leave the country notwithstanding an outstanding serious criminal charge or sentence. I consider that the findings made by the Tribunal in this paragraph were reasonably open to it and do not show irrationality nor suggest that a partial mind was brought to the making of the decision.
I consider that, read in context, there is no illogicality in the Tribunal’s reasoning about bribery. The Tribunal assumes that, somewhere in the obtaining of a passport and dealing with Turkish officials in the course of departure, the applicant might have paid a bribe, and suggests that this would be “common practice” for someone without outstanding criminal charge. In effect, it refuses to accept that a common practice of paying a bribe to an official would account for the applicant leaving the country in the circumstances claimed. I consider that this reasoning was within the permissible field of fact‑finding by a Tribunal, and I do not find evidence in it of bias.
Particular j.: the Tribunal’s findings in relation to documents 4, 5 and 6 provided by the applicant.
The Tribunal addressed the effect of these documents, and concluded that it was not satisfied that they “provide documentary evidence that the Turkish authorities had an adverse interest in the applicant because of a Convention reason prior to his departure from Turkey, or that such an interest in him has increased since his departure from Turkey”.
It is not necessary for me to analyse the contents of these documents nor the Tribunal’s reasoning leading to its conclusion. They plainly had considerable ambiguity as to their origins, authenticity and effect. These problems were explored with the applicant at the hearing. The Tribunal rejected the applicant’s claim to be wanted by authorities as a result of participating in an Xtown demonstration in December 2001, in its reasons which I have extracted above. I consider that there was nothing unreasonable, irrational or improper in the Tribunal failing to be satisfied that these additional documents should cause it to conclude otherwise. The transcript showed that both the applicant and his solicitor had difficulty explaining how the documents related to each other and what they proved. I do not consider that the Tribunal’s treatment of them would suggest bias to a fair‑minded reader of its reasons who was “properly informed” as required under the Ex parte H test (see above).
Particular k.: the Tribunal’s finding that in relation to the substance of the applicant’s Convention‑related claims, the psychological report relies solely on what the applicant has told the psychologist and in this regard not taking into account the psychologist’s opinion.
The Tribunal said concerning this report:
As noted above I accept that during his military service the applicant witnessed atrocities committed by the Turkish military, and in particular the incident in late 1999. I therefore accept the report from the Psychologist from S.T.A.R.T.T.S. provided to the Tribunal after the hearing as evidence of the applicant’s emotional and psychological state as a result of witnessing such incidents. However in relation to the substance of the applicant’s Convention–related claims I find that that report relies solely on what the applicant has told the Psychologist, and therefore does not add significantly to the applicant’s own evidence in written and oral form (emphasis added).
Counsel for the applicant did not suggest that, when reciting the applicant’s history upon which he formed his expert opinions, the psychologist drew upon sources other than the applicant’s own account. He did not claim that it was untrue, in that sense, that “the report relies solely on what the applicant has told the Psychologist”.
This is all that I understand the Tribunal to be saying. I reject the submission that the Tribunal failed to give this report weight in any manner which reveals a partial mind. I consider that the Tribunal has addressed it in a manner which was unexceptionable and normal. Indeed, in my view the Tribunal may have dealt kindly with the report, since it did not draw an adverse inference from the picture given by the applicant to the psychologist of being “involved in Alevi activism over a long period”, which might have seemed somewhat inconsistent with the history given to the Tribunal.
Particular l.: the Tribunal’s failure to consider whether the consequences which the applicant may face on return to Turkey by virtue of his conviction in absentia for six months, and the warrant for his arrest, constitute persecution within the meaning of the Convention.
The applicant’s counsel submitted that the Tribunal’s reasons for not accepting the warrant showed a process of reasoning which was irrational and illogically based. In effect, his submissions under this particular added nothing to his submissions which I have addressed in relation to particulars “g.”, “h.” and “i.” For the reasons I have given above, I do not accept those submissions.
Particular m.: the Tribunal’s interview of the witness Mr A including the failure to enquire of Mr A as to what he had heard from his relatives as to the detention of the applicant after discharge from the military.
The Tribunal summarised the evidence given by this witness in a manner which counsel for the applicant did not criticise:
A Witness gave evidence to the Tribunal on behalf of the applicant. He claimed that he faced similar problems in Turkey, which he left in 1994. He obtained refugee status in Australia in 1996, is now a citizen, and has never returned to Turkey. He knew the applicant in Turkey, and his knowledge of the applicant’s problems is based on telephone conversations while the applicant was still in Turkey and his subsequent conversations with the applicant after he came here. He understands that the applicant suffered discrimination in Turkey because of being an Alevi Kurd, and that he was detained by the authorities on several occasions. He had no knowledge of the applicant’s actual political involvement, but believes he faced problems in Turkey essentially because he was Kurdish. The applicant’s mother and other relatives told the Witness that the applicant had been taken into custody because of problems during his military service.
Counsel for the applicant referred me to the transcript where, after giving this evidence, the witness said: “my knowledge is from conversations I have with my auntie, his mother, other relatives; my parents, that he was taken into custody … during military you cannot actually talk to him. But it was after the military service, after his discharge that my auntie said that he has been detained”. Counsel submitted that the Tribunal should have then asked the witness questions to explain further what he had been told by his auntie, and that its failure to do so gave rise to an apprehension of bias.
I do not accept this submission. It attempts to raise, in the guise of a bias argument, a duty to inquire which abundant authority has rejected when presented more directly (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] and cases cited therein). The applicant and his solicitor were apparently present when this witness gave evidence, and they had ample opportunity during and after the hearing to ask the Tribunal to receive further evidence from this witness. I can find nothing in the Tribunal’s questioning of this witness which gives rise to a reasonable apprehension of bias.
Conclusions on Ground 1
For the above reasons, I do not accept any of the criticisms made of the Tribunal’s findings and reasons which were argued to give rise to an apprehension of bias under the test in Ex parte H (supra). I therefore reject this ground of review. I should make it clear that, as well as considering each particular separately in terms of the apprehended bias test, I have also considered the cumulative and over‑all effects of the submissions made by counsel. As I have indicated above, I found nothing in the Tribunal’s proceedings or reasons which caused me (or would cause a fair‑minded and informed lay person) to have concern that the Tribunal did not bring an impartial mind to the task of reviewing the delegate’s decision.
Ground 2: The Decision is void for jurisdictional error in that the Tribunal did not carry out the review required of it by the Migration Act 1958 in that the Tribunal:
Particular a.: did not have an appropriate factual basis, and
Particular b.: failed to apply a reasonable margin of appreciation to the applicant, in making the following critical findings:
i. that the applicant’s claim that he refused to follow the orders of senior officers in certain situations involving the Kurds was greatly exaggerated and implausible;
ii. that it was implausible that the Turkish military would not respond in a much stronger way in the face of the applicant’s failure to obey orders;
iii. that the applicant’s claim that he intended to expose the military through the photographs taken of the atrocity was inherently unconvincing;
iv. that the applicant’s evidence regarding the claimed questioning by the police after his discharge from the army was unclear, inconsistent and unconvincing.
Counsel in his oral submissions withdrew reliance on particular “a.”.
In relation to particular “b.”, he submitted that a jurisdictional requirement that a Tribunal should “apply a reasonable margin of appreciation” had been decided by Lee J in Thevendram v Minister for Immigration & Multicultural Affairs (2000) 182 ALR 290 at [25-26] and [42-44].
I have difficulty understanding such a test, and doubt whether Lee J intended in his judgment to establish it as a proposition of law. On current authorities, his Honour’s reasoning might be considered to address the species of “unreasonable and irrational” error which was subsequently referred to in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 per Gleeson CJ at [9], McHugh & Gummow JJ at [36-7], Kirby J at [81], [128] and [137]; and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], and has rarely been made out.
In any event, I do not need in this case to explore these authorities further, since counsel for the applicant accepted that the particulars of error which he relied upon were also within the particulars of apprehended bias which I have dealt with above. For the reasons given above, I do not accept that the Tribunal made any error of law or jurisdiction when making these findings. I consider that they were well within the permissible field of fact-finding by the Tribunal on the material which was before it.
Since I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error argued before me, I must dismiss the application. The parties have agreed upon an appropriate costs order in these circumstances.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 31 May 2005
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