SZEAO v Minister for Immigration
[2005] FMCA 1701
•21 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1701 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Turkey on the basis of religion and political opinion or imputed political opinion – applicant claims Refugee Review Tribunal erred in exercise of its jurisdiction by asking wrong question and taking into account irrelevant considerations. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 483A |
| Applicant: | SZEAO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2289 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 October 2005 |
| Date of Last Submission: | 18 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2005 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms V. Hartstein |
| Solicitors for the Respondent: | Ms. N. McLaughlin, Blake Dawson Waldron |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the applications before this Court are dismissed.
That the Applicant pay the costs of the First Respondent in the amount of $7690.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2289 of 2004
| SZEAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant is a Turkish national of Kurdish ethnicity who departed Turkey on 7 August 2001, and entered Australia on 25 February 2002.
On 21 March 2002, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act which was refused on 31 December 2002.
On 14 January 2003, the Applicant lodged an application for review by the Tribunal of the Delegate’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:
“owing to a 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.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Refugees Convention.
The Tribunal proceeding
The Applicant claimed, that because of his Kurdish background, Alevi religion and his political opinion, or imputed political opinion, he had come to the adverse attention of the Turkish authorities.
The Applicant claimed that he assisted the Kurdistan Worker’s Party (“the PKK”) from 1984 to 1991 and was a supporter of the pro-Kurdish People’s Democracy Party (“the HADEP”) and the Kurdish cause generally, including attending several marches. The Applicant claimed that if he were to return to Turkey he faced a real chance of imprisonment and torture because of his race, religion and political opinion or imputed political opinion.
The Tribunal concluded that it was not satisfied that the Applicant’s claim for fear of persecution in Turkey is well founded.
The Tribunal accepted the Applicant’s claims of active support of the PKK between 1984 and 1991, but was not satisfied on all the evidence before it, that the authorities had developed a serious adverse interest in the Applicant. The Tribunal noted that the Applicant claimed only to have been detained once in 1984 and, whilst it accepted that the Applicant was mistreated during this period of detention, he continued to assist the PKK without confronting any further serious problems until 1991. The Tribunal found that, based on that fact, the authorities were either unaware of the Applicant’s activities, or that his level of political involvement was not of serious concern to them.
The Tribunal accepted that the Applicant attended a large protest march in Istanbul in 1995, but that his account of attendance at other protest marches organised by HADEP was “vague and uncertain.” The Tribunal found that the Applicant’s evidence, as to the extent of his participation in political demonstrations, was “very unconvincing”. The Tribunal accepted that, between 1997 and 1999, the Applicant attended some protest marches organised by left wing groups such as HADEP, but that his political activities were of “an essentially low level and occasional nature.”
The Tribunal accepted that an incident occurred in a HADEP building in 1997, but did not accept that following this incident the Turkish authorities had a serious adverse interest in the Applicant.
The Tribunal noted that the Applicant had been living at one or other of 2 addresses since at least 1993. That fact caused the Tribunal to find that the Turkish authorities could have located the Applicant at one of those places if they had an adverse interest in him.
The Tribunal also noted that the Applicant was issued with a passport in April 1998. The Tribunal found that, had the Applicant feared for his safety he would have applied for a visitor’s visa to Australia, once he held a valid Turkish passport in his own name The Applicant claimed that he sought to escape Turkey by becoming a seaman. The Tribunal found the Applicant responses to its questions in relation to this conduct to be “vague and unconvincing.”
The Tribunal found that, by choosing to leave Turkey as a seaman, on a cargo boat, the Applicant put himself at risk of having to re-enter Turkey and placing himself in a situation over which he had no control.
Indeed the Tribunal found that, in fact, the Applicant had returned by boat to Turkey on several occasions prior to arriving in Australia in 2002. That conduct caused the Tribunal to find that the Applicant was not fleeing Turkish authorities in fear of his life.
The Tribunal further noted that the Applicant had no problems with the authorities when he returned to Turkey. The Tribunal found that fact was inconsistent with the Applicant’s central claim that he was of continuing interest to the authorities throughout this period.
The Tribunal expressed serious doubts about the truthfulness of the Applicant’s evidence regarding his claims of detention in and around 1999/2000. The Tribunal noted that, since 1993, the Applicant went to stay either at his sister’s home in Istanbul or with his family in Derince. The Tribunal found the Applicant’s explanation unconvincing as to how he avoided being located by police given that he was at one of those 2 addresses for long periods. The Tribunal did not believe that the authorities could not have located him if they had wished.
The Tribunal accepted that it was possible that the Applicant was harassed on re-entering Turkey, at the end of 2000, and threatened by several police officers demanding money from him. However, the Tribunal noted that such events, sadly, are common in Turkey, and it was not satisfied that such incident provided evidence of serious adverse interest in the Applicant. The Tribunal also noted that the Applicant had no further problems until he left Turkey in August 2001.
The Tribunal stated that it had considered the Applicant’s claim that he also fears persecution in Turkey because of his membership of a particular social group, being his family. However, for the reasons referred to in its decision and referred to above, the Tribunal was not satisfied that the Applicant’s claims of fear of being persecuted upon return to Turkey were well founded.
The Tribunal also noted that the independent country information led it to find that Turkey has attempted to improve its human rights situation in recent years and is now more accepting of different political views, including those of the Kurds. The Tribunal found that the significant political changes in Turkey strengthened its conclusion that the Applicant would not face a real chance of being persecuted in Turkey because of the Applicant’s past political affiliations and activities.
Accordingly, the Tribunal was not satisfied that the Applicant has a well founded fear of persecution for a Convention reason if he were to return to Turkey.
The proceedings in this Court
On 7 January 2005, the Applicant filed an Amended Application in this Court and confirmed at this hearing that he relied on the grounds asserted therein. The grounds are dealt with below.
Ground 1
Ground 1 of the Amended Application is in the following terms:
“The Tribunal erred in the exercise of its jurisdiction amounting to jurisdictional error in that the Tribunal member asked herself the wrong question and/or took into account an irrelevant consideration in that the central question for the Tribunal member was whether the behaviour of the applicant was that of a person who had a well founded fear of persecution if were he to return to his country of origin.”
The Applicant made no submissions in respect of this ground, despite it being read to him on more than one occasion and being invited to say anything that he may wish to say in support of that ground. No particulars were provided in respect of this ground. The First Respondent submitted that because the ground was not particularised, she had assumed that the reference was to the Applicant’s conduct in not seeking a visitor’s visa to Australia and returning to Turkey; or, to the Tribunal’s findings that the Applicant’s evidence was “vague and unconvincing”.
In relation to not seeking a visitor’s visa to Australia and returning to Turkey, the Tribunal referred specifically to the fact that the Applicant was living at one or other of 2 addresses for some significant period of time and could therefore have been located easily by the authorities, in the event he was of adverse interest to them. The Tribunal considered the conduct of the Applicant in seeking to escape Turkey, by becoming a seaman, following being issued with a passport, and thereby subjecting himself to the prospect of being forced to return to Turkey. That conduct caused it to find that the Applicant was not in fear of his life from Turkish authorities. Those were findings available to the Tribunal on the evidence before it and were findings with which this Court cannot interfere.
In relation to the credit findings by the Tribunal in respect of the Applicant’s evidence, being “vague and unconvincing”, again the Tribunal identified, as referred to above, those aspects of the Applicant’s evidence that it found unsatisfactory and that caused it to find the Applicant’s evidence vague and unconvincing, thereby reflecting adversely on his credit. Those credit findings were open to the Tribunal on the evidence before it. It is the Tribunal’s obligation to consider the evidence before it, make findings of fact, and determine whether or not, in the light of the Applicant’s claim, it is satisfied that the criteria required in ss.36(2) and 65(1) are met.
If these were the particulars upon which the Applicant intended to rely, they are insufficient to support the ground claimed. Without any further particularisation by the Applicant as to this ground, the ground is rejected.
Ground 2
Ground 2 of the Applicant’s Amended Application is in the following terms:
“The Tribunal erred in the exercise of its jurisdiction amounting to jurisdictional error in that the Tribunal assessed the claim as against the interest that Turkish authorities may have in the applicant. The claim was that the well founded fear of the applicant was of or in relation to particular elements in the Police force, combined with the failure of the Turkish Government to protect the applicant.”
This ground appears to be suggesting that the Tribunal did not consider the Applicant’s claims of harassment by police as well as the Government.
The Applicant submitted that the police and army are all the same in Turkey and that there is no security for him over there. He stated that he fears for his life and anything could happen to him at any time. He stated that, if an 8 year old child can be shot, then what can one expect. He did not elaborate on this submission. He submitted that in re-entering Turkey a few times he did so by bribing officers. He said that he was in Turkey for 8 months but was not caught, and observed, that Istanbul has 9 million people and that it is therefore a very big coincidence to be able to catch a person. He complained that the Tribunal did not believe these assertions.
The First Respondent submitted that this ground may be misconceived by the Applicant, in that the Tribunal generally referred to the authorities as including the police, army and organs of government. The Tribunal also used the term security forces. Again, no particulars are provided in respect of this ground by the Applicant. It would appear that the Applicant is suggesting that the Tribunal assessed his claim only in terms of persecution by Turkish authorities, and did not have regard to his claims in relation to the police force, or the police force combined with the Turkish government, and their failing to protect the Applicant.
It is clear from the Tribunal’s decision that the Tribunal did not confine its considerations to the actions or conduct of the “authorities” as involving only the State or government, or only the army, or only the police. It is plain that, in using the word “authorities”, the Tribunal was giving the Applicant the benefit of the broadest construction of the use of the word ”authorities” as covering all State controlled bodies with which the Applicant claimed to have interacted.
In relation to the Applicant’s claim involving demands for money from the police in early 2001, the Tribunal was not satisfied that the incident was evidence of serious adverse interest in the Applicant. The Tribunal noted that such demands for money were common in Turkey, and the fact that he had no further problems, until he left Turkey in 2001, led the Tribunal to conclude that the Applicant was of no serious adverse interest to the police or the authorities generally. These are factual findings that were open to the Tribunal on the material before it and with which this Court cannot interfere.
Accordingly, this ground is rejected.
Conclusion
Findings of fact made by the Tribunal, including its findings in relation to the credit of the Applicant, were open to it on the material before it. Accordingly, there is no jurisdictional error in the decision of the Tribunal. The decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications before this Court are dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 10 November 2005
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