SZENV v Minister for Immigration - [2005] FMCA 1502

+FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENV v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1502

MIGRATION – Review of decision of Refugee Review Tribunal – refusal to grant protection visa – Applicant claims persecution on ground of Kurdish ethnicity and Alevi religion and support of Peoples Democracy Party (HADEP).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R; 91R(1); 474

NAOO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 26
SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478

Applicant:

SZENV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3045 of 2004

Judgment of:

Emmett FM

Hearing date:

12 October 2005

Date of Last Submission:

12 October 2005

Delivered at:

Sydney

Delivered on:

12 October 2005

REPRESENTATION

The Applicant appearing for himself

Counsel for the First Respondent:

Mr. G. Johnson

Solicitors for the First Respondent

Ms. A. Alex, Phillips Fox

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 be dismissed.
That the Applicant pay the Respondent’s costs in an amount of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3045 of 2004

SZENV

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) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 7 October 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) made on 22 December 2003 not to grant a protection visa to the Applicant.
The Applicant arrived in Australia on 16 October 2003 pursuant to a student visa and claims to be a citizen of Turkey.
On 17 November 2003 the Applicant lodged an application for protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). On 23 December 2003 the delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 5 January 2004 the Applicant applied for review of the delegate’s decision.
On 22 January 2004 the Tribunal wrote to the Applicant informing him that it had considered the material before it in relation to his application but was unable to make a decision in the Applicant’s favour on that information alone. The letter went on to invite the Applicant to attend a hearing on 11 February 2004.
On 28 January 2004, the Tribunal wrote to the Applicant inviting him to attend a hearing on 11 March 2004 as the Tribunal was unable to proceed with its original hearing on 11 February 2004.
On 12 August 2004, the Tribunal wrote to the Applicant informing him that the Tribunal member who was reviewing his case had ceased to be a member of the Tribunal on 30 June 2004 and his review was proceeding before another Tribunal member, Member Rosser. The letter went on to inform the Applicant that Member Rosser had read the material on file and listened to the tape recording of the earlier hearing on 11 March 2004. The letter stated that Member Rosser was of the view that she had sufficient evidence before her to finalise a decision in relation to the application without conducting a further hearing. However, Member Rosser wished to provide an opportunity to the Applicant to provide any further submissions to the Tribunal. In addition the letter informed the Applicant that Member Rosser had noted that the independent country information before the Tribunal indicated that there have been some improvements in the human rights situation in Turkey in general and the treatment of Kurds in particular. The independent country information before the Tribunal did not suggest that people in Turkey faced persecution merely because they are Kurds. The independent country information also indicated that Alevis in Turkey are allowed to practice their religion and do not face persecution. The letter to the Applicant concluded:
“This information could be the reason or part of the reason for rejecting your application. It is relevant because it suggests that the chance that you will face persecution in Turkey because you are Kurdish or because you are Alevi is remote.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 6 September 2004.
If you do not give comments or make submissions by 6 September 2004 the Tribunal may make a decision on the review of your case without further notice.”
On 29 August 2004 the Applicant provided a written submission for the Tribunal’s consideration which purported to include information from the Australian Kurdish Association, the Human Rights Association and extracts from various sources on the situation generally in Turkey. The Applicant’s submission concluded as follows:
“In every part of Turkey, where hundreds of similar problems are experienced, there is a will not to resolve the Kurdish issue. The policies of annihilation and destruction constitute a potential risk and danger for every Kurd in the street. In our region, due to the fact that we are of Kurdish and Alevi background, we have been experiencing difficulties created by the police and the local people. Because it is well known that the Sayan family in Kurdish, that they vote for HADEP and they are Alevis, many member of the Sayan family have been taken into custody and tortured. Most of these people have gone to Europe and Australia seeking asylum and all their requests for asylum have been approved.
It is clear that I would face serious danger if I am sent back to Turkey. From the point of view of my security, I respectfully and emphatically request that my application be asylum here be accepted.”
The Applicant relied on the following claims and assertions at the hearing before the Tribunal:
a)That he is a 21 year old Turkish national of Kurdish ethnicity and an Alevi. He travelled to Australia legally, using a passport issued on 1 September 2003, on a students visa issued in Istanbul on 9 October 2003.
b)That he lived at the same address in Turkey from January 1983 until October 2003.
c)That he suffered discrimination and mistreatment at school.
d)That Kurds, Alevis and those holding left wing views are constantly denigrated, belittled, put down and ruled through oppression, coercion and torture.
e)That in 2001 when he started university there was a high level of political activity on campus and left wing and right wing groups would fight with each other.
f)That he received threats from right wing groups because he held left wing views, was an Alevi and from Bingol.
g)That he was beaten up by right wing groups and his education was interrupted many times. He and his friends were frequently taken into custody and beaten up for no reason and tortured. He was a target because he was a Kurd from Bingol and was a HADEP supporter.
h)That his family in Derince were subjected to harassment by the police.
i)That the police started following him after he finished his education regarding him as a potential criminal. He obtained his passport by paying a bribe.
j)That he was insulted by teachers at school and the teachers payed less attention to him. The Tribunal noted that, nevertheless, the Applicant managed to finish school and go to university.
k)That he was identified as an Alevi because he participated in community activities, for example, singing songs, although he did not belong to an Alevi organisation. However, he used to distribute information about Alevi activities. The Applicant stated that Alevis do not go to the mosque and do not complete obligatory prayers. The Applicant disagreed with the Tribunal that, while Kurdish people used to have problems celebrating Nevruz celebrations, this is no longer the case.
l)That he was taken to the police station, verbally abused and beaten up in 1998 when he celebrated Nevruz. He was released the following day.
m)That he was detained in 1997, questioned and released on the same day. At this time the Applicant stated that he told police that he was a PKK supporter, but not a terrorist. When the Tribunal put to him that it would have been a matter of serious concern to the police if he had told them he was a PKK supporter, the Applicant stated, in his oral evidence, that he had not told the police that he was PKK supporter.
n)That, in relation to the incident in 2002, the Applicant stated he was accused of being a terrorist and a separatist, which he denied, and was released the following day.
o)In response to a question from the Tribunal about the Kurdish activities in which he was involved following his release, the Applicant stated that he was not involved in any other activities although he kept reading Kurdish political magazines and talking to his friends. He also attended Nevruz celebrations in 2003.
p)That, although he had supported HADEP, he was not a member of the party.
q)The Tribunal noted that the Applicant indicated that being Kurdish was enough to be perceived as left wing and that he was involved in fights, although he did not get into trouble with university authorities because the fights happened in the dormitories. The Applicant claimed that he did not attend classes for a week after being beaten up on one occasion and when he tried to rent a flat and leave the dormitory the right wing group followed him. He stated that he had verbal arguments with the group but was not physically harmed after he moved.
r)That, at the beginning of 2003 the police came and searched his flat and he and his flatmates were questioned by police and released. The Applicant stated he did not have any further problems after this incident.
s)That he fears that the police will approach him again if he were to return to Turkey and that he could be made to disappear.
t)That Kurdish people in Turkey do not voice their opinions in fear as, otherwise, all Kurds in Turkey are persecuted.
u)That he did not get sufficient marks in order to enter university, although he completed his tertiary studies at a technical school.
v)In response to a question by the Tribunal whether he could have moved away from Istanbul in order to avoid being associated with his family surname, which is well known for being Kurdish, Alevi and left wing, the Applicant stated that his family had an established life and indicated that he did not want to move. The Applicant stated that the police would be interested in him wherever he moved. The Applicant stated that his brother has had no dealings with the police, nor was his father politically active. The Applicant indicated that activity was required in addition to association with his well known family name.
The Tribunal made the following findings and observations:
a)It accepted that being Kurdish, Alevi and perceived to be left wing could give rise to a well founded fear of persecution for a Convention reason in Turkey. However, the Tribunal noted that the independent country information, which it accepted, does not suggest that this is always the case.
b)It was not satisfied that the Applicant has a well founded fear of persecution for a Convention reason arising from his membership of his family. The Tribunal noted that neither the Applicant’s father nor brother had problems with Turkish authorities.
c)The Tribunal accepted that the Applicant completed secondary and tertiary education and when he was at school he was insulted by teachers and thought they looked down on him because of his ethnicity.
d)The Tribunal noted that the Applicant lived outside the south-east of Turkey for almost his whole life.
e)The Tribunal did not accept that the discrimination to which the Applicant was subjected at school was serious enough to amount to persecution within s.91R(1) of the Act.
f)The Tribunal accepted that the Applicant had several encounters with the Turkish authorities over a number of years and was briefly detained on 2 occasions whilst in high school. The Tribunal found that the fact that the Applicant was briefly detained on those 2 occasions whilst in high school suggested that he did not have any particular profile with the Turkish security forces.
g)The Tribunal accepted that the Applicant was briefly detained when celebrating Nevruz in 2002 and when his accommodation was searched in early 2003. The Tribunal noted that the Applicant indicated that he had no further problems with the authorities after the 2003 incident. The Tribunal found that the small number of encounters over some 6 years did not suggest that the Applicant had a profile of a person of any ongoing adverse interest for reason of his ethnicity, religion or his political opinion. The Tribunal observed that those facts suggested that the Applicant was a person who was briefly investigated and was able to satisfy the authorities that he was not of any ongoing adverse interest.
h)The Tribunal accepted that the Applicant was involved in conflict with right wing student groups whilst in university including physical clashes. The Tribunal accepted that the Applicant was physically injured during these clashes on more than one occasion and missed classes because of these injuries. However, the Tribunal was not satisfied that any harm suffered by the Applicant as a result of the clashes amounted to such serious harm and systematic and discriminatory conduct so as to amount to persecution within the meaning of s.91R of the Act. Rather, the Tribunal found that the clashes were between mutually antagonistic groups rather than persecution of one group by another. The Tribunal also regarded it as significant that the Applicant remained a student at the same institution until his graduation.
i)The Tribunal found that because he was no longer in physical clashes with right wing groups, due to having completed his university studies, the chance that the Applicant would again become involved in such clashes if he were to return to Turkey is remote.
j)The Tribunal found that the degree of adverse interest in the Applicant has been minor and not ongoing.
k)The Tribunal did not accept the Applicant’s claim that he had to pay a bribe to obtain a passport, because it had found that the Applicant was not of ongoing adverse interest to the Turkish authorities at the time he left Turkey and there would be no reason for the Turkish authorities in the circumstances to refuse to issue a passport to the Applicant. The Tribunal found that the Applicant exaggerated this claim in order to enhance his claims to refugee status.
l)The Tribunal was not satisfied that the Applicant has been persecuted in the past for reason of his religion. The Tribunal accepted that the Applicant is an Alevi although not a devout one. The Tribunal observed that the independent country information before it did not suggest that Alevis in Turkey face persecution merely for reason of their religion.
m)The Tribunal was not satisfied that the harm the Applicant suffered in the past was serious enough to amount to persecution for a Convention reason, although it did accept that the Applicant had problems at school and university because of the combination of his ethnicity, religion and perceived political opinion.
n)The Tribunal further found that the educational aspirations of the Applicant led it to find that the main reason the Applicant left Turkey was to further his education and improve his prospects. The Tribunal found that the Applicant’s failure to gain admission to the degree of his choice in Turkey was because of the marks required and not because of his race, religion, nationality, membership of a particular social group or political opinion. In any event, the Tribunal found that, given that the Applicant had already graduated and obtained tertiary qualifications, it was not satisfied that excluding him from any tertiary course would constitute harm serious enough to constitute persecution within the meaning of s.91R(1) of the Act.
o)The Tribunal observed that the Applicant largely expressed his Kurdish ethnicity by attending Nevruz celebrations and the most recent independent country information in respect of that celebration in Istanbul in 2004 was that police did not intervene in the proceeding. The Tribunal found that the Applicant would be able to celebrate Nevruz if he were to return to Turkey without there being a real chance he would suffer serious harm.
p)The Tribunal found that, given the Applicant did not become involved in political activities prior to his departure to Turkey, it did not accept that he would do so if he returned to Turkey.
The Tribunal considered each of the claims of the Applicant that he has a well founded fear of persecution for reasons of his Kurdish ethnicity or his political opinion, his membership of his family, and his religion. The Tribunal also considered the Applicant’s claims individually and cumulatively and was not satisfied that the Applicant has a well founded fear of persecution for a Convention reason.
Accordingly, having considered the evidence as a whole, the Tribunal was not satisfied that the Applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The proceedings before this Court

On 11 October 2004 the Applicant filed an Application for judicial review of the Tribunal’s decision on the following grounds:
“1. The RRT misconstrued evidence and consequently acted in bad faith.
2. The tribunal focused on the improvement in the human rights situation in Turkey in recent years. The tribunal misconstrued evidence to reach such a conclusion.
3. [The Applicant] has well founded fear of persecution upon return to Turkey. The tribunal misconstrued the whole evidence to reach such a finding.”
On 25 October 2004 the Applicant was directed to file and serve an amended application giving complete particulars of each ground of review relied upon by 30 January 2005.
On 24 January 2005 the Applicant filed an Affidavit sworn on the same date affirming the following:
“1. I do not wish to go back to my Country because I will always be living in fear each day believing that this will be the day I will be persecuted by the Turkish authorities or a member of some other organisation.
2. As a Kurdish Alevi and a supported of the leftist group I grew up with the fear of one day being captured and persecuted.
3. Even though I am not actively involved in any political activities in Turkey I would automatically be targeted once my family name is known. The Sayan family is well known as Alevi Kurds with left wing views.
4. The only thing that is stopping me actively voicing my views and becoming a member of the HADEP group is simply my fear of the Police and being caught and persecuted.
5. I feel that I would not have much of a life if I return to Turkey because everywhere I go I would have to be discreet and not voice my opinion or mention my name to avoid being insulted and verbally or physically abused. In doing this I am basically being denies the right to express my political opinion.
6. I do not believe that the human rights is improving in Turkey and that the information gathered by Refugee Review Tribunal is incorrect as it does not apply to all areas of Turkey.”

The Applicant has filed no further application, document or submission in respect of his application.
The Applicant’s claim is essentially that he disagrees with the Tribunal’s conclusion and the findings of fact upon which that conclusion was based. Such a claim is plainly one seeking review on the merits of the Applicant’s claim. It is not for this Court to enquire into the merits of the Applicant’s claim before the Tribunal.
The Applicant was unrepresented before this Court this afternoon although he had the assistance of an interpreter. The Applicant made oral submissions to the following effect:
a)That he disagreed with the Tribunal’s finding that things are getting better for Kurds in Turkey. The Applicant submitted that being a Kurd in Turkey continues to be a problem and there are no improvements. The Applicant purported to give anecdotal examples of punishment of Kurdish people in Turkey. However, I note that it is not anecdotal evidence that was before the Tribunal and, therefore, for the purpose of this Application such anecdotes are not relevant;
b)That he is not a member of political parties because he is afraid of police;
c)That the Tribunal was incorrect in failing to accept that he obtained his passport by bribery;
d)That, if he returns, he will required to enlist in military service and use weapons against his people.
In relation to claim (a) above, this relates to findings of fact made by the Tribunal. The Tribunal considered the claims of the Applicant, his written and oral submissions in detail and made findings of fact based on the evidence before it. The Tribunal was entitled to decide the probative value of the independent country information it referred to or relied upon. The Application before this Court does not particularise a complaint with any reference to any particular findings or evidence before the Tribunal. In NAOO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 26 at [14] the Full Court of the Federal Court found that:
“There is no ground for judicial review available because country information was not actually utilised properly.”
And that to contend otherwise:
“is no more than a claim for merits review”
Hely J, in SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16], held that the weight to be given to independent country information, its accuracy and its relevance were all matters for the Tribunal and not the Court. Special leave in respect of the decision of Hely J was refused. Accordingly, the Tribunal findings based on the independent evidence before it were open to it and, accordingly, this Court has no jurisdiction to interefere.
In relation to (b) above, this relates to findings of fact made by the Tribunal. The Tribunal considered the situation for the Applicant if he returned to Turkey. The Tribunal found that the chance that the Applicant would encounter harm serious enough to amount to persecution if he returned to Turkey is remote. There was no claim by the Applicant before the Tribunal that he is not a member of a political party because he is afraid of police, although he claimed that he feared that police would approach him again if he would return to Turkey and “he could be made to disappear”. The Tribunal noted that, while the Applicant stated that he supported HADEP ideologically, he did not claim to have been a member of the party or acted with the party in any way. The Tribunal concluded that “overall the degree of adverse interest in the applicant has been minor and has not been ongoing”. This claim is based on a finding of fact that was open to the Tribunal on the facts before it and is, accordingly, not a finding with which this Court can interfere.
In relation to (c) above, the Tribunal was wrong in refusing to accept that he obtained his passport by bribery, that is a finding that was open to the Tribunal on the facts before it. The Tribunal considered the Applicant’s claim that he had to pay a bribe to obtain a passport, but did not accept the Applicants claim in light of the Tribunal’s finding that “the applicant was of no ongoing adverse interest to the Turkish authorities at the time he left Turkey”. In making that finding, the Tribunal noted that the Applicant had only ever encountered problems during Nevruz celebration on 2 occasions, in 1998 and again in 2002 and although he had several encounters with the Turkish authorities over a number of years, he was detained only briefly on 2 occasions and released. Having found that the Applicant was of no ongoing adverse interest to the Turkish authorities, the Tribunal found there would have been no reason for the Turkish authorities to refuse to issue a passport to the Applicant. The Tribunal stated that, “in my view, in claiming that he had to pay a bribe in order to be able to leave Turkey, the Applicant has exaggerated in order to enhance his claims to refugee status”. That is a finding of fact that was open to the Tribunal on the evidence before it and, accordingly, is not a finding with which this Court can interfere.
In relation to claim (d) above, namely, being required to engage in military service, the Applicant has provided no other evidence in relation to this issue and it was not a matter raised by the Applicant before the Tribunal. Accordingly it is not a matter for review by this Court.
In his Application filed on 11 October 2004, the Applicant claimed that the Tribunal “misconstrued evidence and consequently acted in bad faith.” There is no evidence or particulars of the serious allegation of bad faith on the part of the Tribunal. Such a claim is not otherwise evident from the decision and this claim is rejected.
In the circumstances, the decision of the Tribunal is not effected by jurisdictional error. Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The Application is dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 12 October 2005