SZGES v Minister for Immigration
[2006] FMCA 1868
•6 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGES v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1868 |
| MIGRATION – Refusal to grant a protection visa – no reviewable error. |
| Migration Act 1958, s.474 |
| Applicant: | SZGES |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1121 of 2005 |
| Judgment of: | Turner FM |
| Hearing date: | 6 December 2006 |
| Date of last submission: | 6 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms. Therese Quinn of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1121 of 2005
| SZGES |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 2 May 2005 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant filed an amended application on 2 August 2005, and a further amended application on 28 October 2005.
The applicant was born on 12 February 1960 and claims to be from Turkey and of Kurdish ethnicity, and Alevi faith. The applicant is married and has three children. The family remains living in Turkey.
The applicant arrived in Australia on 25 December 2003. In his protection visa application, the applicant claims he paid bribes to obtain his Turkish passport. The application does not disclose particular details of any visa upon which he entered Australia, although he also claimed in the applicant to have entered Australia on a travel and work permit visa (Court Book “CB” p.26).
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 5 February 2004. In this application he claimed that he had been persecuted in Turkey because he was a Kurd. In his statutory declaration filed with his application the applicant set out a number of instances in which he and a friend were allegedly tortured or questioned by police who suspected that they were involved with Kurdish political parties. The applicant also stated that whilst he was being detained by police his home was destroyed and important possessions such as his passport were taken. His friend later disappeared. Ultimately, the applicant contended, he was forced to close his coffee shops and to change his name and bribe Turkish police in order to acquire a new passport and free the country for his protection (CB p.p.30-34).
This application for a protection visa was refused by a delegate for the first respondent on 25 November 2004. On 17 December 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 8 February 2005 in which he maintained the claims made in his original protection visa application. On 5 April 2005 the Tribunal handed down its decision dated 14 March 2005 affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa.
In considering the applicant’s claims the Tribunal was satisfied that the applicant was ethnically half Kurdish, part Arab, and of Alevi religion. Although the applicant stated in his written claims to the Tribunal that he feared being killed in Turkey because of his religion and race, he made it clear at the hearing before the Tribunal that he had not been brought up with a Kurdish identity and had grown up in an Arab community. As such he faced no serious harm simply as a result of his religion or race, and the chance of this occurring in the future was remote (CB 173).
Although the applicant submitted no evidence to support his claim that he was detained and tortured by police, having regard to independent evidence about the political situation in Turkey at the time and also to the fact that such detention and torture did occur, the Tribunal was willing to give the applicant the benefit of the doubt and accept his account of this. In turn, the Tribunal accepted that during that period the police suspected the applicant of separatist or leftist political activity. Again, however, the Tribunal stated that it was not the applicant’s race or religion which was a significant reason for his ill treatment (CB 173).
The Tribunal continued that it did not accept that the applicant being released on bail from his imprisonment was plausible. The Tribunal then stated:
As to his claim to have been released on bail and to have been awaiting trial on a charge relating to being a terrorist or otherwise being involved with anti-government activities, I have regard to the evidence in the US State Department Report for 1998 which observes that at that time it was not uncommon for those accused of non-violent political crimes to be kept in custody until the conclusion of their trials, and also observes that access to a lawyer was not always granted. By contrast, Mr [name supplied] claimed to have been given access to his lawyers, and having come before a court and been questioned by a judge about these matters to have been quickly released from detention. Therefore, generally speaking, his treatment was not typical of that commonly facing individuals accused of non-violent political crimes and is more consistent with the charge having been dropped (CB 174).
The Tribunal rejected the applicant’s claim that he had been under constant surveillance since the time of the trial. The police were aware of his residence and yet did not detain him or raid his home during that two and a half year period. This was inconsistent with the claim that the police were after him (CB 174-175).
The Tribunal did not accept that the applicant’s name change was obtained by bribing officials. The court documentation approving this change appeared to be genuine and the Tribunal was satisfied this change occurred in a legal and open manner (CB 174).
The applicant claimed he received documents from his wife in relation to court proceedings against him at a time when he was living in Kuwait. The Tribunal considered that, were this the case, a check of the airport’s computer system would have shown him to be a person due to be tried on political charges, and as a result he would have been prevented from leaving the country (CB 175-176).
Ultimately the Tribunal decided that it was not satisfied that the applicant is being sought by the Turkish authorities in relation to any matter arising from suspicions about his political views or activities. The Tribunal continued at page 176 of the court book:
I do not accept that police have come to his home since his departure from Turkey for any reason associated with such views or activities. The chance is therefore remote that he will be persecuted for the reason of political opinion if he returns to Turkey.
The applicant then filed the application in this Court seeking judicial review of the Tribunal’s decision pursuant to the Migration Act 1958, and the Court has explained to the applicant that the function of this Court is not to review findings of fact; it is to look for errors of law or the failure to give a fair hearing.
In his application to this Court the applicant set out two claims in relation to the Tribunal failing to believe his evidence, and did not set out any grounds for the application.
In his amended application filed on 2 August 2005 the applicant set out seven grounds as well as particulars. A summary of the grounds is as follows: (1) Grounds of dispute regarding credibility by Refugee Review Tribunal, (and the Court takes that as being grounds where the applicant says the Tribunal was wrong in questioning his credibility). The first of those grounds is “paying bribes to change name and obtain new passport and reason of change.” The second is “validity of fear and threats imposed on me by police.” The third ground is “subjection to further harm.” The fourth ground is questioning “my entering or re-entering Turkey”. There are particulars stated after these grounds which the Court has looked at and considered. The fifth ground is “further fear of persecution and safety.” The sixth ground is “medical evidence relating to torture by police.” As pointed out before, this Court cannot accept further evidence that was not before the Tribunal. The seventh ground of his application is “fear of persecution due to race or religion.”
The grounds of the amended application seek to challenge adverse findings by the Tribunal as to the credibility of the applicant. The applicant seeks to challenge findings of fact by the Tribunal in ground 1, and it is not open to this Court to receive further evidence in relation to that. Similarly, ground 2 challenges finding of fact by the Tribunal, and this Court cannot review those findings. Ground 3 challenges findings of fact by the Tribunal which cannot be reviewed by this Court. Similarly, grounds 4 and 5 challenge findings of fact by the Tribunal which cannot be reviewed by this Court. In ground 6 the applicant alleges that he has new medical evidence, but as stated earlier it is not open to this Court to receive further evidence on judicial review. In ground 7, the applicant states he has new evidence relating to violence in Turkey. It is not open to this Court to accept that further evidence.
In his further amended application filed on 28 October 2005 the applicant sets out eight grounds of complaint against the Tribunal, plus particulars in support of those grounds. Although the Court marked the further amended application and the amended application as exhibits in this matter, it later stated that the only parts of the application that it accepts into evidence are the formal parts, and not the attached further evidence with those applications.
In the further amended application the particular grounds the applicant has stated are: (1) “that he is now able to submit important medical evidence.” As stated to the applicant earlier, this is a judicial review of the decision of the Tribunal as to whether an error of law occurred or whether he was denied a fair hearing on the basis of the evidence then before the Tribunal. It is not for this Court to review findings of fact by the Tribunal. It is not open to this Court to receive evidence that was not before the Tribunal. The Court therefore rejects this ground.
Ground 2 relates to further material and evidence. For reasons already stated it is not open to this Court to receive further evidence and the Court rejects this ground. Ground 3 relates to further medical evidence. It is not open to the Court to accept that evidence, and the Court rejects that ground. In ground 4 the applicant states that he could not obtain the evidence when the matter was before the Tribunal. That does not establish any error of law by the Tribunal, and it does not establish a failure to accord natural justice including a fair hearing to the applicant. The original application for review of the decision of the Minister’s delegate was made on 17 December 2004 and the applicant gave oral evidence before the Tribunal on 8 February 2005. The Tribunal acted properly on the evidence before it at the time and it is not open to this Court to receive further evidence.
Ground 5 of the further amended application relates to documents from the internet confirming the existence of and continuation of torture at the hands of Turkish police. The applicant says this conflicts with biased reports received from the Turkish embassy which was submitted, he says, to the Refugee Review Tribunal. Again this relates to new evidence and it is not open to this Court to receive it. Ground 6 relates to new evidence relating to court action in Turkey, and it is not open to this Court to receive that information. The Court therefore rejects grounds 4, 5 and 6.
Ground 7 relates to new information about police or court action against the applicant. For reasons already expressed, it is not open to this Court to receive that further evidence, and the Court rejects that ground. Ground 8 relates to errors made from misinterpretation by translators. It is the understanding of the Court from what has been said during this case that those misinterpretations were rectified at the hearing before the Tribunal, and the Court rejects any assertion in that ground that the Tribunal made any error of law or denied procedural fairness. If there were any errors in earlier documentation the applicant had adequate opportunity in his amended application and in his further amended application: and when he appeared before the Tribunal, to correct that material. As the Court has heard today, the misinterpretations were corrected when the applicant appeared before the Tribunal.
The Court finds that there were no errors of law that were made by the Tribunal in hearing the applicant’s case, and the applicant was given a fair hearing. The Court finds that the Tribunal’s decision is a privative clause decision and has not been affected by jurisdictional error. In such circumstances and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere with the decision of the Tribunal. Accordingly, the Court orders that: (1) the applications are dismissed; (2) that the applicant pay the costs of the first respondent fixed at $4,300.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Turner FM.
Deputy Associate: Sarah James
Date: 15 December 2006
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