SZJBT v Minister for Immigration and Citizenship

[2007] FCA 374

FEDERAL COURT OF AUSTRALIA

SZJBT v Minister for Immigration & Citizenship [2007] FCA 374

Federal Magistrates Court Rules 2001 (Cth) R 44.12.1(a)

SZJBT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1615 affirmed

SZJBT v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2281 OF 2006

HEEREY J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2281 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJBT
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Application for leave to appeal be dismissed with costs.

2.The title of the proceedings be amended by the first respondent's description being changed to Minister for Immigration and Citizenship

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2281 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJBT
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of Driver FM of 30 October 2006, SZJBT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1615. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal dated 30 May 2006 to refuse to grant a protection visa to the applicant. The Magistrate, under rule 44.12.1(a) of the Federal Magistrates Court Rules 2001 (Cth), was not satisfied that the application had raised an arguable case for the relief claimed.

2. This being an interlocutory decision, the applicant must obtain leave and, amongst other things, must show that the decision of the Magistrate was attended with sufficient doubt. 

3. The applicant is a citizen of Turkey.  He arrived in Australia on 10 November 2005.  On 22 December 2005, he lodged an application for a protection visa.  This was refused by a delegate of the Minister on 15 February 2006, and on 20 March 2006 the applicant applied to the Tribunal for a review of that decision.  Before the Tribunal the applicant claimed to fear persecution by reason of his political opinion.  The applicant claimed he was a member of the Labour Party in Turkey before the military coup, after which he distanced himself from political activities for fear of persecution.

4. The applicant claimed that, once the situation in Turkey settled, he began to participate in political activities again and, in particular, to support “Saturday Mothers” meetings.  The applicant claimed that he was harassed and beaten by police during these meetings.  He claimed he provided his office for Teachers’ Union meetings and, as a result, was threatened by police.  The applicant further claimed he assisted a Kurdish friend and another friend to flee Turkey and, as a result, he was captured, beaten and interrogated by the secret police “deep state”.  After his release, the applicant claims he was threatened and told he would remain under surveillance.  The applicant claimed to fear that if he returned to Turkey he would be punished by the secret police.

   The decision of the Tribunal 

5. The Tribunal was satisfied the applicant was a member of the TIP, the Labour Party, before 1980 and ceased involvement after the military coup.  He was not a target of any politically motivated harm as a result of his involvement and, by the time of his departure, the applicant was a successful and prosperous businessman.  The Tribunal was satisfied the authorities had no adverse interest in the applicant as a result of his claimed link to the Saturday Mothers.  The Tribunal found it to be plausible that the applicant allowed members of the Teachers’ Union to meet in his offices and that he sympathised with the teachers who were involved, and that he was warned by the police after his office was used.  However, the failure of the police to detain the applicant allowed the Tribunal to infer that the applicant was not imputed with leftist views.  This was because, on independent country evidence, those likely to be imputed with leftist views would be targeted by police for arbitrary detention and torture. 

6. The Tribunal was satisfied that the applicant maintained peripheral links with political activists between 1996 and 1998 but had no such adverse consequences for him during his last seven years in Turkey.  In particular, the applicant was not imputed with leftist or political activist political opinion after 1998 as a result of actions in and prior to that year.  The failure of the applicant to join HADEP, a leftist pro-Kurdish group, and, on his own admission that he had nothing in support of HADEP or any of the similar parties, was not consistent with the applicant's claim to have been dedicated to democracy, human rights, and concern for Kurdish issues.  Rather, this was consistent with lack of interest in such issues. 

7. The Tribunal found that the account of assisting his Kurdish friends stretched credulity and the Tribunal could not be satisfied that the applicant had been truthful.  The Tribunal found that it was not credible for the applicant to have known his friend for 25 years and not know of which groups the applicant's friend was an active supporter.  The evidence given in this regard by the applicant was vague with no knowledge of political allegiances or activities being exhibited. 

8. As a result, the Tribunal inferred the applicant and his friend had no shared interest in politics.  The failure of the applicant to submit evidence that his friend stayed with him because he could not make contact with the friend and give evidence,  and that he did not know of any of the other friends, associates or relatives of his friend, made the claims of the applicant difficult to believe.  In particular, it was difficult to fathom he would have allowed two men in hiding from the police to live with him and accept from him large amounts of money, without asking for information about why they were being sought and for how long they had intended to stay. 

9. Although the Tribunal accepted that there is a "deep state" in Turkey, the various inconsistencies and illogicalities in the account of his abduction and torture, made the Tribunal doubt that it had occurred.  It was considered illogical that the applicant would be used as an informant instead of just being arrested.

10. Although the applicant claimed he was fearful because he was told he would be under surveillance, the Tribunal found the applicant acted in a manner which was consistent with a belief that he was not under surveillance or risk of harm.  The willingness of the applicant to expose himself to unnecessary risks of further harm cast out his claims to have believed himself under surveillance and a target of the “deep state”.  It was not for the Tribunal to speculate on why the applicant left Turkey if he did not fear some serious harm.

    Grounds before the Federal Magistrate 

11. In his application, the applicant claimed the Tribunal made a jurisdictional error when it failed to recognise a well-founded fear of persecution based on political ideals and experiences and that the manner in which the applicant departed Turkey (given his favourable financial situation) should have made it obvious the applicant feared for his safety.  He asserted jurisdictional error in the decision of the Tribunal in that it failed to recognise the cultural differences between the Turkish and Australian people which would assist them in understanding the behaviour of the applicant in relation to his Kurdish friend.

    Decision of the Federal Magistrate 

12. The Federal Magistrate found that, although the application asserted jurisdictional error, the particulars of the application indicated an attempt at merits review.  The applicant did not appear to understand or accept the reasoning of the Tribunal by which it rejected the core elements of his claim.  The Magistrate found no jurisdictional error was apparent on the decision of the Tribunal and that the appellant had failed to demonstrate an arguable case of jurisdictional error. 

    Application for leave to appeal: 

13. In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which he claimed the following:

    I believe that “Federal Magistrates Court” interpreted the law incorrectly and also favoured “the Immigration Office” instead of me. … If the law has been interpreted in a “reasonable way”, by this time I would be recognised as a refugee and not dealing with all this unnecessary courts and legal system.  There are no absolute grounds where the law makes the distinction and clearly prohibits me to get the protection visa that I applied for.

14. At the hearing before me, the applicant was not represented but was assisted by an interpreter.  He repeated claims going to the merits of his case.  He asserted he was forced to move to this country from Turkey because of fear for his life.  He asked rhetorically, why would he leave given his assets in Turkey?  He said that “all the precedents” applied in his case were wrong. 

15. In my view, the applicant has not shown that he has any prospects of appealing against the Magistrate’s decision finding that he had not raised an arguable case for the relief claimed.  The Magistrate, in my view, was plainly correct in finding that no arguable case of jurisdictional error was made out, and the applicant’s claims went purely as to the merits of this case, which was exclusively a matter for the Tribunal.

16. The application will be dismissed with costs.  The title of the proceedings will be amended by the first respondent’s description being changed to Minister for Immigration and Citizenship. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:        27 February 2007

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	S Free
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007