SZRGA v Minister for Immigration

[2012] FMCA 1222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRGA & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1222

MIGRATION – Review of decision of the Refugee Review Tribunal – the Tribunal did not consider claims expressly made – the Tribunal asked itself the wrong question – jurisdictional error – application allowed.

Migration Act 1958 (Cth), ss.36, 65, 476
Federal Magistrates Court Rules 2001 (Cth), r.11.11

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
SZQMT v Minister for Immigration & Anor [2012] FMCA 101
Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; (2003) 133 ALR 226
MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541
NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 105 FCR 548
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Citizenship v MZYHS [2011] FCA 53
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; (2012) 202 FCR 514
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824; (2001) 194 ALR 244
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZRKX v Minister for Immigration & Anor [2012] FMCA 1055
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265

First Applicant: SZRGA

Second Applicant: SZRGB

Third Applicant: SZRGC

Fourth Applicant: SZRGD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 545 of 2012

Judgment of: Nicholls FM

Hearing date: 30 August 2012 and 3 December 2012

Date of Last Submission: 3 December 2012

Delivered at: Sydney

Delivered on: 19 December 2012

REPRESENTATION

Counsel for the Applicants: Mr C Jackson

Solicitors for the Applicants: KTG Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ in the nature of certiorari quashing the decision of the second respondent made on 17 February 2012.

2. A writ in the nature of mandamus compelling the second respondent to reconsider the application according to law.

3. The first respondent pay the applicants’ costs set in the amount of $5,671.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 545 of 2012

SZRGA

First Applicant

SZRGB

Second Applicant

SZRGC

Third Applicant

SZRGD

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 12 March 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 21 August 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 17 February 2012, which affirmed the decision of the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

1. The applicants are citizens of Turkey and of the Alevi faith (Court Book – “CB” – CB 15). They arrived in Australia on 1 February 2011 with visitor visas (CB 16). The first and second named applicants are husband and wife. The third and fourth named applicants are their children.

2. On 28 February 2011, the first named applicant (“the applicant”), with the assistance of a migration agent, applied for a protection visa. The second, third and fourth named applicants applied as members of the applicant’s family unit (CB 1 – CB 67).

Claims for Protection

1. The applicant’s initial claims to protection were set out in a covering letter drafted by the applicants’ migration agent (CB 1 – CB 3).

2. The applicant claimed that, for reason of his being an Alevi, he was part of a minority group which was subjected to persecution from an Islamic fundamentalist government (CB 1.4). Further, he claimed that his small business was ostracised because of his faith (CB 1.7).

3. The applicant also claimed that he attended a Christian church in both Turkey and Australia and that, if returned to Turkey “… such exploration will not be tolerated and will serve to exacerbate his position” (CB 2.5).

4. The applicant claimed that his children had also been “… prejudiced as a result of the conflict” (CB 2.9) and that he could not relocate within Turkey for reason of the presence of Islamic fundamentalists (CB 2.7).

5. In a letter dated 9 April 2011, the applicants’ migration agent set out further claims in support of the applicant’s protection visa. He noted that the claims made in that letter “supplemented” the claims made in the earlier letter that accompanied the protection visa application (CB 73 – CB 74).

6. The applicant claimed that he was “… continuously being followed by undercover police who also monitor him, which includes entering his shop” (CB 73.6). Further, on 20 November 2008, that the police detained him for approximately one and a half hours (CB 73.7). On 19 December 2009, he claimed that while travelling to a religious event he was again detained by police where he was “physically mistreated… he had a gun placed in his mouth and he had his groin both kicked and squeezed” (CB 73.9). During his detention the applicant claimed that he was questioned “… about why he does not go to the mosque or fast and why his wife did not wear the hijab” (CB 74.1).

7. The applicant claimed that “… due to the monitoring and police harassment” his business was forced to close at the start of 2010 (CB 74.2).

8. The applicant further claimed that, if returned to Turkey, he would have to worship in secret as Turkey “… is dominated by the Sunnis and is becoming radicalized” (CB 74.3).

The Delegate

1. The applicant was interviewed by the delegate (CB 68 – CB 72). On 13 May 2011, the delegate refused the grant of protection visas to the applicants (CB 75 – CB 92).

2. Although the delegate accepted that the applicant was an “Arab-Alevi” and that he may have faced discrimination in Turkey for reason of his religion, which may have included being detained and mistreated, the delegate was not satisfied that this constituted “… a serious assault causing significant or lasting injury” (CB 90.6). Nor that that was a reason for the collapse of his business (CB 91.3). The delegate also noted that the applicant’s claims regarding his lack of religious freedom were vague and lacked detail and, consequently, did not amount to serious harm in the Refugees Convention sense (CB 90.7). Further, that if he were “… to return to Turkey he would be able to practice his religion without facing a real chance of serious harm and would not face major difficulties with the police” (CB 90.8).

The Tribunal

1. On 1 June 2011, the applicants applied, with the assistance of their migration agent, to the Tribunal for review of the delegate’s decision (CB 93 – CB 98).

2. On 12 September 2011, the Tribunal wrote to the applicants, via their migration agent, inviting them to appear before it at a hearing scheduled for 15 November 2011 (CB 103 – CB 106). Only the first and second named applicants attended that hearing and provided evidence and supporting documentation (CB 107 – CB 108 and CB 110 – CB 111).

3. On 17 February 2012, the Tribunal affirmed the delegate’s decision not to grant protection visas to the applicants (CB 114 – CB 124).

4. The Tribunal accepted that the applicant was an Alevi who faced harassment by the police “… for reasons of his charitable work in support of the Alevi community” ([54] at CB 122). It further accepted “… that the closure of the business was related in part to the deterioration in the relations between Sunnis and Alevis in Adana” (the applicants’ home area) ([54] at CB 122). However, the Tribunal did not find that the closure of the business was for a Refugees Convention related reason ([54] at CB 122 and [56] at CB 123). Therefore, the Tribunal concluded that it was reasonable for the applicant to return to Turkey, noting that he was a successful businessman and that there would be “… no serious impediment… to him establishing a business there” ([58] at CB 123).

5. The Tribunal further accepted that the applicant had been “… briefly detained, and suffered mistreatment at the hands of the Turkish authorities, and that he had a gun placed in his mouth, and his testicles squeezed” (CB [54] at CB 122). However, in regard to the latter incident, the Tribunal noted that “[g]iven the more serious nature of these events, however, the Tribunal had some serious concerns as to why the applicant had not mentioned them in his initial statement” ([54] at CB 122). Further, the Tribunal noted that the applicant had not suffered any serious harm after this incident up to his departure from Turkey and, therefore, found that there was insufficient evidence before it to indicate that the applicant was of ongoing interest to the authorities ([56] at CB 122 – CB 123).

6. The Tribunal also noted the applicant’s delay in departing Turkey and his delay in claiming protection on arrival in Australia ([60] at CB 123). The Tribunal did not accept the explanations proffered by the applicant for this delay and, consequently, found that the applicant’s delay was not consistent with someone who had a subjective fear of persecution ([60] at CB 123).

7. Ultimately, these findings, coupled with country information regarding the treatment of Alevis in Turkey, caused the Tribunal to find that there was not a real chance of persecution for a Refugees Convention reason if the applicants were to return to Turkey now, or in the reasonably foreseeable future ([61] – [62] at CB 123).

Before the Court

1. Some discussion must be dedicated to the background of this matter.

2. On 28 March 2012, the matter was first brought before this Court for a first Court date, at which time the applicant appeared in person with the assistance of an interpreter in the Turkish language. The second, third and fourth named applicants did not appear at that time. As the third and fourth named applicants are minors, the applicant was appointed their litigation guardian pursuant to r.11.11 of the Federal Magistrates Court Rules 2001 (Cth).

3. Also at that time I referred the applicants to the Court’s “RRT Legal Advice Scheme” (“RRTLAS”), as the sole ground asserted in the application did not reveal jurisdictional error. Further orders were made outlining a timetable for how the matter would proceed and the matter was set down for final hearing on 30 August 2012.

4. On 3 May 2012, the applicants met with an assigned lawyer from the RRTLAS. That lawyer provided written advice to the applicants and drafted an amended application.

5. On 20 August 2012, KTG Lawyers provided a Notice of Address for Service for the applicants and, on 21 August 2012, an amended application was filed with the Court’s Registry. I note that this was outside the initial timetable made on 28 March 2012.

6. On 27 August 2012, the first respondent filed and served written submissions. On 29 August 2012, the applicants’ lawyers filed an Application in a Case, annexing an affidavit made by Mr Richard Killalea, seeking that the applicants be given leave to rely on the amended application and written submissions.

7. On 30 August 2012, the matter came before the Court for final hearing. At that time the applicants were represented by Mr C Jackson of counsel and the Minister was represented by Mr T Reilly of counsel.

8. I raised with the applicants my concerns about the filing of documents outside the time provided for by orders made by me on 28 March 2012, particularly as the late filing of the documents meant I had not had adequate time to properly prepare for the final hearing. In the circumstances, it was appropriate that the hearing be adjourned in order for the applicants to properly prepare their case.

9. Ultimately, at the resumed final hearing, the Court had before it an amended application, the Court Book in evidence, and written submissions by both parties.

Application to the Court

1. The grounds of the amended application are as follows:

   “Ground One

   The Tribunal asked the wrong question, and/or failed to give proper, genuine, and realistic consideration to integers or aspects of the Applicants’ case (and thus failed to take into account considerations it was bound to take into account).

   Particulars

   Particular one

   1.1 The Tribunal did not ask whether the situation in Turkey had changed since 2008, as the First Applicant had asserted, in that the government had become more fundamentalist and intolerant of moderate Muslim sects such as the Alevi.

   Particular two

   1.2.1 The Tribunal;

   (i) accepted that the First Applicant had suffered serious harm in December 2009;

   (ii) accepted that the harm was a result of the First Applicant’s works of charity in the Alevi Community;

   (iii) noted that the First Applicant claimed to have reduced his charitable activities, and, implicitly, that he reduced his charitable activities because of the risk of harm that he feared (Relevant Documents, page 119 [40]);

   (iv) had the First Applicant’s claim before it that acts of charity were an expression of his faith (Relevant Documents, page 73 [1]).

   1.2.2. Therefore, the Tribunal should have asked whether, first, it accepted that the performing of charity work was an expression of the First Applicant’s faith, second, whether it accepted that the First Applicant reduced his charitable activities because of the risk of harm that he faced, and third, whether this was, in fact, a symptom of persecution (S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

   Particular three

   1.3 The Tribunal failed to consider where the Applicant was living following his decision to leave Adana and prior to his coming to Australia, and, if that place were other than Adana, whether he would be at risk if he returned to Adana, and, if he would be at risk in Adana, whether it would be reasonable for him to relocate permanently to another part of Turkey.

   Ground Two

   The Tribunal’s failure to ask whether the cessation of charity work was a symptom of persecution was the consequence of a misunderstanding of the law, and was an error of law, of the kind identified in S395.”

Applicants’ Submissions

1. The applicants’ initial submissions addressed two issues. First, the Tribunal’s failure to consider a claimed recent change in the country situation in Turkey for Alevi Muslims. Second, the Tribunal’s failure to consider the evidence relating to the claim that the applicant would suffer persecution for reason of his charitable work as part of his Alevi faith (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE No.2”)).

2. In respect of the first issue, the applicants submitted that the Tribunal failed to take into account a relevant consideration, namely that the situation in Turkey for minority groups had deteriorated significantly, particularly since the election of the current government. The applicants asserted that the Tribunal “side-stepped” the claim as it did not engage in an “active intellectual process” with respect to that claim (SZQMT v Minister for Immigration & Anor [2012] FMCA 101 and Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; (2003) 133 ALR 226).

3. In respect of the second issue the applicants submitted that the Tribunal had accepted that the applicant had suffered serious harm in December 2009 as a result of the applicant’s charitable work (which was part of his Alevi faith) and, that as a consequence, the applicant had reduced his charitable activities. It was the applicants’ submissions that the Tribunal was therefore required to consider whether the applicant’s acts of charity were a “core component” of the Alevi faith (NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 (“NABD of 2002”) at [9] per Gleeson CJ). Further, if the applicant had modified his religious practice in order to avoid further serious harm and whether by doing so, the applicant was concealing his faith. In support of this argument the applicants relied on S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (“S395/2002”) at [80] – [82] per Gummow and Hayne JJ and Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 105 FCR 548. The applicants submitted that the Tribunal’s failure to ask such questions was a misunderstanding of the law as referred to in S395/2002 (ground two) or in the alternate, was a failure to address an integer of a claim (ground one, particular two).

4. The applicants submitted in further submissions in support of ground one, particular three that the Tribunal had failed to adequately address the risk of harm to the applicant if he returned to Turkey. In particular that, given the country information available to it, the Tribunal was required to inquire as to where the applicant would return and to consider whether it was reasonable, in the circumstances, for the applicant to return to that location (MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 (“MZYPW”) at [6] – [9] per Flick and Jagot JJ).

First Respondent’s Submissions

1. In respect of ground one, particular one, the first respondent submitted that the applicant did not make out the claim “in the precise terms” as submitted before the Court by the applicants’ counsel. The first respondent submitted that the applicant instead complained about the current situation for Alevis in Turkey and that Sunnis had become more powerful under the current regime. The first respondent submitted that that claim was dealt with by the Tribunal at [58] (at CB 123) of its decision record. Further, that that finding was of sufficient generality to address all of the applicant’s claims (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”)).

2. The first respondent also submitted that the Tribunal’s conclusion was open to it based on the country information that was before it (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (“SZJSS”) at [29] – [37] per the Court). Further, even if a wrong finding of fact had been made or insufficient weight was attributed to country information, jurisdictional error could not be made out in those circumstances (Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 at [36] – [43] per Kenny J). However, and nevertheless, the choice of weight to attribute to country information is a factual matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] – [13] per the Court).

3. In respect of ground one, particular two, the first respondent submitted that, contrary to what was asserted by the applicant before the Court, he never claimed before the Tribunal that the reduction in his charitable activities was in itself persecutory of him. Rather the reduction in the applicant’s charitable activities was a result of his business failing, which, the Tribunal did not accept was for a Refugees Convention reason.

1. The first respondent submitted that as the Tribunal found at [57] – [58] (at CB 123) of its decision record that there was no impediment to the applicant establishing a business in the future, it logically flowed that the applicant could resume his charitable activities. The respondent relied on WAEE for the proposition that the Tribunal was not under any obligation to address the matter in more detail as there had been no specific claim made that, in itself, the reduction in the applicant’s charitable activities was persecutory, nor that he would not be able to perform them in the future.

2. In response to particular three of ground one the respondent emphasised that the Tribunal found that the applicant did not have a well-founded fear of harm in Turkey and, therefore, this fear was not well-founded in Adana. Consequently, there was no need to consider the question of relocation (SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; (2012) 202 FCR 514 (“SZQEN”) at [28] – [33] per Yates J).

3. In respect of the second ground the first respondent submitted that the applicant never claimed to fear persecution for reason of his reduction in charitable activities. To the contrary, the Tribunal found that the applicant would be able to resume these activities if he returned to Turkey, but noted that it did not find that the applicant could or should have to modify these activities to avoid persecution and, therefore, S395/2002 had no application. The first respondent submitted that the Tribunal did ask the right question by concluding that applicant did not have a well-founded fear of harm and did not genuinely fear harm (NABD of 2002).

Consideration

1. The application raises three issues:

   1)Did the Tribunal deal with the applicant’s claim that he would suffer persecutory harm because of, in part, the increasing fundamentalist nature of the Turkish government which meant that as an Alevi, he would be subject to serious harm on return? (Ground one, particular one.)

   2)Did the Tribunal fall into legal error by not addressing whether or not the applicant was at risk of persecutory harm as a result of the reduction in his charitable activities? (Ground one, particular two and ground two.)

   3)Did the Tribunal fall into error in not considering whether it would be reasonable for the applicant to relocate within Turkey to avoid persecutory harm? (Ground one, particular three.)

2. For the reasons that follow, the applicant succeeds on the first two matters. He does not succeed on the third. A number of preliminary points need to be made.

3. It is the case that Tribunal decision records are to be read fairly and not overzealously with an eye attuned to error (Wu Shan Liang). However, this should not be taken by the Tribunal as some licence to ignore the purpose of decision records. That is, to inform the relevant reader of the reasoning leading to the conclusion made. The matters set out in s.430 of the Act are plainly directed to this purpose.

4. It has been said that “…brevity is the soul of wit” (Shakespeare, Hamlet, Act 2, 90). Of course a precise, concise, decision record is to be welcomed. But any such decision record has to be comprehensive in its coverage of the matters the Tribunal is required to address, and in the manner it is required to address them. While in some cases calls to a finding of generality subsuming a matter of important detail may suffice, it does not do so in the current case. Such calls cannot be used to “gloss over” or excuse that which is simply not there (see further below).

5. Ultimately the only evidence before the Court of the Tribunal’s reasoning is the decision record itself. Therefore, the decision record must speak for itself. No amount of the advocate’s art before the Court can explain the Tribunal’s reasoning when the decision record itself is silent or deficient.

Issue One

1. In particular one to ground one the applicants complain that the Tribunal asked itself the wrong question, or failed to give “proper, genuine and realistic consideration” to the claims, or integers, of the claim about whether there had been a change in attitude towards the Alevis since 2000 for the reason that the government had become more fundamentalist and intolerant.

2. First, consideration must be given to what were the applicant’s claims. As discussed above, the applicants’ migration agent wrote to the delegate on 9 April 2011 (CB 73 – 74) and stated, in the first paragraph of that letter:

   “… [The applicant] provides the following additional information to supplement his initial instructions based upon his claim of being a member of the Alevis…”

   [Emphasis added.]

3. On a reading of its decision record it appears that the Tribunal took this document to supplant the applicant’s original claims made in his protection visa rather that add too (“supplement”) the applicant’s original claims. For example, this can be seen by the applicant’s initial claims including his interest in Christian activities (see CB 2.4), not being addressed by the Tribunal in its decision record. This matter was not pressed by the applicant before the Court and remains only as another example of the failure of the Tribunal otherwise addressed below.

4. Consequently, the claims made by the applicant must be drawn from both the statement with the original protection visa application and the additional document submitted to the delegate on 9 April 2011. These claims are set out at [5] – [11] above.

5. Relevant to this ground of review, the applicant claimed in his protection visa application (at CB 1.4) that:

   “… [the Alevi] religious group is perceived as a minority in Turkey and has been subject to increasing persecution and cumulative discrimination within an Islamic fundamentalist environment. The Prime Minister, Deputies, the power infra structure is dominated by the Sunnis in Turkey. The country has proudly sought to be secular. This position has, however been increasingly challenged by virtue of the impact of Islamic fundamentalism… the difficulties [the applicants] face are gaining in strength on a national basis in Turkey, a situation further exacerbated by the abject turmoil which has recently emerged in the Middle East. The danger is the possible emergence of Islamic fundamentalists throughout the region, who will not hesitate to further erode Islam’s only secular state…”

   [Emphasis added.]

6. In the document submitted by the applicants’ migration agent, it was claimed (CB 74.3) that:

   “… [The applicant] believes there is no place for him and his family in Turkey as the country is dominated by the Sunnis and is becoming radicalized…”

   [Emphasis added.]

7. At the Tribunal hearing the Tribunal recounted at [30] (at CB 118) of its decision record:

   “The applicant testified that Islamist fundamentalism is growing… The applicant fears the current government and Sunnis in general.”

   [Emphasis added.]

8. The applicants’ attack on the Tribunal’s decision was cast in terms of a failure to deal with an integer of the applicant’s claim and a failure to engage in an “active intellectual process”, or to give this integer “proper, genuine and realistic consideration”, such that it leads to jurisdictional error.

9. It must be said that, in the circumstances, these submissions serve to distract attention away from, and overly complicate, what in my view, is clear. That is, that the Tribunal fell into jurisdictional error because it failed to consider a claim to fear persecutory harm which had been expressly made (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24], see also NABE (No.2) at [68], Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824; (2001) 194 ALR 244, WAEE and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51).

10. The applicant did not just fear harm because he was an Alevi. Rather, the applicant had made clear in his initial statement that his fear of persecutory harm if he were to return to Turkey in the foreseeable future was because, as an Alevi, he would be subject to increasing threats of harm in an environment where Islamic fundamentalists opposed to Alevis were growing in power. The other elements to this particular claim were that this was exacerbated by the recent turmoil in the Middle East and that the applicant had come to the specific attention of the Turkish authorities.

11. The Tribunal did address this latter aspect of the applicant’s claim. However, it did not deal with the claim as a whole. It is very clear that the applicant feared returning to Turkey for reason of rising fundamentalism of the current government and being known to the authorities in the context of being an Alevi. This was a distinct claim which is “substantial, clearly articulated argument relying upon established facts” (see authorities in [54] above).

12. In the Tribunal’s decision record there is no discussion of this claim. I reject the first respondent’s submission that the claim was subsumed in the generality of the Tribunal’s findings, specifically at [58] (at CB 123) of its decision record, which states:

    “Given the applicant’s evidence that he was as a successful businessman, the Tribunal finds that there would be no serious impediments to him returning to Turkey and establishing a business there. Noting the documentary evidence cited above in relation to the situation of Alevis in Turkey, and the applicant’s own circumstances, the Tribunal finds that there is no real chance that the applicant would face persecution now or in the reasonably foreseeable future if he were to return to Turkey.”

13. Further, the Tribunal stated at [61] of its decision record (at CB 123):

    “The Tribunal further considered the documentary evidence in relation to the situation of Alevis in Turkey noted above. Based on the documentary evidence, provided by independent entities with expertise in the human rights situation of Alevis in Turkey, the Tribunal finds that there is no real chance that the applicant would face persecution now or in the reasonably foreseeable future were they to return to Turkey for reasons of their Alevi religion.”

14. In this particular the first respondent’s focus was on the country information before the Tribunal and the choice of, and weight to be attributed to, that evidence. I agree that it is well established that the weight to be attributed to evidence is a matter for the Tribunal and it is not within the jurisdiction of this Court to assign different weight (SZJSS). However, this is not a case that turns on any such principle.

15. It must be emphasised here that the jurisdictional error is not necessarily because the Tribunal considered particular country information and assigned certain weight to it. Rather, the Tribunal’s reliance on country information as to the situation of Alevis in Turkey, focussed on the situation in 2005, 2006 and earlier (CB 120 – CB 122), is an indicator that the Tribunal either did not understand, but certainly failed to consider, the claim that it was the political environment in Turkey in 2009, and increasingly since that time, that particularly created the basis for the applicant’s claim to fear persecutory harm as an Alevi.

16. On its own that indicator may not have been fatal to the Minister’s case. It is beyond doubt, however, when regard is had to the Tribunal’s reasoning as a whole. Even on a fair reading, it is clear that the Tribunal made no attempt to deal with the applicant’s clearly articulated claim that emanated from growing Islamic fundamentalism. There is no reference in the Tribunal’s decision record to the rise of fundamentalism in Turkey and the resultant recent animosity between the Sunnis and Alevis. It cannot be said that a mere, general, reference of “… [n]oting the documentary evidence cited above in relation to the situation of Alevis in Turkey, and the applicant’s own circumstances…” ([58] at CB 123) shows that the Tribunal dealt with the claim. Particularly as that documentary evidence says nothing about the temporal (“current”) context in which the applicant made his claim to fear persecutory harm.

17. An applicant’s claim to seek protection is a relevant consideration that the Tribunal must take into account (Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J). Essentially, it is the Tribunal’s primary task in asking itself whether the requisite level of satisfaction has been met to find that the applicant meets the definition of “refugee” (ss.65 and 36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). In that process the Tribunal must consider all claims made as they are made either expressly (as in this case) or even clearly arising in the circumstances presented. The Tribunal has not fulfilled this role and that failure is sufficient to warrant the grant of the relief the applicants seek.

Issue Two

1. However, for the sake of completeness, I will address the applicants’ other complaints.

2. In ground one, particular two (and for that matter ground two) the applicants complain that, in light of certain findings regarding the applicant’s charitable activities, the Tribunal should have asked itself whether the mere performance of this activity was an expression of the applicant’s faith and, therefore, a reduction in the applicant’s charitable activities was because of the risk of the harm that he faced.

3. In S395/2002 at [51] – [54] per McHugh and Kirby JJ and at [87] – [89] per Gummow and Hayne JJ, the plurality of the High Court provided that if the Tribunal found that the fear of persecution held by the applicants caused them to modify their homosexual behaviour and act discreetly in the past, then the Tribunal was bound to go on and consider what would be the repercussions if the applicants lived openly as a homosexual couple in Bangladesh. Relevantly at [88] Gummow and Hayne JJ said:

   “This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live ‘discreetly’. It did not ask whether the appellants would live ‘discreetly’ because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to ‘live openly as a homosexual in Bangladesh’; secondly, that ‘[t]o attempt to [live openly] would mean to face problems’; and, thirdly, that ‘Bangladeshi men can have homosexual affairs or relationships, provided they are discreet’. Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants’ fears well founded. All that was said was that they would live discreetly.”

4. Therefore, in light of S395/2002, and in application of the reasoning there, I agree with the applicants that the Tribunal was bound to consider whether the charitable acts by the applicant were an expression of his faith, as he claimed, and, therefore, whether the cessation of those activities was because of the persecution faced. Further, what would occur to the applicant if he were to return to Turkey and resume the same earlier level of charitable activities.

5. The applicant claimed in the letter of 9 April 2011 that he performed “acts of charity in terms of service to the poor” as part of his religious observance (CB 73.5). At the hearing before the Tribunal the applicant stated that he had been involved in charitable work about five to six times in a year where he distributed goods to disadvantaged Alevis ([34] and [36] at CB 118). The applicant further claimed that, on 30 November 2008, while with others preparing food and goods for disadvantaged Alevis the police attended and questioned them about their activities and told the applicant “that they would keep an eye on him” ([35] at CB 118). The applicant further stated at the hearing that he had been approached by the local Alevi religious leader who inquired why the applicant had reduced his charitable activities but stated that he did not inform the leader of “his detentions” ([40] at CB 119).

6. The Tribunal accepted at [54] (at CB 122 – CB 123) of its decision record:

   “… that the applicant faced harassment at the hands of the police for reasons of his charitable work in support of the Alevi community… that the applicant was briefly detained, and suffered mistreatment at the hands of the Turkish authorities, and that he had a gun placed in his mouth, and his testicles squeezed.”

7. The Tribunal further stated in the same paragraph:

   “… Given the more serious nature of these events, however, the Tribunal had some serious concerns as to why the applicant had not mentioned them in his initial statement…”

8. The Tribunal then stated at [56] (CB 122) of its decision record:

   “The Tribunal notes that the applicant faced no serious harm prior to departure from Turkey apart from the detention he raised in his second statement since December 2009. The Tribunal finds this to be an isolated incident. There is insufficient evidence before it of continuing interest in the applicant in Turkey given his own evidence of his circumstances from the time of this claimed incident until his departure from Turkey and evidence adduced regarding a lack of interest in him since departure from Turkey…”

9. These extracts above are the only references in the Tribunal’s decision record to the applicant’s charitable activities. The claim that was clearly made by the applicant was that, due to the harassment and detention by police (the reasons for which included the applicant’s charitable, Alevi related, activities), he reduced his involvement in these activities. That is, the claim arising, at least, from the circumstances presented, was that the fear of persecution caused the applicant to modify his behaviour. Following S395/2002 the Tribunal was required to consider if the applicant were to return to Turkey, whether he would engage in charitable activities and, as a result, face persecution, and that he should not be expected to modify his behaviour to avoid persecution.

10. I disagree with the first respondent that it can be said that the applicant attributed the cessation of his charitable activities to his business failing. The Minister relies on the Tribunal’s record at [38] (at CB 119) in this regard:

    “After his business failed, he reduced his activities in charitable work. He testified that his sons felt ostracism at school from other students, and faced discrimination.”

11. At best for the Tribunal this can only be said to be ambiguous as to whether the applicant actually said what precedes “he testified” or whether it was simply a juxtaposition of two pieces of evidence otherwise before the Tribunal. The lack of explanation in the decision record is problematic for the Tribunal. Importantly there is nothing in the Tribunal’s subsequent analysis to support the Minister’s assertion that the Tribunal addressed this claim. This remains as another example where another sentence, or line, by the Tribunal may have conveyed a clearer meaning.

12. The Tribunal had before it the applicants’ representatives’ submissions. These made clear that what the applicant was asserting was that what characterises, and is part of, the Alevi identity and belief is the doing of service to the poor through acts of charity (see for example CB 73.5). Further, the applicant gave evidence at the Tribunal hearing ([34] at CB 118) that:

    “[he] was involved in charitable work distributing goods to the disadvantaged Alevis.”

1. From the Tribunal’s own account of the hearing (the decision record) limited as it is, it is clear that the other relevant dimension to the applicant’s claim was that the police “interfered” with the charitable distribution (see at [36] at CB 118).

2. The Tribunal accepted that the applicant had suffered harassment in this regard ([54] at CB 122):

   “The Tribunal accepts that the applicant is an Alevi whose forefathers came to present day Turkish territory and remained there. It accepts that the applicant faced harassment at the hands of the police for reasons of his charitable work in support of the Alevi community. Although not raised in his initial statement in support of his protection visa application, the Tribunal accepts that the applicant was briefly detained, and suffered mistreatment at the hands of the Turkish authorities, and that he had a gun placed in his mouth, and his testicles squeezed. Given the more serious nature of these events, however, the Tribunal had some serious concerns as to why the applicant had not mentioned them in his initial statement. It further accepts that his business suffered a downturn at the end of 2009, and that the business was forced to close. The Tribunal accepts that the closure of the business was related in part to the deterioration in the relations between Sunnis and Alevis in Adana.”

3. It is important to note that this acceptance was made in a context of the presentation by the applicant of the connection between the Alevi faith and charitable work.

4. What is missing in the Tribunal’s analysis is any reference, let alone a finding, as to whether the reduction in charitable activities, and the imposition of any need to curtail these activities (activities plainly put by the applicant as being integral to his Alevi faith) was such as to amount, in the circumstances, to persecution.

5. The Minister asserts that at [57] – [58] (at CB 123) of the Tribunal’s decision record, which discusses the failure of the applicant’s business, makes clear that that failure was not for a Refugees Convention reason. In the circumstances I do not agree. This does not provide a basis to say that the applicant could resume his charitable activities if he wished to. That may have been a finding about the applicant’s business, it was not a finding about the relocation of his charitable activities. If there was a link between the two the Tribunal should have made it. What is set out by the Tribunal at [38] (CB 119) (see [72] above) is not sufficient to establish the link, and certainly not sufficient to say that a finding was made that dealt with the claim as put. That finding was a finding for the Tribunal to make, not the Minister’s representatives now before the Court.

6. As I stated in SZRKX v Minister for Immigration & Anor [2012] FMCA 1055 at [71] it is not for the Court to “fill in the gaps” of the Tribunal’s reasoning. The Tribunal did not make a finding that the cessation of the applicant’s charitable activities was attributable to the failing of his business. That connection has only been made before the Court by the first respondent. At [54] (at CB 122) of the Tribunal’s decision record, the Tribunal accepted that the applicant had been detained and mistreated for engaging in charitable activities and, also in the same paragraph, that the applicant’s business was forced to close and was related, in part, to the deteriorating situation between the Sunnis and the Alevis. These were two separate findings, the fact that they were written in the same paragraph is in the circumstances one of formatting. There is nothing in the sense of the meaning of each, or otherwise, to connect them.

7. Therefore the Court is left with the same issue as was revealed in particular one to ground one. That is, that the Tribunal failed to explore a claim clearly made by the applicant and, therefore, has fallen into jurisdictional error.

Issue Three

1. In ground one, particular three, the applicant complains that the Tribunal did not consider the issue of relocation. In support of this ground the applicant relied on MZYPW.

2. The answer to this complaint is quite straightforward. The Tribunal is only required to consider the issue of relocation to another part of the country of claimed persecution if the Tribunal has found that the applicant has a well-founded fear of persecution in his local or home area (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). This is not a case where the Tribunal so found.

3. Therefore I agree with the first respondent that the Tribunal was not required to consider the issue of relocation (SZQEN at [28] – [33] per Yates J).

Conclusion

1. The applicants have succeeded in ground one, particular one and particular two and ground two. In the absence of any reason to argue for the contrary, it is appropriate that I grant the relief sought and make the orders the applicants seek.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  19 December 2012