SZUSP v Minister for Immigration
[2015] FCCA 656
•20 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSP v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 656 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Turkey as an Alevi Kurd with a particular tribal affiliation – applicant disbelieved in important respects and his fears otherwise found not to be well-founded – whether the Tribunal’s conclusions not based on rationally probative evidence or otherwise vitiated by jurisdictional error considered – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425,499 |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 DZADQ v Minister for Immigration [2014] FCA 754 Minister for Immigration v Li [2013] HCA 18 Minister for Immigration v Pochi (1980) 44 FLR 41 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZNPG [2010] FCAFC 51 Minister for Immigration v SZNSP [2010] FCAFC 50 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 SZOOR v Minister for Immigration (2012) 202 FCR 1 |
| Applicant: | SZUSP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1947 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Mannings Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 11 July 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1947 of 2014
| SZUSP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 20 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant is a citizen of Turkey who arrived in Australia on 14 August 2011[1]. He applied for the protection visa on 9 August 2012[2]. The delegate interviewed the applicant on 23 October 2012[3]. The delegate refused the visa on 24 January 2013[4]. The applicant applied to the Tribunal for review on 19 February 2013[5]. The Tribunal held a hearing on 21 January 2014[6].
[1] Court Book (CB) 260 [1]
[2] CB 1-42
[3] CB 63.2
[4] CB 52-73
[5] CB 74-79
[6] CB 121-123
The applicant claimed to fear persecution in Turkey for reasons of his race and imputed political opinion. He claimed to be an Alevi Kurd and a member of the Kocgiri tribe, and to have suffered a variety of discrimination and harassment for this reason. He visited Switzerland for a week in 2009. He claimed he was arrested and detained and assaulted for three days by police in July 2010. He claimed that since his departure for Australia the police had visited his home on several occasions[7].
[7] see generally CB 260-265
The Tribunal noted significant concerns with the credibility of the applicant’s claims and evidence as a whole[8], and formed a strong impression that the applicant had “misconstrued and exaggerated” his actual experiences to form the basis for his protection visa claims[9]. It rejected the applicant’s claims, noting that his education and employment history, family circumstances, trip to Switzerland in 2009 and limited evidence from the applicant of discrimination against other family members all suggested that the applicant had not experienced any official or societal discrimination of note[10]. The Tribunal considered that the applicant’s account of his experiences prior to his trip to Switzerland cast doubt on his veracity and was highly unreliable[11]. The Tribunal further considered the applicant’s claims of harm after his return from Switzerland, in particular the alleged arrest and detention in July 2010 to be untrue, noting difficulties with the applicant’s evidence and his choosing to remain in Turkey for another year[12]. The Tribunal also disbelieved the applicant’s claim that since his departure the police had visited his home[13]. The Tribunal concluded that while the applicant may have faced some discrimination in the past this did not rise to the level of “serious harm”, and that his claim to have been detained and assaulted by the police, and that the police visited his house after his departure from Turkey, was untrue[14]. The Tribunal accordingly concluded that the applicant’s fears of Convention persecution were not well founded[15], and for the same reasons found that he was not entitled to protection under the “complementary protection” provisions[16].
[8] CB 263 [20]
[9] CB 263 [21]
[10] CB 267-271 [36]-[48]
[11] CB 271 [48], [50]
[12] CB 271-274 [49]-[61]
[13] CB 274-275 [62]-[63]
[14] CB 275-276 [67]-[69]
[15] CB 276 [70]-[72]
[16] CB 276 [73]-[75]
The judicial review application
The applicant relies upon his application for judicial review filed on 11 July 2014. There are four grounds in that application:
1. The Tribunal denied the Applicant procedural fairness.
Particulars
a. The Tribunal based its decision on speculation and guesswork and not on reasonably probative evidence.
2. The Tribunal’s decision was affected by apprehended bias
Particulars
a. The Tribunal misrepresented the evidence before it
b. The Tribunal unreasonably dismissed the psychiatric evidence
c. The Tribunal unreasonably dismissed the evidence of the Applicant’s family
3. The Tribunal’s decision was irrational and/or illogical
Particulars
a. The Tribunal found that the conduct complained of before he went to Switzerland adversely affected his credibility
4. The Tribunal failed to carry out its statutory responsibility
Particulars
a. The Tribunal failed to comply with Direction number 56 made by the Minister under the Migration Act 1958 s.499
I have before me as evidence the book of relevant documents filed on 27 August 2014.
The applicant and the Minister both made oral as well as written submissions.
Consideration
Ground 1 – procedural fairness
The first ground claims that the Tribunal denied the applicant procedural fairness, and alleges that the Tribunal’s decision was based on “guess work and speculation”. The applicant draws attention in particular to the Tribunal’s reasons at [21][17], [53][18] and [56][19]. The applicant notes that his case before the Tribunal was supported by written statements by friends, relatives, a former legal practitioner in Turkey, medical practitioners and the President of the Australia Alevi Cultural Centre.
[17] CB 263
[18] CB 272
[19] CB 273
The applicant relies upon the decision of Deane J in Minister for Immigration v Pochi[20]. His Honour’s judgment in that case stands for the uncontroversial proposition that an administrative tribunal (in that case the Administrative Appeals Tribunal) is under a duty to observe the requirements of procedural fairness and that it is an ordinary requirement of procedural fairness that a person bound to act judicially base his or her decision upon material which tends logically to show the existence or non existence of facts relevant to the issue to be determined. The principle was restated by the Full Federal Court in Rawson Finances Pty Ltd v Commissioner of Taxation[21].
[20] (1980) 44 FLR 41
[21] [2013] FCAFC 26 at [62] per Jessup J and [84] per Jagot J
While the principle is uncontroversial, its application depends upon the facts and circumstances surrounding the particular decision in issue. In Pochi the Federal Court was dealing with a deportation decision involving a broad Ministerial discretion at a time when the Migration Act 1958 (Cth) (Migration Act) was vastly less prescriptive than it now is. In the present case, the Tribunal was bound to follow its procedural code, including s.425, which required the Tribunal to afford a real hearing opportunity. No breach of s.425 is alleged. The Tribunal’s decision might hypothetically be impugned on the basis of legal unreasonableness[22], no evidence[23], or a failure to engage in an active intellectual process[24]. Those can each be seen as grounds of review closely related to the principle in Pochi.
[22] Minister for Immigration v Li [2013] HCA 18
[23] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
[24] DZADQ v Minister for Immigration [2014] FCA 754 at [53]
In the present case, I am not persuaded that jurisdictional error has been established. It is plain that the Tribunal’s decision turned on adverse credibility findings. The Tribunal stated at [20][25] that it had significant concerns about the credibility of the applicant’s claims and his evidence as a whole. At [21] the Tribunal said[26]:
The Tribunal detected in his personal circumstances as a whole very little objective evidence that he faced noteworthy difficulties living in Turkey, for any reason. He lives in the capital city, completed tertiary education (Bachelor and Masters degrees), and worked up till February 2011 in customer relations for Mikro Bilgit Kayit ve Dagitim, a ‘Technical and Scientific Information’ company in the applicant’s chosen field. The Tribunal formed the strong impression that the applicant had taken a number of actual life experiences, and misconstrued and exaggerated these to form the basis for his protection claims.
[25] CB 263
[26] CB 263
The Tribunal also expressed concern about the applicant’s delay in seeking protection.
Before the Tribunal, the applicant sought to support his claims by reference to statements from a range of people, as earlier noted. The Tribunal considered that material but did not accept it as proof of the truth of the applicant’s claims. The Tribunal was under no obligation to accept the probative value of that material[27].
[27] see Minister for Immigration v SZNSP [2010] FCAFC 50 at [23]-[40] and Minister for Immigration v SZNPG [2010] FCAFC 51 at [25] and [37]
In my opinion there was a rational basis of reasoning for the Tribunal to discount each of the statements relied upon by the applicant. Some of them were statements by people who could be expected to want to support the applicant. Others were statements by people who were reliant upon what the applicant had told them. None could provide objective and contemporaneous assessments of what the applicant had experienced in Turkey.
I reject Ground 1
Ground 2 – apprehended bias
Under this ground, the applicant again challenges the Tribunal’s treatment of the supposedly supportive statements. At [54][28] the Tribunal dealt with those documents as follows:
The Tribunal has considered the supporting documents that the applicant submitted, including the two-page statement from his lawyer Mr Sunal, which echoes aspects of the applicant’s protection claims. This appears to have been prepared for use in this application, for instance in Mr Sunal’s claim that he told the applicant in 2007 that court action against his job dismissal would stand no chance in the courts due to his ‘different ethnic and religious background’. Similarly, Dr Pishyar noted that the applicant had appeared upset when talking about the July 2010 detention and mistreatment, and other friends have also referred to it. These accounts actually reinforce the Tribunal’s [concern] as to why, if the applicant had this experience in July 2010, and had the support of a lawyer in Turkey and family in Australia, he did not seek protection earlier. The supporting evidence, all prepared during the course of and for the purpose of this application, does not dispel the Tribunal’s concerns about the truthfulness of the applicant’s claim.
[28] CB 272
The applicant takes issue with the Tribunal’s reasoning about the value of particular statements at [62][29], [54][30], [64][31]and [16]-[17][32].
[29] CB 275
[30] CB 272
[31] CB 275
[32] CB 262-263
In my opinion, those reasons, while they might have been differently expressed, do not give rise to an apprehension that the presiding member may not have brought an impartial mind to bear upon the review. The statements indicate a disbelieving mind, but not a closed one.
As is noted in the Minister’s submissions, it will be a rare case where an apprehension of bias can be demonstrated by reference to the Tribunal’s reasons alone[33]. Counsel for the Minister also relied upon the Full Court’s decision in SZNSP in this regard.
[33] Minister for Immigration v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ
The Tribunal was plainly unpersuaded by the applicant’s supportive statements and afforded them little weight. That was, however, a matter of judgement for the Tribunal and it does not support an apprehension of bias[34].
[34] See SZNPG at [25], [37]
I reject Ground 2.
Ground 3 – illogicality
I accept the submissions of the Minister in relation to this ground.
Ground 3 claims that the Tribunal’s decision was illogical. The only basis for this assertion given in the applicant’s submissions is a suggestion that the Tribunal’s comment at [53][35] about his employer’s willingness to give the applicant unscheduled leave for a week might be unfounded given that it is said to be “probable” that the employer and supervisor are different people, and again a complaint about the Tribunal’s rejection of the applicant’s supporting evidence. The former complaint is little more than an argument with a very minor aspect of the Tribunal’s decision, and hardly establishes that the Tribunal’s decision is not one on which reasonable minds could differ, so illogicality is not established[36]. The latter complaint is, as already pointed out, contrary to relevant authority: SZNPG and SZNSP. This ground fails.
[35] CB 272
[36] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [78] per Heydon J, [130-131] per Crennan and Bell JJ; SZOOR v Minister for Immigration (2012) 202 FCR 1 (FC) at [15] per Rares J, [85] per McKerracher J
Ground 4 – complementary protection
The final ground claims that the Tribunal failed to comply with Direction 56. The Tribunal mentions the Direction at CB 283. The applicant’s submissions point to the definition of “degrading treatment or punishment”, which is defined in s.5 of the Migration Act, and mentioned by the Tribunal at CB 282. It is not clear how the Tribunal is said not to have complied with the Direction. Given its findings, the Tribunal was not satisfied that there was a real chance that the applicant would suffer any of the forms of “significant harm” as defined in s.36(2A) of the Migration Act[37], a conclusion that would appear at least open, if not inevitable. In any case no failure to comply with the Direction has been established, so this ground fails.
[37] CB 276 [73]-[75]
In oral argument, the applicant’s representative sought to develop an alternative proposition based upon an asserted intermingling of complementary protection and Refugees Convention criteria. I do not accept that contention.
The Tribunal’s reasoning in relation to complementary protection is at [74][38]:
Although the Tribunal accepts that the applicant may have experienced some discrimination in the past, as an Alevi Kurd, as a person whose Kocgiri tribe links prompts questions, the Tribunal does not accept that these involved significant harm as defined in s.36(2A) of the Act. The Tribunal accepts that the applicant may favour pro-Kurdish parties, and is perceived to do so, but it considers his level of interest in such matters to be only marginal. While Turkish authorities may have displayed some discrimination against the applicant in the past, as well as colleagues or other members of the public, the tribunal does not accept that they have in the past, or will in the future, be motivated to inflict significant harm on him for any reason at all.
[38] CB 276
In my opinion, the Tribunal’s assessment, while brief, was squarely based on the complementary protection criteria and, in particular, on the Tribunal’s view that the limited harm which it accepted had been experienced (and might in the future be experienced) by the applicant was not of such seriousness as to constitute “significant harm” for the purposes of s.36(2A) of the Migration Act.
I reject Ground 4.
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by jurisdictional error. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 April 2015
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