VAAX v Minister for Immigration - [2003] FMCA 443

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAAX v MINISTER FOR IMMIGRATION

[2003] FMCA 443

MIGRATION – Application for review of Refugee Review Tribunal decision – Whether there was a failure to take into account relevant considerations – Whether failure to deal with all component integers of Applicant’s claims – Jurisdictional error.

Migration Act 1958

Htun v TheMinister [2001] FCA 1802
Pojani v Minister for Immigration & Multicultural Affairs [2002] FCA 1283 Minister for Immigration & Multicultural & Indigenous Affairsv Yusuf (2001) 180 ALR 1
Craig v South Australia (1995) 184 CLR 163
Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 85
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 34
Kianfar v Minister for Immigration & Multicultural Affairs[2002] FCA 1754
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
SBAB v Minister for Immigration & Multicultural Affairs [2002] FCAFC 161
SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24

Applicant:

VAAX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ848 of 2002

Delivered on:

17 October 2003

Delivered at:

Parramatta via tele-conference to Melbourne

Hearing Date:

3 April 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr C. Horan

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr W. Mosely

Solicitors for the Respondent:

Australian Government Solicitor

THE COURT DECLARES:

That the decision of the Refugee Review Tribunal made on 25 January 2002 is invalid and of no effect.

THE COURT ORDERS:

That the Minister is prohibited from acting in reliance upon the decision of the Tribunal.
That the decision of the Tribunal is set aside.
That the matter is remitted to the Tribunal for re-determination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ848 of 2002

VAAX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

The first applicant is a citizen of Turkey of the Alevi religion born on 25 September 1977 who arrived in Australia on 29 April 2001. The second applicant is her husband who is also a citizen of Turkey born on 10 August 1974 who arrived in Australia on 16 April 2001. On

30 May 2001 each of the applicants applied for a protection visa. They made separate claims and provided statutory declarations and other material in support of their claims. They claimed to fear persecution for reasons of their actual and imputed political opinions in consequence of their involvement with the Halkan Demokrasi Partisi or Peoples Democratic Party (“HADEP”), their participation in demonstrations against proposed prison changes (the introduction of F type prison) and association with Kurdish nationalist and leftist political causes and organisations and for reasons of the applicant wife’s Alevi religious beliefs.
On 10 September 2001 a delegate of the respondent refused to grant protection visas to the applicants. On 21 September 2001 the applicants sought review of that decision by the Refugee Review Tribunal (the Tribunal). On 25 January 2002 the Tribunal affirmed the delegate’s decision. This is an application for review of that Tribunal decision.

The Tribunal Decision

The applicants contended that there were a number of ways in which the Tribunal erred. In order to consider these claims it is necessary to outline the applicants’ claims and the findings of the Tribunal. Essentially the applicants claim to fear persecution in Turkey on the basis of their political opinion and religion. The first applicant (the wife) is the daughter of left-wing political activists who were members of the Communist Party of Turkey (the TKP or TKEP). Her claim that her parents had been arrested and mistreated on several occasions because of their political beliefs was accepted by the Tribunal.
The first applicant also claimed to have been involved with the TKEP and claimed that she was arrested when putting up posters or attending demonstrations organised by the TKEP in 1992 and 1993. The Tribunal accepted that her parents had an historical connection with the TKEP and encountered difficulties for those reasons in the 1970’s and that she and her mother were detained and mistreated in the mid-1980’s by members of the MHP (then an extremely violent right-wing group) because of her father’s political opinions. However it concluded that she had exaggerated her own connection with the TKEP and did not accept that she was arrested and detained in 1992 or detained in 1993 because of TKEP activities. The Tribunal took into account the fact that she had been issued with travel documents without attracting adverse attention as could have been expected if she were considered to be a dissident and that she had travelled and felt secure enough to return to Turkey after a short visit to Spain in 2000. The Tribunal also had regard to independent country in relation to restrictions on the issue of passports to persons suspected of questionable political background in Turkey. Further the applicant’s responses to the delegate’s questions (to which the Tribunal member had listened on tape) and some statements that she made at the Tribunal hearing indicated that she had little knowledge of the TKEP and was unaware of its legality. She had also changed her evidence from a claim that she was an active member to a claim that she was not a member but merely joined in activities. The Tribunal did not find it plausible that her parents would put her security at risk when she was very young and vulnerable by permitting her to carry out tasks for a banned political organisation that had the potential for extremely serious sanctions. It noted that members of such banned leftist parties had been given short shrift by Turkish authorities according to independent information. The Tribunal concluded that the applicant had not been perceived in the past to be an active member of the TKEP and had only a peripheral family connection of no on-going adverse interests to Turkish authorities and that such connection did not raise a real chance that she faced persecution by reason of her claimed affiliation with TKEP for that reason alone or in combination with other considerations. Again there is no issue taken with the Tribunal’s treatment of this particular aspect of the applicant’s claims.
She is also of the Alevi religious faith and claimed to have experienced discrimination on account of her religion, including having been detained overnight in 1990 and arrested with her husband when attending an Alevi funeral in 1999 and insulted before their release. The Tribunal accepted these claims. However it considered that the harm encountered in 1999 was not persecutory and that the applicants did not face a real chance of persecution for reason of the wife’s Alevi religion. In reaching this conclusion the Tribunal had regard to independent country information indicating that there had been a marked improvement in the situation of Alevis in Turkey in recent times and that the applicant could now practice the Alevi faith and culture without undue hindrance if she so desired. The applicants’ challenge to the Tribunal reasons for decision largely did not touch upon the finding in relation to religion.
Of more significance for present purposes are the other claims of the applicants that they face persecution for reason of actual and imputed political opinions. The Tribunal accepted that they have subjective fears that they face such persecution. The applicant wife claimed that in 1995 she joined the Freedom and Democracy Party (the ODP) and also attended HADEP meetings. HADEP is a Kurdish-based party and the applicant told the Tribunal that she identified with Kurds because they, like Alevis, were treated as second-class citizens. Neither she nor her husband claimed to be of Kurdish background. She claimed that she was arrested, beaten and sexually assaulted and detained for two days at May Day celebrations in 1995. The Tribunal accepted that it was plausible that the applicant was arrested and detained in 1995 because of her connection with ODP after attending a May Day demonstration despite the fact that her knowledge of ODP personalities was minimal. However she remained in Turkey for the following five years. This was said to be an indication that she did not fear that she was at risk because of an affiliation with the ODP. The Tribunal noted that the 1999 election was won by a coalition led by a leftist party, that ODP is a recognised leftist political party in Turkey and that there was nothing in country information considered by the Tribunal to suggest that ODP members were targeted for harassment. In those circumstances while the Tribunal found that the applicant was mistreated as she claimed in 1995, it was not satisfied that she was ever a leading activist with the ODP, that she maintained contact with that party or that Turkish authorities had any on-going interest in her for reason of her ODP affiliations. It concluded that there was not a real risk that she faced persecution by reason of her affiliation with the ODP for that reason alone or in combination with other considerations.
The first applicant claimed that her involvement with HADEP increased in 1996 and that she formally joined the party in 1999 recruiting others and educating people in HADEP’s political beliefs. She stated that her uncle was a HADEP candidate who had arranged her departure from Turkey.
In particular she stated that she attended a HADEP demonstration in 1997, that she and her future husband met at a HADEP meeting later that year and that they both joined HADEP in September 1999. She provided a ‘membership application form’ for that party that the Tribunal considered ‘suggests she applied for membership after 15 August 2000 but she and her husband stated that was an approval of an application they had made the previous year’.
The applicants also claimed that in August 2000 they demonstrated against F-type prisons outside a prison. They were taken to the police station, the wife was sexually assaulted and the husband hit with a baton when he tried to intervene. The wife was also hit with a baton. The police released them because she was seriously injured. She had surgery in a private hospital.
The applicants married on 16 October 2000 and went to Spain from 11 October 2000 to 16 October 2000 for their honeymoon. At the hearing the Tribunal asked them why they had not sought asylum in Spain given that they had been seriously assaulted and hospitalised a short time earlier. The applicant wife said that at that stage she had not signed the confession she claimed to have signed in January 2001 and was not wanted by the police. The husband told the Tribunal that they were not thinking about it when they were in Spain and then described the incidents of January 2001.
The applicant’s claimed that in January 2001 they again demonstrated against F-type prisons outside the same prison. They were again detained. They were interrogated, pushed around, verbally abused and released after 24 hours only after signing statements in which they admitted opposing government policy and having been at the demonstration and causing a disturbance. They were told a further statement would be needed and that they would be charged, taken to Court and ‘probably be put in jail forever.’ They claimed that it was then that they realised they should escape Turkey. The husband left on 15 April 2001 and the wife followed on 28 April 2001. The wife claimed to have received a fax from her father in June 2001 purporting to be a copy of a letter from the officer in charge of a police station in Istanbul directing that she attend to make a statement in relation to her attendance at the F-type prison demonstration in January 2001. She told the Tribunal that this was a warrant for her arrest but that her father had destroyed the original after he sent the fax so that she could not obtain it.
She claimed that she and family members had been human rights and political activists and were prominent in HADEP and Alevi cultural and political organisations, that she and her husband have been politically active and were known to the authorities and that if she returned to Turkey she feared she would be imprisoned and tortured for reasons of her religion and political activities and opinions.
The husband claimed that he had developed left-wing views and attended political meetings and was detained and beaten on several occasions between 1988 and 2001, had fled to Azerbaijan in 1995, returned when his father was ill, undertaken military service and was abused by right-wing commanders and that in mid-1999 he was burned with cigarettes by police after he was detained for distributing pamphlets. He agreed with his wife’s accounts of the experiences they had in common after they met. He had not received a letter or warrant from the police like his wife. He did not live at his parents’ residence where he was registered but rather with his spouse’s parents and it was possible that such a letter was sent but did not reach him. He claimed that if he and his wife had to return to Turkey they would continue to pursue their political aims actively although they had not done so in Melbourne and did not know if HADEP had a representative in that city.
The applicants also provided information from various government and non-government sources that referred to the human rights situation in Turkey including a report from a counsellor stating that both the applicants had been counselled and that each suffered symptoms of post-traumatic stress disorder most likely as a consequence of torture.
The Tribunal found that the applicant wife’s knowledge of HADEP and its role in recent election campaigns was limited and inaccurate. Further the forms that she provided stated that she made an application for membership of HADEP in August 2000. At the hearing she and her husband stated that the date on the application form was the date of approval but that she had applied for membership in 1999. The Tribunal did not believe that this was what was shown by the written documents and was satisfied that the confusion had arisen because the applicant and her spouse had sought to bolster their claims to be HADEP activists by fabricating documents that purported to show a formal connection with that group. The Tribunal accepted that the applicant’s uncle became an office holder of HADEP in 1994 but did not accept that the applicant and her spouse became members although it did accept that they supported some of its policies.
The Tribunal also accepted that the applicant and her husband attended ‘some demonstrations’ against proposed prison reforms. It did not accept, however, that they were detained and tortured. It considered it implausible that such mistreatment would not have been reported to various organisations that have an interest in such incidents including parties with which the applicants claimed a close connection (including HADEP itself and the ODP). Further the Tribunal considered that if the applicants had been tortured as they claimed it was not credible that they would have arranged their honeymoon (including exit documentation) during the following month and then returned from Spain after their honeymoon to the place where they claimed to have been tortured. This conduct was found to be at odds with the claim that they were genuinely in fear of persecution for reason of their political opinions. Further their failure to seek protection in Spain was seen as a strong indication that they did not need such protection. According to the Tribunal their explanations, that they did not think of it or had not signed confessions, did not sit comfortably with claims that they faced persecution merely for expressing anti-Government opinions. The Tribunal found that the explanations were inadequate and concluded that the applicants were willing to return to Turkey from Spain because they were not genuinely in fear of persecution. This was said to be consistent with the husband previously returning from Azerbaijan in 1995 despite his claim that he had rebelled and engaged in dissident activities since his early school days.
The Tribunal found it plausible that the applicant husband sympathised with some of the policies of HADEP but did not accept that he was a member of that group although it accepted that he had filled in an application to join it. It also found that he attended some rallies against proposed changes in the prison system but did not accept that he was tortured given his willingness to return from Spain. The Tribunal also accepted that the applicant supported some of HADEP’s policies.
The Tribunal referred to independent information in relation to the treatment of HADEP supporters, concluding that while HADEP reflected some support for the terrorist organisation PKK and some members had been harassed for that reason, it remained a legal political party able to stand candidates at recent elections. There was no evidence that its members or supporters were systematically subjected to harm from the authorities unless they were found to be directly supporting PKK efforts to destabilise the government. The Tribunal concluded that that had not been the case with either of the applicants ‘whose recent support has been to attend demonstrations in opposition to proposed amendments to the prison system’. While the applicant wife supported freedom for Kurds to practice their culture and religion, some of those desires had been met according to independent information. Further the applicants were not Kurdish and did not come from areas of suspected PKK activities. Indeed the Tribunal accepted that the applicant wife was released after her arrest at a Kurdish New Year celebration in 1994 because she was not Kurdish. The Tribunal also found that the applicants had supported some popular HADEP causes but rejected the violence of the PKK.
The Tribunal was not satisfied that the applicants were members of HADEP let alone leaders or activists of the party who might be suspected of promoting PKK terrorism. Nor was it satisfied that ordinary supporters of HADEP face a real chance of persecution for reason of their political opinions. It concluded that the applicants did not face a real chance of persecution for reason of their affiliation with HADEP either for that reason alone or in combination with any other reason.
In a summary the Tribunal accepted that the applicant wife was Alevi, that her parents had been connected with TKEP more than 20 years ago and that she had been a supporter of the ODP and HADEP. It accepted she had encountered ‘some mistreatment’ for those reasons in the past but found that she had exaggerated such mistreatment, as well as her connections with political groups. It also accepted that she had symptoms of post traumatic stress disorder but was not satisfied that her symptoms had arisen for all of the reasons she had expressed to either the Tribunal or to her counsellor. It was not satisfied that the applicant wife faced a real chance of persecution for reason of being Alevi or for a political opinion that she held or that might be imputed to her ‘because of her affiliations with the TKEP, ODP or HADEP or for any other Convention reason.’
The Tribunal stated that in arriving at that conclusion it had considered the warrant or letter that directed the wife to attend the police station in regard to a demonstration she had attended. It suggested that it was odd that the police would express no interest in her attendance at a January 2001 protest until after she left the country in April 2001 and also odd that her father would destroy the original arrest warrant but risk sending a copy. The Tribunal concluded that it seemed most likely that the document was fabricated. It went on to say that even if it was wrong, the letter merely directed that the applicant attend the police and make a statement. The Tribunal was not satisfied that ‘in the absence of other evidence, it is evidence that she faces persecution for a Convention reason and gave it insufficient weight to alter its conclusion that the wife did not face a real chance of persecution for a Convention reason’.

The Tribunal also accepted that the applicant husband had objections to past Turkish governments and had been a supporter of HADEP. It found that while he was able to offer more information about the group than his spouse he was still relatively ignorant of some key issues that the Tribunal would have expected to be within the knowledge of a member. Further, ‘At odds with his claimed fear of persecution he also returned to his place of alleged torture after his honeymoon in Spain.’ Like his spouse, he had no difficulty in crossing the Turkish border without difficulty using documents that clearly identified him, when available information indicated that Turkish authorities were prone to identifying and intercepting dissidents attempting to leave the country. The Tribunal concluded that neither the applicant nor her spouse faced a real chance of persecution should they return to Turkey notwithstanding that one relative was an Alevi spokesman and another a prominent member of HADEP and that their fears of persecution were not well-founded.

This Application

The applicant filed an amended application on 28 June 2002 in which seven grounds for review were identified. In oral submissions Counsel for the applicant indicated that the only grounds relied on were paragraph one (of which paragraph two was an aspect) three, four and five. These grounds are as follows:
i)The Tribunal acted without or in excess of jurisdiction and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material and as an aspect of that that, failed to review and consider the application for the purposes of ss.47, 65 and 414 of the Migration Act 1958;
ii)The decision was based on a finding of a particular fact that did not exist and for which there was no evidence;
iii)The decision was so unreasonable that no reasonable decision-maker could have made it; and,
iv)The applicants were denied natural justice.
The applicants claimed that the Tribunal failed to address and deal with essential elements of their claims raised by the material and evidence before it and that such failure constituted a jurisdictional error (see Htun v TheMinister [2001] FCA 1802, Pojani VM [2002] FCA 1283, Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural & Indigenous Affairsv Yusuf (2001) 180 ALR 1) in that the Tribunal did not deal with all the integers of their claims. Counsel for the applicant submitted that the question was, as Madgwick J said in Pojani v The Minister [2002] FCA 1283 at [22]:
“Whether a failure to refer to some evidence as to a particular matter or a failure to deal at all with some factual matter, amounts to a failure to deal with one of the necessary ingredients of the claim.”
The applicants submitted that the Tribunal failed to address and deal with essential elements of their claims raised by the material and evidence before it being (1) their arrest and detention for participating in a demonstration against ‘F-type’ prisons in January 2001 and (2) that they signed, under duress, statements admitting that they had participated in such a demonstration and that they opposed government policy. Furthermore, it was claimed that the Tribunal did not address or deal with the question of whether either of them faced a real chance of persecution by reason of actual or imputed political opinion arising from their participation in the January 2001 demonstration and/or their signing of the statements or by reason of their membership of a particular social group being persons opposed to proposed reforms involving the introduction of ‘F-type’ prisons or persons who participate in demonstrations against such reforms. It was claimed that the Tribunal really only considered whether or not membership of HADEP gave rise to the chance of persecution and did not separately look at whether participation in demonstrations opposing prison reforms would give rise to a real chance over and above membership of or support for HADEP.
The Tribunal was conscious that a claim was made in relation to the January 2001 demonstration and its aftermath. In its description of the applicants’ case it summarised the claims in relation to attendance at demonstrations in both August 2000 and January 2001. In particular, after describing the August 2000 claims and the honeymoon in Spain and the applicants’ evidence as to why they did not seek asylum at that stage, it stated that the applicants claimed:
“In January 2001 they demonstrated again outside the same prison. They were again detained and forced to sign documents that admitted opposing government policy and admitting having caused a disturbance. They were threatened with Court action and realised they should escape. Her husband left on 15 April 2001 and the applicant followed a week later. The applicant received a fax from her father in June 2001 that purports to be a copy of a letter from the OIC of the police station in Kartal (in Instanbul), directing she attend to make a statement in relation to her attendance at the F-type prison in January. She told the Tribunal this is a warrant for her arrest. Her father destroyed the original after he had sent the fax, so she cannot obtain it”.
The Tribunal also referred to the wife’s claim that she had not sought asylum in Spain because ‘she had not signed the document at that stage (that is a confession of sorts she claims to have signed the following January) and was not wanted.’ This summary of the claims in the first part of the Tribunal decision is consistent with part of the claims made by the first applicant in her statutory declaration, although she also claimed that when they were arrested in January 2001 they were interrogated, “pushed around” and verbally abused, told they would be required to provide a further statement, that they would be charged and probably gaoled forever. In the Tribunal hearing she also told the Tribunal that on that occasion she had been held in custody for a day at the police station. The applicant husband told the Tribunal that they were asked to sign a statement and told by the police that they would have to go to Court and that they would be charged.
The applicants claim that their protests against F-type prisons and the second arrest and signing of the forced confession was central to their decision to leave Turkey. In the statutory declaration accompanying her original application the applicant wife stated not only that the police had said they would need a further statement and that they were going to be charged and taken to Court and would probably be in gaol forever but also that:
“It was then we realised there was no life in Turkey for us and that if we stayed we would die under the police baton or in prison. We decided to leave everything we had and run away from Turkey.” (para 30)
In that declaration she claimed to fear harm because of being Alevi and because she and her husband were “supporters of human rights and of left-wing beliefs” and in addition because she came from a high profile family prominently in HADEP and Alevi cultural organisations. Such claims reflect the emphasis on claimed human rights and left-wing activities outlined in her statement. Similarly the husband confirmed the ‘incidents’ described in paragraphs 26 to 30 of his wife’s statement and that “as a result of those experiences” (which included the claims about the impact of the January 2001 experiences) “we were forced to leave Turkey”.
In its reasons for decision the Tribunal accepted that both the husband and wife ‘attended some demonstrations against proposed prison reform’. It did not accept that they were ‘detained and tortured’ on the basis that it was implausible that such mistreatment would not have been reported to various organisations that have an interest in such incidents including HADEP. The Tribunal found that if the applicants had been tortured as claimed it was not credible that they would have gone on a honeymoon and then returned to the place where they claimed to have been tortured. The respondent argues that this indicates that the Tribunal accepted the applicants’ participation in the demonstrations but that as the Tribunal did not accept that they had been detained by the police it followed that it was not required to consider or make a finding in relation to the claim that they were detained and forced to sign documents (see Gleeson CJ and McHugh J in Abebe v Commwealth of Australia (1999) 162 ALR 1 at 85). It was submitted that this was consistent with the Tribunal mention at other places in the decision of the couple attending rallies and demonstrations in relation to changes in the prison system, (for example, the Tribunal’s consideration of the warrant that the applicant wife claimed to have received from her father in June 2001 and the findings in that respect).
However, when one considers the applicants claims closely it is clear that the claim of detention and torture is a claim that relates to the events of August 2000. The applicant wife claimed that on that occasion she was so badly injured that she needed surgery and that her husband was hit when he tried to intervene. However the claims that the applicants make in relation to January 2001 are of detention, interrogation and being pushed around and verbally abused but not of torture. Indeed in paragraph 29 of her statutory declaration the wife claims that they signed statements because they were afraid of being severely beaten as they had been the last time.
I am satisfied that the applicants’ evidence and the material before the Tribunal raised claims of a fear of persecution for reasons of actual or imputed political opinion not only by reason of association with political parties but also of being opposed to the government arising from the applicants’ participation in demonstrations against certain prison reforms, their signing of the confession statements and the alleged threats of charges and imprisonment. This is consistent with the applicant wife’s claim to fear harm as a supporter of human rights and of left wing beliefs. The statutory declarations of the applicants and the material provided in support of their application make it clear that their claim in this respect was not based simply upon membership of HADEP or upon activities engaged in as supporters of HADEP. Furthermore it was the events of January 2001 that they claim precipitated their realisation that they needed to leave Turkey. It is important that what they claim occurred in January 2001 was not merely participation in a demonstration but nor was it detention and torture. Rather it was detention, interrogation and being forced to sign statements and being told that they would be charged and probably sent to gaol indefinitely. These aspects of the applicants’ claims were distinct from their fear of persecution for reasons of their involvement in HADEP or with any other political party. Indeed, they were the main basis for their original claims. As the wife said in the Tribunal hearing (when asked whether she would be arrested at the airport because she was Alevi) it was not because of being Alevi but because she had been asked to sign a document on 10 January 2001 and what it contained and that this was after the second demonstration against F-type prisons with the HADEP party. She did explain that she became involved in demonstrating about F-type prisons because she was an active member of HADEP and that it was part of their political activities to protest such types of incidents. However it is apparent from the concluding part of her statutory declaration that she claimed to fear persecution primarily as an Alevi, a supporter of human rights and of left-wing beliefs.
The participation and consequences of participation in demonstrations raise a chance of future persecution for reason of political opinion distinct from any chance of future persecution for reason of political opinion arising solely from membership of or support for HADEP. The claims that they signed statements admitting to involvement in anti-government activity and to holding anti-government views may distinguish the applicants from ‘ordinary supporters’ of HADEP and give rise to reprisals against them. This was not addressed. The Tribunal did not reject the claims that the applicants were forced to sign statements and told they would be charged but made no findings about such claims and the possible consequences. It was necessary for the Tribunal to consider whether the claimed signing of the statements was in itself capable of giving rise to a real chance of persecution. In order to properly consider and deal with these elements of the applicants’ claims it would have been necessary for the Tribunal to make findings of fact not only as to whether or not the applicants had participated in demonstrations in January 2001 but also as to whether they had been arrested and detained (as distinct from arrested and tortured) and forced to sign statements as claimed. The Tribunal rejection of the applicants’ evidence in relation to the claimed warrant does not deal with this aspect of their claims. Indeed the Tribunal finding that there was an absence of other evidence confirms that it failed to make findings on whether or not the applicants were detained in January 2001 and forced to sign confessions and threatened with Court action.
While the Tribunal did conclude generally that it was not satisfied that the applicant wife faced a real chance of persecution for reason of political opinion that she held or that might be imputed to her not only because of her affiliations with the TKEP, ODP or HADEP but also for any other Convention reason it did not address the applicants’ claims as to what happened to them at the police station after the demonstration of January 2001 despite the fact that this was said by the applicants to be the incident that precipitated their fear of persecution and departure from Turkey.
As a consequence, the Tribunal has failed to address a key aspect of the applicants’ claims which was said to be an immediate cause of both their decision to leave Turkey and their fear of persecution if required to return. The Tribunal failed to ask whether, irrespective of party affiliation, a person who is detained and forced to admit to anti-government activity in respect of F-type prisons, faces a real chance of persecution. As it failed to ask this question, the Tribunal failed to consider country information provided by the applicants as to the position of opponents of the proposed prison reforms.
As Allsop J stated in Htun v MIMA [2001] FCA 1802 at [42]:
“The requirement to review the decision under S414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 and MIMA v Yusuf (2001) 180 ALR 1. See also Sellamuthu v MIMA [1999] FCR 247 at 18, 19, 21 and 50. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg SS54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the ‘claims’ of the applicant, eg 866.211, make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
As in Htun the claim in this case was based on more than one foundation – HADEP and other political party membership or association, the wife being Alevi and actual or imputed political opinion resulting from participation in demonstrations and signing of confessions. The Tribunal did not deal with all the bases of the applicants’ claims based on imputed political opinion. There was not merely a failure merely to attend to evidence, it was rather a failure to deal with one part of the claim for asylum on the basis of actual or imputed political opinion.
This is not a situation where the Tribunal’s finding that the applicants were not detained and tortured as claimed is, as in Abebe v Commonwealth of Australia (1999) 162 ALR 1, such that it was not necessary for the Tribunal to go on to find what had occurred thereafter. The finding in relation to detention and torture (and it is important that it is a finding of detention and not or torture) in this context could only be a finding in relation to the claims based on the August 2000 demonstrations. This is clear not only from the language used but also from the Tribunal’s reliance in reaching that conclusion on the view it took of the lack of credibility in the claim that the applicants would thereafter have gone on honeymoon to Spain and return to the place “they claimed to have been tortured”. In fact the applicants’ evidence is that at this stage they were not in fear of persecution for reason of their political opinions and that it was only after the events of January 2001 that they held such fears.
In her statutory declaration the wife (with whom the applicant husband agreed) attested that it was after the events of January 2001 that they realised there was no life in Turkey for them and if they stayed they would die. It was then that they decided to leave. It is also clear from her explanation of why they went back to Turkey after going to Spain for their honeymoon in October 2000 that at that stage they had not signed any papers (this being clearly a reference to the claimed confessions). Similarly when the Tribunal asked the applicant husband why he did not apply for refugee status when he went to Spain he indicated that they were not thinking about it at the time and immediately went on to say that in January 2001 they were again arrested and to describe what had occurred at the police station. Furthermore, while it is open to the Tribunal to reject evidence (such as the warrant) it is also clear that, contrary to the Tribunal statement that there was no other evidence to support the claim that the applicants faced persecution for a Convention reason, there were the claims about the events of January 2001 which were not dealt with by the Tribunal.
As Mason J indicated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 34 at [39] the ground of failure to take into account relevant considerations can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. The ‘component integers’ of the claims are, as Allsop J indicated in Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 at [42], considerations made mandatorily relevant by the Migration Act in the sense discussed in Peko-Wallsend and Yusuf. The Tribunal must consider whether the applicants come within Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (see ss.65 and 36(2)(a) of the Migration Act 1958). In determining if the applicants have a well-founded fear of persecution for reason of political opinion it is necessary to consider the bases on which such claims are made. On balance I am satisfied that in failing to deal with the claims as to the events of January 2001 (beyond the finding that the applicants attended some demonstrations) the Tribunal failed to deal with a ‘component integer’ or part of the claims of the applicants to be refugees for reason of their imputed political opinion. As in Htun, I am satisfied there is not merely errant fact finding or a failure to attend to evidence. The Tribunal failed to deal with a basis for their claim based on imputed political opinion apart from membership or support for particular political associations. This claim was conceptually quite distinct from the other claims. It cannot be said that the Tribunal findings and reasons on other elements of the claim necessitated rejection of the claim so far as it depended on this issue. (See Pojani v Minister for Immigration & Multicultural Affairs [2002] FCA 1283 at [30] and Kianfar v Minister for Immigration & Multicultural Affairs[2002] FCA 1754). This is not a case where the Tribunal made a finding at a higher level of generality than considering the question of specific incidents. The findings about attendance at demonstrations and torture do not cover the claims about January 2001. Rather, a substantial claim has not been addressed as such. Section 414 of the Act requires the Tribunal to consider the claim of the applicants. As Allsop J said in Htun:
“To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.” (at [42]).
There has not simply been a failure by the Tribunal to deal with part of the competing body of evidence or to find a relevant fact but rather a failure “to address and deal with how the claim was put to it, at least in part” (see Allsop J in Htun at [42] and in Paul v MIMA [2001] FCA 1196 at [79]).
By failing to deal with the aspects of the applicants’ claims relating to the events of January 2001 the Tribunal failed to take into account relevant considerations in such a way as to have affected the exercise of its powers. It thus fell into jurisdictional error (Yusuf at [82] – [84], SBAB v MIMA[2002] FCAFC 161 at [30] and SAAD v MIMIA [2003] FCAFC 65). The failure to complete the exercise of jurisdiction is an error of law going to the exercise of the Tribunal’s powers (Yusuf). It is not an error ‘within jurisdiction’. The error materially impinged on the Tribunal’s rejection of a well-founded fear as it did not consider fully the way in which the applicants put their claims. As there was a failure to complete the exercise of jurisdiction, the decision is not a privative clause decision and is not protected by s.474 of the Act (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [76]).

This conclusion makes it unnecessary to address either the alternative basis for the claim that the Tribunal failed to deal with essential elements of the claims based on membership of a particular social group or the other grounds relied upon. A jurisdictional error which affects the exercise of the Tribunal’s powers has been established.
It may be that a consideration of the applicants’ claims to fear persecution based for reasons political opinion based on the vents of January 2001 could have led to a different result. The Tribunal may have taken a different view of the kind of harm to which the applicants were exposed had it properly considered this integer of their claims (see Madgwick J in Pojani at [35]). Accordingly the prerogative relief sought should be granted and the matter remitted to the Tribunal for reconsideration according to law.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: