VGAL v Minister for Immigration - [2004] FMCA 219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VGAL v MINISTER FOR IMMIGRATION

[2004] FMCA 219

MIGRATION – Appeal from the Refugee Review Tribunal – refusal of a protection visa – whether Tribunal erred in law – interpretation of “well founded fear of persecution” and “persecution” – real chance of persecution - taking into account relevant matters – reasonableness of relocating to a different country – no error of law.

Migration Act 1958 (Cth), ss.36, 91R, 474, Part 7, Part 8
Federal Court Rules 1979 (Cth), Order 35, Rule 10
Judiciary Act 1903 (Cth), s.39B

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v South Australia (1995) 184 CLR 163
Gamaethige v Minister for Immigration and Multicultural Affairs (2001) FCA 565
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FLR 411
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant:

VGAL of 2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1030 of 2002

Delivered on:

15 April 2004

Delivered at:

Melbourne

Hearing date:

7 April 2002

Judgment of:

Connolly FM

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms Moore

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

THAT the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1030 of 2002

VGAL OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment arises from an application filed by the applicant on

23 August 2002 seeking judicial review of the decision of the Refugee Review Tribunal on 8 July 2002 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class XA) visa.

The history

The applicant, accompanied by his wife and two children, arrived in Australia on 3 June 2001. They are citizens of Turkey. On 17 July 2001 they lodged applications for protection class (XA) visas with the Department of Immigration and Multicultural Affairs. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the applicant husband made specific claims under the Refugees Convention and for these reasons the Refugee Review Tribunal (“the Tribunal”) referred to him as the applicant.
The applicant is a male citizen of Turkey; he is an ethnic Kurd of Alevi religion. He claims that he will not be able to return to Northern Cyprus (Turkish Cyprus), or alternatively mainland Turkey, due to his ethnicity and his religion. Additionally, the applicant asserts that he fears persecution due to his involvement with left-wing political groups and his failure to attend reserve military service for two days; the applicant claims that he did not meet his service duties as he was detained for three days at this time.
On 23 January 2002, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection (XA) visa (sub-classes 785 and 866); the applicant applied to the Tribunal for review of that decision on 12 February 2002. In the decision made by the Tribunal on 8 July 2002, the Tribunal affirmed the decision of the delegate not to grant the protection (class XA) visas. The Tribunal found that the applicant’s claimed fears of persecution were not well-founded and therefore he was not a person to whom Australia had protection obligations; consequently the applicant did not satisfy the criterion for the purposes of the grant of a protection (class XA) visa. The Tribunal also held that the applicant’s spouse and children were not entitled to the grant of protection (class XA) visas.
On 23 August 2002, the applicant lodged an application in the Federal Court of Australia, being V545 of 2002, pursuant to s.39B of the Judiciary Act 1903 (Cth) and Parts 7 and 8 of the Migration Act 1958 (Cth) (“the Migration Act”), for review of the Tribunal’s decision.
On 26 September 2002, by order of Finkelstein J of the Federal Court of Australia, the matter was transferred to the Federal Magistrates Court pursuant to Order 35 Rule 10 of the Federal Court Rules 1979 (Cth). On 15 October 2002 a court book was filed.
On 20 January 2003, the applicant lodged an amended application, claiming that the Tribunal’s decision was affected by an error of law. Specifically, the applicant stated that the Tribunal:
a)failed to correctly interpret the terms “well-founded fear of persecution” and “persecution”;
b)failed to consider relevant matters in determining whether the applicant had a well-founded fear of persecution;
c)reached an unreasonable conclusion in relation to the applicant’s failure to report for reserve military service and his ability to leave the country; and
d)erred in reaching the conclusion that the applicant could reasonably relocate to mainland Turkey.
The applicant’s contentions of fact and law were filed in the Federal Magistrates Court on 20 January 2003. The respondent’s contentions of fact and law were filed on 13 March 2003. On 4 April 2003, the applicant’s supplementary contentions of fact and law were filed. The applicant’s contentions were adjusted in light of the High Court decisions in ReMinister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

The applicant’s case

The applicant’s claims are conveniently and accurately summarised by Counsel for the applicant in his contentions, paragraphs 6 to 12, as follows:
a)The applicant’s claims before the Tribunal were set out in his initial applicant to the respondent, later submissions, and in his evidence at the hearing conducted by the Tribunal. The applicant’s initial statement, dated 16 July 2001, provides a convenient outline of his claims (CB 241-245).
b)Briefly, the applicant’s claims before the Tribunal were that he was a national of the Turkish Republic of Northern Cyprus, a Kurd by ethnic background and an Alevi by religion. After harassment and persecution because of family involvement in leftist politics, the family had left mainland Turkey and gone to Northern Cyprus. While there he had become involved both in an Alevi cultural organisation collecting money for it, and had himself also become involved in leftist politics. As a result, he had on occasions suffered detention, notably in 1996, in 2000, and in 2001.
c)The applicant claimed to have been detained and bashed in 1996 in connection with his involvement with leftist politics, and detained and bashed in 2000 in connection with his political support for a left wing journalist campaigning election. He claimed to have suffered detention and torture for three days in March 2001 after a raid on a friend’s house at the time of Kurdish New Year, as noted below. (CB 241-243.1)
d)Also, the applicant claimed that on a number of occasions his house was raided and that he was under surveillance by the secret police (CB 242, paras 12 –13).
e)The applicant claimed also that he had been served with a notice to attend for military service for some days in May 2001. He had several times performed this kind of reserve military service, and had suffered ill-treatment because he was Kurdish, e.g. being ordered to stand in the sun for long periods of time, or sent to do sentry duty very near the Greek Cypriot border. He knew of two people who had been shot dead by their Turkish officers, and another who had been injured in the same way, on such duty, the Greeks being blamed.
f)After receiving the notice for this service, in March 2001, at the time of the Kurdish New Year celebrations, the applicant was present at a neighbour’s house when the house was raided. He claimed that after this he and his friends were detained and that he was held and tortured for 3 days and then released without charge. In the light of this he decided to leave and seek asylum. He left, travelling to mainland Turkey in order to obtain a passport at a place where he was not well known, returned to Cyprus and then travelled from Cyprus via mainland Turkey to Australia. (CB 243.9 - 244.9)
g)The applicant claimed that he was able to leave on 2 June 2001, although not having reported for his military service on 23 – 25 May 2001, because the Cypriot military system was separate from the mainland, and it would also take some time, of the order of two weeks, before his default would be noted at departure points. He verified prior to his departure, through political contacts, that his name was not yet at the airport on the list of military defaulters.

The Tribunal’s decision

The Tribunal has set out its decision and reasons for its decision in writing (CB 3 - 29); an accurate summation is contained in the respondent’s contentions at paragraphs 19 to 21 inclusive and paragraph 23 as follows:
a)The RRT accepted, or was satisfied, that:
i)the applicant was a Turkish national, a Kurd and an Alevi who had lived in Northern Cyprus since 1988 (CB 28);
ii)the applicant’s father and uncles were involved in left-wing movements in the 1970’s and 1980’s and that as a consequence of harassment over that participation, the applicant’s family moved to Northern Cyprus (CB 12);
iii)the applicant was detained and slapped around on one occasion, several years before he went to Cyprus, but was not otherwise personally harassed on the mainland (CB 12);
iv)the Turkish authorities had no adverse interest in the applicant when he went to Cyprus (CB 12);
v)the actions of other family members did not provoke an adverse interest in the applicant at the time he went to Cyprus and there was not a real chance they would incite any interest in the reasonably foreseeable future, should he return (CB 12);
vi)Turkish authorities in Cyprus can act oppressively (CB 14);
vii)the applicant worked for the Alevi cultural organisation, Haci Bektas, for a period (CB 16); and
viii)there were attacks directed that the Avrupa newspaper and those who produced it (CB 16).
b)The RRT found or concluded that:
i)the applicant was not detained and tortured following a raid in March 2001 and that his claim was contrived (CB 14);
ii)the applicant was not detained and mistreated in 1996 because of claimed support of the political party YKP (New Cyprus Party) (CB 14);
iii)the applicant had little, if any, connection with any political party in Cyprus but that whatever his political affiliations, they had not resulted in persecution in the past and he was not at real risk of persecution (CB 14);
iv)Cyprus authorities did not specifically target the applicant for persecution, either for reasons specific to him or because he belonged to a group whose members were of adverse interest to them (CB 14 - 15);
v)being under surveillance with many other citizens or being questioned by security officials in the street was not persecutory of the applicant and the applicant did not face a real chance of persecution (CB 15);
vi)the applicant was not arrested as a follower of Senar Levent (CB 16);
vii)the applicant was not an active member of any political group nor was he detained and mistreated for his political opinions and actions (CB 16);
viii)the applicant did not face a real chance of persecution for his period of working for the Alevi cultural organisation Haci Bektas of itself, or in combination with, other reasons (CB 16);
ix)if the requirement to serve in the military reserve for a few days was as serious as the applicant claimed and he had no satisfactory reason for avoiding or delaying that service, he would not have been permitted to leave the country (CB 17);
x)the applicant’s failure to respond to the military call up was not a significant issue for the authorities and would not result in the applicant facing a real chance of persecution (CB 17);
xi)even if the applicant was directed to stand on sentry duty in the sun that did not involve harm that was serious enough to amount to persecution (CB 18);
xii)even if the applicant were punished upon return for failing to meet his military obligation, such punishment would not be discriminatorily imposed but would be the consequence of a law of general application, applicable to all citizens of Northern Cyprus bound to serve in the military, regardless of Convention reasons (CB 18);
xiii)the applicant was not a conscientious objector to military service and had not been persecuted in the past during military service and did not face a real chance of persecution in the reasonably foreseeable future for reason of avoiding military service (CB 18);
xiv)the applicant did not face a real chance of persecution should he return to Northern Cyprus by reason of his Kurdish ethnicity (CB 21);
xv)the applicant and his family could return to mainland Turkey without a real chance of being persecuted (CB 20 - 21);
xvi)even if the applicant was called back for some military duties in the Turkish mainland, there was not a real chance of persecution he would encounter differential treatment because he was Kurdish (CB 22);
xvii)the applicant could practice the Alevi faith and culture without undue hindrance if he desired; being Alevi did not, of itself, lead to a real chance of persecution (CB 22);
xviii) if the applicant had been of adverse interest to the Turkish authorities he would not have been able to leave the country without hindrance but would have been intercepted prior to, or during, his departure (CB 28 - 29);
xix)the applicant did not have any well-founded fears of persecution at the time he last left Turkey and did not face a real chance of persecution should he decide to return to mainland Turkey (CB 29);
xx)the applicant could return to Northern Cyprus without a real chance of encountering persecution for the reasons he described or for any other Convention reason (CB 28); and
xxi)the applicant’s claimed fears of persecution were not well-founded and he was not a person to whom Australia had protection obligations and the applicant did not meet that criterion for the purposes for the grant of a protection visa.
c)In reaching its findings and conclusions the RRT stated that the applicant’s credibility was an issue and that this issue had been raised in the delegate’s decision and by it and had been addressed in various submissions of the applicant (CB 12). The RRT considered those submissions (including post hearing submissions), recognised its responsibilities as decision maker and the appropriate response for it to take in reaching conclusions on credit and acknowledged awareness of the difficulties faced by applicants from different cultures in presenting their claims (particularly the potential for mistakes due to the necessity to communicate though interpreters). In this context, or with these things “in mind”, the RRT “still did not find the applicant to be a credible witness” (CB 12 - 13).
d)The RRT found that significant aspects of the applicant’s claims or version of events were “contrived” and “implausible”.

The Law

Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).

Conclusions and findings

The first two complaints of the applicant claim that the Tribunal committed a jurisdictional error in that it failed to consider the risk of persecution and the course of future action by Turkish authorities and failed to properly interpret the definition of a refugee in taking into account the risk to the applicant that he might suffer such persecution. Counsel for the applicant relied on the finding by the Tribunal “that Turkish authorities in Cyprus can act oppressively” (CB 14) and the Tribunal’s approval of reports from various sources, including the United States Department of State’s Country Report on Cyprus and the DFAT Country Information Report (CB 19 - 21) which he claimed supported such contentions. The applicant submitted that the Tribunal failed to consider, on the basis of this material, whether the applicant was a person who had a well-founded fear of persecution particularly having regard to the fact the Tribunal accepted as plausible that “Turkish authorities searched various houses, including the Applicant’s, and damaged property.” (CB 14) and that it was also plausible “that the Applicant was stopped and questioned on the street from time to time.” (CB 14). Counsel for the applicant then submitted that, having made these findings, the Tribunal was obliged to consider whether, on this material, there was well-founded fear of persecution because of future, even if random, attention by the authorities focussed on the applicant as a Kurd, an Alevi or a political opponent.

In fact, at CB 14, that is exactly what the Tribunal did. Following the finding that the applicant was stopped and questioned from time to time, the Tribunal states “however, that does not lead the Tribunal to conclude the Applicant was, or remains, at real risk of persecution”. The Tribunal further determined at CB 14:
“the Tribunal accepts that Turkish authorities in Cyprus can act oppressively, but it does not accept that they specifically targeted the Applicant for persecution, either for reasons specific to him or because he belonged to a group whose members were of adverse interest to those authorities. It accepts that being under surveillance with many other citizens, or being questioned by security officials in the street is a form of harassment, but it finds that such activity was not persecutory and does not lead the Tribunal to a conclusion that the applicant faces a real chance of persecution.”
Further, at CB 21:
“The Applicant does not have a history of dissidence, he was of no adverse interest to either the Turkish or Northern Cypriot authorities when he left for Australia and the Tribunal is not satisfied that the Applicant faces a real chance of persecution should he return to Northern Cyprus, notwithstanding evidence of some human rights abuses in that part of Turkey.”
In relation to the country reports, the Tribunal reiterated in its reasons that the country information that was put before it was to be given its due weight in the context of all sources of information before the Tribunal and noted that the UK Home Office did not have a report on Northern Cyprus nor did the major NGO human rights organisations, such as Amnesty International or Human Rights Watch, include Cyprus in their annual international reports. It is important to note that the content of the reports, said by the applicant to have been approved by the Tribunal, do not support the applicant’s contentions. None of those reports state that the Turkish authorities in Cyprus act oppressively towards Alevis, Kurds or political opponents.
After taking into account all of that evidence it is clear that the Tribunal has considered the real chance test in determining whether the applicant had a well-founded fear of persecution (as espoused by Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). Importantly, this conclusion should be read in light of the Tribunal’s reference to case law on the meaning of “real chance of persecution”, its comments about the context in which country information is to be read and the weight attributed to it, the specific content of the reports available to the Tribunal and its findings of facts.
There was no error of law in the Tribunal’s approach. The Tribunal did not fail to take into account a relevant matter nor did it misinterpret the relevant law in a way which caused it to misunderstand its tasks or ask the wrong question. On the evidence before the Tribunal, it was open for the Tribunal to make the conclusion that it did. The applicant’s final submission with respect to these two complaints was that “another way of putting the argument is that on the evidence accepted by the Tribunal, it was not open to the Tribunal to make the legal conclusion it did”(paragraph 27 of the applicant’s contentions). The Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FLR 411 held that although a failure of logic in drawing an inference is not the same kind of error as making a simple mistake of fact it is not an error or law. And in Gamaethige v Minister for Immigration and Multicultural Affairs (2001) FCA 565 the majority determined that a Tribunal decision based on faulty logic is not jurisdictional error and not reviewable.
The next two complaints of the applicant relate to his fear of being mistreated, if he reported for military service by being given arduous and dangerous tasks, because he was a Kurd. The two particular fears of the applicant were being ordered to stand in the sun all day, thereby suffering dehydration and damage to his health, and being assigned as a sentry very close to the border with Greek Cyprus, so that he was at a higher risk of being shot either by the Greeks or by his own Turkish officers, who would blame the Greeks.
The applicant submits that the Tribunal erred in its finding that it was implausible that only Kurds would be directed to stand in the sun all day and that such a requirement did not involve harm so serious that it amounted to persecution. Counsel for the applicant further submitted that the Tribunal did not correctly understand or interpret the meaning of “persecution“ and its ultimate decision may have been different had the Tribunal applied the correct test. I am satisfied that the Tribunal correctly applied the law with respect to “persecution” as involving “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection” (CB 11) and “some serious punishment or penalty or some significant detriment or disadvantage” (CB 12) and that such persecution must have been done for a Convention reason. The Tribunal referred in detail to the requirements of section 91R of the Migration Act in coming to its conclusion that it was not satisfied that a direction to stand as a sentry, even if it was in the sun, amounted to persecution. In doing so the Tribunal stated and applied the correct test.
In any event, even if the Tribunal had erred in its interpretation of “persecution”, the decision would not have been different as it found it “implausible that only Kurds are directed to stand sentry in the sun” (CB 18). In short, the essential and significant reason for the persecution, had it existed, was not for one of the Convention reasons (namely, race, religion, nationality, membership of a particular social group or political opinion). And finally the Tribunal’s conclusion with respect to the real chance of persecution in relation to the applicant returning to sentry duties was supported by independent country information, that “there is reported to be no systematic discrimination against Kurdish conscripts during military service.” (CB 22).
The applicant then contended that the Tribunal, in failing to make a finding with respect to his fear of being assigned as a sentry very close to the Greek border where he was liable to be at greater risk of being shot, failed to consider a relevant matter in coming to its conclusion.

I do not accept that proposition. The Tribunal found that “he states his worst experience was being directed to stand sentry duty in the sun” (CB 18). In other words, the Tribunal concluded that his fear of being placed close to the border, where he was more likely to be shot, was a lesser fear than that of being made to stand in the sun. The Tribunal effectively considered what was stated by the applicant as the worst case scenario and reached a finding adverse to the applicant. And, in any event, even if the Tribunal had erred in respect of that issue it would not have affected the outcome as its ultimate conclusion was that it was implausible that only Kurds were directed to stand sentry duty and that Kurds are not generally the subject of discrimination. Accordingly, I am satisfied that there is no error of law with respect to either of these complaints.
The applicant also submitted that as the Tribunal accepted that the Northern Cyprus and Turkish military systems administration might be independent then the conclusion that the applicant’s departure to Australia from mainland Turkey would not have been permitted if the applicant had outstanding obligations of a serious kind was so unreasonable that no reasonable Tribunal could have made it. However, I am satisfied that the Tribunal did not reach a definite conclusion on the independence of the systems. The Tribunal indicated that may be the case and then immediately went on to say:
“the fact remains that the Applicant was able to obtain and renew his Turkish passport and then travel to and from Cyprus without being interrupted, at a time after he says he had been called to serve.” (CB 17)
I am satisfied that the Tribunal was emphasising that fact to reach its conclusion that if the requirement to serve in the reserve for a few more days was as serious as the applicant claimed he would not have been permitted to leave the country. In those circumstances, his failure to respond to the requirement to serve was not a significant issue to the authorities and would clearly not result in the applicant facing a real chance of persecution. The Tribunal’s decision is supported by the DFAT Country Information Report No. 217/98 that stated:
“people who are wanted by the authorities and whose departure would be deemed illegal are reported to the customs and borders units of the police which enter names, and if possible, passport information on their computer system.” (CB 27)
Again I am satisfied that there is no error of law arising out of this complaint.
Finally, the applicant has contended that the Tribunal erred in concluding that it was reasonable for the applicant to return to mainland Turkey rather than Cyprus. It was further submitted that this error arose as a result of an infection from other errors the Tribunal made in relation to the meaning of “well-founded fear of persecution” and as such its conclusion is unreasonable and cannot stand. I do not accept that submission for the reasons that I have already given with respect to the other alleged errors. Additionally, the Tribunal correctly identified and applied the relevant law as stated by the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, which held that the definition of a refugee under the Convention should not be construed so that it would give refugee status to those who:
“although having a well-founded fear of persecution in their home region, couldn’t none the less avail themselves of the real protection of their country of nationality within the country.”
The Tribunal clearly considered the reasonableness of the conclusion that the applicant return to the mainland of Turkey rather than Cyprus by considering that the applicant and his wife had connections with the mainland, had lived there until 1988, held Turkish passports and had travelled there previously from Cyprus. Further, the Tribunal concluded that the applicant had no military obligations in Turkey and that independent country information showed that there was no systematic discrimination against Kurdish conscripts during military service. I am satisfied therefore that there was no reviewable error in that reasoning. It was the respondent’s submission that the applicant based much of his submission on the minute analysis of the Tribunal’s decision. It was further submitted by the respondent that reasons for a decision should not be so construed nor should they be read “finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. I agree with that submission.
And, for all of the above reasons, the appeal will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate: N. Lane

Date: 15 April 2004