VKAX v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1432

FEDERAL COURT OF AUSTRALIA

VKAX v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1432

Judiciary Act 1903 (Cth)
Federal of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)

NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263

VKAX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1056 OF 2003

SELWAY J
4 NOVEMBER 2004
ADELAIDE (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1056 OF 2003

BETWEEN:	VKAX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	4 NOVEMBER 2004
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.The appeal is allowed and the orders made by the Federal Magistrates Court on 6 November 2003 be set aside.

2.In lieu of the order made by the Federal Magistrates Court, the decision of the Refugee Review Tribunal given on 4 October 2002 be quashed and the matter be remitted to the Tribunal for further consideration in accordance with law.

3.The respondent pay the appellant’s costs of the originating proceedings and of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1056 OF 2003

BETWEEN:	VKAX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	4 NOVEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This in an appeal from a decision of the Federal Magistrates Court in VKAX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 489. The learned magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 4 October 2002. The application before the Federal Magistrate was made pursuant to s 39B of the Judiciary Act 1903 (Cth). The application had been remitted to the Federal Magistrates Court from this Court.

2. The Chief Justice has determined that this appeal should be heard by a single Judge:  see s 25(1A) of the Federal of Australia Act 1976 (Cth).

3. For the reasons given below the appeal is allowed, the order of the RRT is set aside and the matter is remitted to the RRT for further consideration.

4. The appellant is a citizen of Turkey who is of Kurdish ethnicity and of the Alevi Religion.  He arrived in Australia on 22 April 2001.  He lodged an application for a protection visa on 29 May 2001.  In order to obtain that visa the respondent (“the Minister”) had to be satisfied that Australia owed protection obligations to the appellant pursuant to the Refugee Convention as varied:  see 36(2) of the Migration Act 1958 (Cth) (“the Act”) In general terms the Minister had to be satisfied that the appellant:

   “… owing to a 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, is unable or, owing to such fear, is unwilling to return to it.”

5. The appellant’s claims for refugee status were initially considered by a delegate of the Minister who dismissed them.  He sought a review of that decision from the RRT.  It also dismissed his application.

6. There were several bases for the claims made by the appellant that Australia had protection obligations to him.  These were summarised by the Tribunal as follows:

   “The Applicant’s claims relate to fears that he will be harmed by the Turkish authorities and the general population, partly because he is Alevi and Kurdish and partly because of an affiliation with HADEP and his membership of a family of dissidents.”

7. As to his claim of membership of a family of dissidents, the appellant is a member of a family that includes three brothers who have been accepted as refugees on the basis of their political views (two in England and one in Australia).  Another family member, Riza Altun, is a prominent dissident in Turkey.

8. The RRT, in its reasons, discussed at some length the appellant’s claims based upon religion and ethnicity.  As to the appellant’s membership of the Alevi religion the Tribunal said:

   “It is apparent that there has been little, if any, government harassment of Alevis for reason of pursuing their culture and religion in recent years, notwithstanding earlier incidents of serious attacks on some Alevis. The available information indicates that the Applicant, should he so choose, can practice the Alevi faith and culture without undue hindrance. As discussed below, the Tribunal is not satisfied that he has been (or is perceived to have been) involved in any activity or with any group that would lead the Turkish authorities to persecute him for reasons connected with being Alevi, either for that reason alone or in combination with other reasons. It concludes that there is not a real chance he faces persecution for reasons related to being Alevi.”

9. As to the claim based on ethnicity, the Tribunal discussed at some length the position of Kurdish people in general.  It also discussed in some detail the position of persons who are members of political parties seeking separate government for Kurdish people or for the protection of the rights of Kurdish people.  Reference was particularly made to the PKK Party and the HADEP Party.  The appellant claimed that he and his family were associated with the HADEP Party.

10. The Tribunal noted that human rights abuses still occur in Turkey including in relation to persons involved in Kurdish political parties.  However, the Tribunal also noted:

    “While the available information demonstrates that there are ongoing human rights abuses, it is equally apparent that they have significantly diminished in the recent years since the arrest of leader of the PKK, Abdullah Ocalan… Whatever the motivation, the fact remains that there has been significant improvement in the human rights of Kurds in Turkey.”

11. In relation to the appellant, the Tribunal accepted that his brothers may have been persecuted in the 1980s by reason of their political associations with the HADEP Party.  However, the RRT found that the appellant was in a different position because he had been able to satisfy the Turkish authorities that he was not politically involved and was different from other members of his family.

12. In relation to the period until 1990 the RRT found:

    “… the Tribunal accepts that the Applicant was bullied and victimized at school. It accepts that his family, and other Kurdish families in his area were kept under surveillance and questioned from time to time and has no reason to doubt that security officials were both careless and cavalier in making inquiries. It accepts that two brothers fled to the UK in 1985 and were subsequently recognised as refugees. In the meantime, the Applicant had gone to work in Istanbul. He returned to his home village in 1988 and the Tribunal accepts he was questioned about his brothers. His willingness to return to his home village and then remain there until he was conscripted in 1990, indicates he did not genuinely fear he would be persecuted. It is apparent from the evidence he gave that he was not persecuted during that period.”

13. In relation to the period from 1990-1992:

    “Ultimately, [the appellant] was honorably discharged in 1992 [from the army] and returned to his home village.  The Tribunal is satisfied he would not have been honorably discharged if he was suspected of supporting the Kurdish cause, nor does it accept he would return to his home village if he was so suspected. It does not accept that his experience in the military is an indication that he faces a real chance of persecution should he return to Turkey some 13 years after his discharge.”

14. The appellant claimed that he was persecuted in 1992, causing him to flee to Istanbul.  The Tribunal did not accept that claim.  Nevertheless, it did say that even if it were true, it did not result in a real risk of future persecution:

    “If, as he claims, he was mistreated in 1992 and fled to Istanbul, the Tribunal is satisfied that the matter was finalized with a clearance from Kayseri authorities. Those same authorities also issued his passport in December 1998, providing further evidence that he was of no adverse interest to the Turkish authorities. His willingness to return to his own village in Turkey from Russia in 2000 is a strong indication that he did not fear he would be persecuted. His ability to pass through border security controls, return to his village and negotiate all of the administrative requirements attendant on establish his own farming business, without encountering any difficulties, all lead the Tribunal to conclude he was of no adverse interest to the authorities. He had presented himself to those authorities on several occasions but they had not intercepted him. If he had been of adverse interest because of his political opinion or affiliations, the Tribunal has no doubt he would have been at least interrogated.”

15. Nevertheless, the RRT did accept that the appellant was detained and questioned whilst he was in Istanbul in 1997.  The Tribunal found that the appellant had been released on satisfying the Turkish authorities that he was of no interest to them.

    “It is plausible that [the appellant] was detained and questioned over his participation in HADEP activities in 1997, but he was released after a week and was subsequently able to obtain a passport and use it on several occasions to leave and re-enter Turkey. In that regard, he went to Russia and Cyprus and returned and he also left for Australia from Istanbul airport. The failure of the authorities to intercept him on any of those occasions suggests that they had no further adverse interest in him. That is concordant with the Applicant’s evidence that he was not a member of HADEP. It is consistent with his willingness to return to Turkey on two occasions. It is also consistent with the willingness of the Turkish authorities to provide travel documents and permit him to exit and re-enter Turkey on several occasions without intercepting him … [the Tribunal] finds he was detained, interrogated and roughly treated for a few days in 1997 and was then released because the Turkish authorities were satisfied he was not connected with any opposition movement or party, notwithstanding that he is Kurdish.” 

16. Finally, the Tribunal dealt with a claim by the appellant that he had been beaten by undercover government agents in July 2000.  It will be necessary to return to this issue in more detail below. 

    “The [appellant] has claimed that he was beaten by undercover government agents in July 2000. The Tribunal finds that story to be implausible and concludes it is a fabrication …

    It is plausible that the applicant was beaten in July 2000 but the Tribunal does not accept that he was beaten by government agents who believed him to be a PKK supporter.  If he was beaten, the Tribunal is not satisfied it was for reasons related to his ethnicity or political opinion, notwithstanding the evidence given by witnesses.  The Tribunal found neither of the witnesses provided evidence of sufficient weight to alter its conclusion that the applicant fabricated the story of being beaten for reason of his support of the PKK.”

17. The Tribunal ultimately concluded:

    “It is not satisfied that [the appellant] faces a real chance of persecution for the reasons he has described or for any other Convention reason should he return to Turkey. In any event, he can reasonably relocate to Istanbul from his former place of residence.”

18. Consequently the Tribunal affirmed the decision previously made by the delegate not to grant a protection visa to the appellant. 

19. Both parties accepted that in order to succeed in the application ultimately before the Federal Magistrates Court to review the RRT decision, the appellant had to show that there was a jurisdictional error in the process, reasoning or decision of the Tribunal.  One of the alleged jurisdictional errors raised before the Federal Magistrate, and the only one still relevant in this appeal, was that the RRT failed to consider or failed properly to consider the claim made by the appellant that he feared persecution for reasons of his membership of a particular social group, namely membership of a family of dissidents.

20. In relation to that alleged jurisdictional error, the learned Federal Magistrate said:

    “For the present purposes I am satisfied that the membership of a family of dissidents may in certain circumstances constitute a membership of a particular social group which may be relevant in deciding an issue of whether to grant a protection visa to the [appellant].  I am further satisfied that a failure to consider a matter of that kind may on the authorities to which I have referred may in certain circumstances constitute jurisdictional error.

    In the present case, however, having regard to the extracts to which reference has been made of the RRT’s reasoning and findings, I am satisfied that the issue was properly addressed and when considering the manner in which the claim was presented to the RRT it conducted its fact finding mission in an appropriate and relevant manner.  It considered in general terms the way in which the case was put during the course of its reason, addressed its mind to the issue of the applicant’s siblings and his political activities.  In doing that it had responded to the application then presented to the RRT and was not required to proceed after making adverse findings of fact to then formulate the further case for the applicant by precisely identifying the social group and then considering the matter further in the manner now sought to be argued by counsel for the applicant.

    In my view there has not been a failure to consider the case advanced by the applicant and indeed the RRT has effectively considered the issue of the social group during the course of its adverse findings against the applicant and in particular those findings relating to the applicant’s movements, his relocation elsewhere, the fact that his brothers had been granted refugee status and perhaps more importantly the extent and nature of the applicant’s political involvement.  All of these matters are appropriate matters to consider by way of background findings which then in turn quite properly have led to a conclusion reasonably open to the RRT without the need to then progress further to identify the social group and in particular make a finding that the applicant belonged to a family of dissidents.  In the circumstances I can see no jurisdictional error arising out of this issue.”

21. In the appeal before me the appellant argues that the learned Federal Magistrate erred in finding that the RRT did properly consider the claim that the appellant had a well founded fear of persecution by reason of his membership of a particular social group namely his membership of a family of dissidents.  The appellant argues that the learned Federal Magistrate, having found that a “family of dissidents” was a relevant social group, should then have determined that the RRT fell into jurisdictional error in not considering whether there was a real risk of persecution of the appellant by reason of membership of that social group. 

22. The appellant in particular draws attention to the failure of the RRT to deal with or consider the evidence of the appellant’s brother.  The appellant’s brother has been granted refugee status in Australia.  He provided declarations which were put before the Tribunal and he also gave oral evidence.  The RRT described that evidence as follows:

    “Huseyin provided declarations about his political involvement and activities in Turkey. He stated that he lived in Sariz, a town near his village, where he and another brother sought to establish a branch of HADEP. On the advice of HADEP officials in Kayseri, they did not formally establish a branch, but they acted as an unofficial bureau and held meetings there,  and the shop was a gathering place for Kurds who, prior to their meetings, were afraid to promote their Kurdish ethnicity. The police and army suspected that the shop was a branch of HADEP and often raided it. Huseyin was detained and seriously mistreated on more than one occasion. He fled to Istanbul, where he worked with the HADEP youth branch and established Kurdish language classes. He described how his parents were often harassed and how Ismet, the brother who operated the shop in Sariz, was also harassed. He declared that after his discharge from the Army in July 2000, he returned to his village and both he and Ismet were detained and tortured for a week. After their release, Huseyin declares that he “learned that my brother Dervis [the Applicant] had been found working in the fields. He was arrested and beaten near to death. He was left in a deserted mountain area. He was not found by shepherds until 2 days later.’”

23. The appellant says that the Tribunal had to deal with this evidence from the appellant’s brother if it was to seriously consider his claim that he had a well founded fear based on his family membership. 

24. The appellant also refers to country information which was referred to and apparently relied upon by the Tribunal.  A report from the United Kingdom made the following comment:

    “Relatives of HADEP members

    5.114Relatives of HADEP members need not fear persecution by the Turkish authorities solely because one or more of their relatives is a member of HADEP. In certain cases, however, it cannot be ruled out that the authorities pay particular attention to, for example, first or second degree relatives of prominent HADEP members.”

25. On the basis of this information the appellant says that it was necessary for the Tribunal to consider whether the appellant had a well founded fear of persecution by reason of his family membership.

26. As the learned Federal Magistrate correctly found, the Tribunal had a duty to consider the appellant’s claim that he had a well founded fear of persecution by reason of his membership of a family of political dissidents:  see NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 at [53]-[63]. So much was accepted by both parties in the appeal before me.

27. The only issue in this appeal is whether the factual findings and conclusions made by the Tribunal involved such a consideration of his claim.  Plainly, the RRT did not consider it expressly and separately.  But the reasoning of the Tribunal did, at least in part, exclude aspects of the claim.  What the Tribunal seems to have found is that the appellant, having satisfied the Turkish authorities that he himself did not have the political involvement that other members of his family did have, was not then subject to persecution at all.  That answer, if it was consistently applied in the reasoning of the RRT would, in my view, be a satisfactory answer to the whole of the claim, including the claim relating to membership of his family.  Plainly enough, if the appellant was not subject to any persecution for any reason, this would encompass persecution by reason of his membership of his family.  If the RRT properly reached that conclusion then, having concluded that he was not subject to persecution in the past, the RRT could safely have reached the further conclusion that the appellant would not have a well founded fear of persecution if he was returned.  This is what the learned Federal Magistrate found that the RRT had done.  But for the manner in which the RRT dealt with the alleged assault upon the appellant in 2000 I would have taken the same approach.

28. The problem with this analysis is the Tribunal does seem to have reached the conclusion that it was at least plausible that the appellant was beaten in July 2000.  The RRT said that it did not accept that he was “beaten by government agents who believed him to be a PKK supporter”.  It is not clear whether the RRT determined that the appellant was assaulted by someone other than government agents or whether it accepted that he was assaulted by government agents but for reasons other than that he was a PKK supporter.  The RRT continued, “if he was beaten, the Tribunal is not satisfied it was for reasons related to his ethnicity or political opinion, notwithstanding the evidence given by witnesses”.  Accepting that the Tribunal was not satisfied as to that, that does not necessarily deal with the other claim raised by the appellant, namely whether he was beaten by reason of his membership of a family of political dissidents. 

1. The result seems to me to be that it is at least open on the Tribunal’s reasons to conclude that the Tribunal reached the view either that the appellant was assaulted in 2000 or that he may have been and that the assault was by government agents or that it may have been.  However, it is also at least open on the Tribunal’s reasons that it did not then proceed to consider whether a reason for such an assault may have been that the appellant was a member of a family of dissidents.  Given that there was a reasonable possibility that the Tribunal accepted that the appellant was assaulted in 2000 by government agents, then it must follow that the Tribunal’s acceptance elsewhere in its reasons that he was not previously at risk of any persecution for whatever reason was no longer true.  If he was at risk of persecution in 2000 then the Tribunal needed to consider whether he was still at risk for a Convention reason.  As discussed, it did so in relation to ethnicity and political opinion.  It did not do so in relation to his claim to be a member of a family of dissidents.  It could not be said that such a claim was plainly far fetched or fanciful.  It was supported by the evidence given by the appellant’s brother and received some support from the independent country information.  Of course, the Tribunal was not obliged to reach the conclusion that the appellant had a well founded fear of persecution by reason of his membership of a family of dissidents.  It could, for example, have concluded that the reason for him being assaulted was some other reason than his membership of his family.  However, once the RRT accepted at least as a possibility that the appellant may have been persecuted by the Turkish government or by government agents in 2000 it then had to deal with the possibility that that persecution may have been for reasons of membership of a particular social group as claimed.  In particular, it then had to consider whether the appellant had a well founded fear of persecution by reason of membership of his family if he was returned to Turkey.

2. In these circumstances the appeal must be allowed.  In lieu of the order made by the Federal Magistrates Court it should be ordered that the decision of the Refugee Review Tribunal given on 4 October 2002 be quashed and the matter be remitted to the Tribunal for further consideration in accordance with law.

3. The respondent should pay the appellant’s costs of the originating proceedings and of the appeal.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:
Dated:             4 November 2004

Counsel for the Appellant:	A M Sheehan
Solicitor for the Appellant:	Victorian Legal Aid
Counsel for the Respondent:	S Hay
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 October 2004
Date of Judgment:	4 November 2004