VWFP v Minister for Immigration
[2005] FMCA 593
•12 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWFP & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 593 |
| MIGRATION – Judicial review of decision of Refugee Review Tribunal – whether Tribunal failed to consider claim – whether Tribunal based decision on findings or inferences of fact not supported by probative material or logical grounds – no jurisdictional error – application dismissed. |
Judiciary Act 1903
Federal Court of Australia Act 1976
Abebe v Commonwealth of Australia (1999) 197 CLR 510
| Applicants: | VWFP & VWFQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 657 of 2004 |
| Delivered on: | 12 May 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 28 April 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicants: | Ms Costello |
| Solicitors for the Applicants: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $6,000.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 657 of 2004
| VWFP & VWFQ |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Preliminary
The applicant made application for review on 27 April 2004 in the Federal Court of Australia. That application was transferred to this Court by order of Marshall J on 31 May 2004 and pursuant to section 32AB of the Federal Court of Australia Act 1976. The application was amended by amended application filed 3 December 2004. The applicant relies upon that amended application together with contentions of fact and law filed 3 December 2004 and an affidavit of Mr Gelev, Solicitor, filed 3 March 2005 to which is annexed a transcript of the hearing of the Refugee Review Tribunal on 2 March 2004 before Tribunal member, Ms G. Hamilton.
The respondent has filed a court book in the proceedings and contentions of fact and law, those contentions being dated 21 December 2004.
History
The applicants are citizens of Turkey. They arrived in Australia on 8 November 2002. The second applicant is the daughter of the first applicant and relies upon the first applicant's visa application. No specific Convention claims were made on behalf of the applicant child and the fate of her application therefore depends on the outcome of the first‑named applicant's application. For the purposes of this proceeding therefore, only the first‑named applicant's visa application is relevant.
The applicant travelled from Turkey to Australia on a passport issued in her own name. She had no difficulty obtaining this passport, it being issued to her within a week. It was issued in August of 2002 but the applicant did not depart Turkey until November 2002. The applicant had no difficulty in departing Turkey.
On 20 December 2002 the first and second applicants lodged applications for protection visas with the Department of Immigration Multicultural and Indigenous Affairs (“the Department”). On 14 May 2003 a delegate of the respondent refused to grant the applicants’ protection visas. On 10 June 2003 the applicants applied to the Refugee Review Tribunal for a review of the delegate's decision. By decision dated 4 March 2004 and handed down on 26 March 2004 the Tribunal affirmed the delegate's decision to refuse to grant the applicants a protection visa. Hereafter I shall refer to the first-named applicant.
The amended application invokes section 39B of the Judiciary Act 1903 (Cth).Essentially, the applicant claims that the Tribunal:
a)failed to consider her claim based on membership of a left‑wing Alevi social group and the actual/imputed political opinion arising from this membership; and
b)based the decision on findings or inferences of fact which were not supported by some probative material or logical grounds.
In relation to this second claim, it is said by the applicant that the Tribunal made the following findings based on the Tribunal's personal and irrelevant views:
The applicant's failure to complain to the police was not consistent with the role of a human rights defender;
and -
Some of the types of harm the applicant claimed of did not appear consistent with the behaviour of militants, or human behaviour in general; for example, writing letters about the applicant to her boss, especially to complain about her performance at work, is something that a customer might do but is rather bureaucratic for an ultra‑right thug;
and -
The Tribunal is sceptical of claims that a marriage can actually be broken up over political differences or honestly deniable scandal manufactured by a political enemy.
The Tribunal hearing
The Tribunal had before it the Department's file which included the protection visa application and the delegate's decision record. The Tribunal also had regard to the material referred to in the delegate's decision. The first‑named applicant gave oral evidence to the Tribunal on 2 March 2004. The Tribunal noted that in her protection visa application the applicant said she was born in Turkey in 1969 and speaks, reads and writes Turkish. Her religion is "Alaourte" Islam. She was divorced in Istanbul in January 2001. Her occupation was as a banker. She attended university and from there, and between May 1990 to October 2002 she was a bank manager.
The applicant claimed to have been an active member of the Human Rights Association for five years, working in various committees investigating human rights abuses and preparing reports. As a result, she claimed to have been harassed and physically abused by right‑wing militants supported by the authorities. She claimed that they threatened her and did everything to destroy her life, including influencing her husband against her, which led to their divorce. Due to these alleged activities, the applicant claimed she had to resign from her employment on 31 October 2002. The applicant believed that both her life and that of her daughter were in danger. The applicant’s claims included that:
i)the Chairman of the Human Rights Association was almost killed seven years previously. Other members were murdered and their killers not identified;
ii)the Turkish government was using militants to abuse human rights;
iii)if the applicant and her daughter returned to Turkey they would be abused and possibly killed;
iv)AKP, an extreme Islamic party, had come to power. The militants would be more supported than ever;
v)the Association expected her to remain an active participant. The government opposed the Association because it was forced to pay compensation to victims of human rights abuses exposed by the Association. All members of the Association were under surveillance.
Before the Tribunal were documents concerning the applicant's visitor visa application indicating that her daughter's father had given permission for her, the daughter, to visit Australia. The applicant's employer also gave permission for her to travel. Her ex‑husband came to the counter to bring the applicant's police clearance report. The Tribunal noted that at her interview with the delegate in February 2003 the applicant claimed her ethnic group to be Turkish Alevi. She claimed her religion to be Islam but of a different sect.
The country information considered by the Tribunal and included in the reasons contained material in relation to Alevism. That country information was discussed with the applicant at the hearing. The transcript of the hearing tendered in evidence on the hearing proceeding before me indicated that some considerable time was spent by the Tribunal canvassing various matters including those raised by the applicant; that raised by country information; and other matters of relevance as raised by the Tribunal member herself. The applicant's early life, education, family relations, residences, employment, employment promotion, marriage, involvement with the Human Rights Association, rightist militants, extreme religious groups, police activity, the position of Alevis in Turkey, the applicant's employment prospects in the public sector and its relationship with her political opinion, together with any threats or harassment which the applicant claimed to be subjected to were all canvassed with the applicant by the Tribunal member.
The applicant said she joined the Human Rights Association of Turkey (HRA) in 1997 and was asked as to the procedure for joining, the geographical place of the HRA offices, and the names of those persons involved in the organisation including its leaders. The Tribunal asked the applicant about HRA publications and what she did in particular for the HRA. The Tribunal observed the applicant's answers to be hesitant, which the Tribunal found contradicted her claim to be an active member of the HRA. The Tribunal noted that the applicant claimed to prepare reports on prisons and hunger strikes and on poverty in her area for the HRA. She claimed that she did not investigate the situation of any particular individual human rights victim. The applicant said she lived in a leftist area and had relatives who were also involved in political issues. The reports which she prepared, the applicant claimed, would be submitted and then published in journals or in leaflets to be distributed. The Tribunal asked the applicant whether she knew the name of the HRA's web site and whether she knew what had happened to the Istanbul branch in December 2000. The Tribunal queried the applicant's familiarity with matters pertaining to the operations of and membership of the HRA.
The applicant handed to the Tribunal a letter from the HRA and the Tribunal noted that it made no reference to the applicant having been threatened, which the Tribunal would have expected it to do, if the applicant was known to have had those experiences. The applicant responded that she thought her claim to be a member of the HRA was satisfied by the letter and that she had not asked the HRA to include in their letter the subject of threats directed to her. The Tribunal queried this, saying that the applicant would have been aware by then that mere membership of the HRA would not necessarily establish that she was at risk of persecution. The Tribunal said that it would have expected that, as a human rights defender, the applicant would have reported her experience to the police, which she did not, even if the applicant was sceptical about their likely interest. The Tribunal asked the applicant about whether she discussed her harassment and the threats to her with her employer. The applicant said she did tell her colleagues and that subsequently her employer became appraised of the situation but did not assist her.
Tribunal findings
The Tribunal found the applicant was a national of Turkey but was not satisfied that the applicant was an active member of the Human Rights Association as she claimed. The applicant's knowledge of the HRA and about human rights issues was not the knowledge of a person who was genuinely involved as claimed. The Tribunal noted that its findings were not outweighed by the letter from the HRA. The Tribunal did not accept that the applicant was harassed and threatened as she claimed or that she was still being sought in Turkey, as her family members claimed. The Tribunal found the applicant's identification of the perpetrators as right‑wing militants and/or religious extremists was unconvincingly vague and also implausible. The Tribunal conceded that Islamists and Nationalists had taken a similar stance on some issues in Turkey but not on human rights activism in general and found that it was not plausible that they would act in unison against a single human rights defender.
The Tribunal found the applicant's failure to complain to the police was not consistent with the role of a human rights defender and reinforced the finding that the applicant was not harmed as she claimed, as did the failure of the HRA letter to refer to any such threats, which was not satisfactorily explained. In its reasons the Tribunal said the following:
The Tribunal recalled that the applicant had also claimed that the militants directly undermined her at work. The Tribunal recalled the claims made at the interview that they sent written reports to the bank about her political activities and complained about her service. The Tribunal doubted whether thugs of that type would write such reports. The claim also implied that they were also customers of the bank, which was quite a different perspective on her claims. The applicant said they were not necessarily customers but people who walked in wanting to change money. The Tribunal asked whether the applicant now claimed that the militants actually came into the bank. The applicant said, "Yes." The Tribunal noted that this was a new claim. The applicant said she had tried to explain it before. The Tribunal asked the applicant what her boss wanted her to do about the situation she was in. The applicant said he just wanted her to resign, and was not interested in looking into the reasons for her predicament.
The Tribunal noted that the applicant had not claimed that she risked persecution as an Alevi, and that his understanding of the country information was that although there had been violent incidents towards Alevis in the past, there had not been any (for religious reasons) in recent years and the chance of the applicant being seriously harmed due to her religion appeared to be remote. The applicant said that Alevis were treated differently in Turkey. She agreed that her being Alevi was not important at the moment, but said she lived in a leftist/Alevi area.
And later:
The adviser said the applicant's claim should not be assessed as though Turkey was a democratic and developed country. The police were not the same institution there as they were in Australia. People in Turkey were afraid of the police. On the applicant not knowing the HRA's web site, the adviser said that only 8 to 9 per cent of the Turkish population has Internet access. The applicant did not and does not have Internet access. The adviser agreed that the national socialists and the religious extremists in Turkey did not unite on many areas but they were not enemies and sometimes did collaborate - example, in the hotel fire is Sivas that killed a number of Alevis. They collaborated in Cyprus, and in the east. He said the HRA would not mention the applicant's experiences in their letter because if they did they would have to be in a position to prove that those experiences were true. The adviser agreed that there had been no religious killings of Alevi in recent years, but that Alevi was still not accepted and they were still harassed.
The Tribunal did not accept that the applicant was harmed economically due to her political opinion, given her successful career at the bank prior to her leaving Turkey and, based on the country information and the presentation of her own written claims, found that the chance of the applicant being seriously harmed due to her religious background was remote.
Consideration
I find that on a fair reading of the Tribunal's reasons the Tribunal did consider the applicant's claim based on membership of a left‑wing Alevi social group and the actual/imputed political opinion arising from this membership.
Commencing at page 24.7 of the transcript the following appears:
MS HAMILTON: Now, you've also said that your – the branch of Islam that your family is from is Alevi. You haven't made any claims indicating that you anticipate being harmed because of your religion and my research about the Alevi faith in Turkey indicates that it's not a persecuted faith, the Alevis aren't persecuted, although there have been some serious incidents in the past.
INTERPRETER: But there is a different treatment for them. Certain parts of the country or certain parts of the crowd, community, do not live all these - they don't experience all these things that Alevi is and under the right of left, whatever, but a certain group of people, certain parts of the community, they do have problems.
MS HAMILTON: The information I have indicates that although there have been incidents of violence against Alevis, not in recent years, and that Alevi are free to practise their religion.
INTERPRETER: They do have an association and all that, but it's still continuing. There are secret things going on. All the sources have been lost and opinions that have been lost, people, and Turkey wants to become a member of European Union now so they try to look their best and there's still pressures on the organisations and murderers. I still have the (indistinct) they do - but so many people die and so many people died being burnt, you know, they died (indistinct) and all those things happened in the past.
MS HAMILTON: Okay. Based on the way you've presented your claim, I would think that the chance of anything like that happening to you would be remote and that you yourself perceive it that way.
INTERPRETER: Well, there's a certain part of the community are still exposed to all those problems but some part do not, but of course my being an Alevi is not important at the moment. It's not an issue but my, you know, surroundings and area we were living, they were all leftist and Alevi. Of course that was true and that's a reality, and my family and my parents are Alevi. Just for one person sometimes, that person's existence can cause the killing of - and dieing of many, many people.
MS HAMILTON: Thank you.
It is quite clear that the applicant said to the Tribunal that her being an Alevi was not important nor an issue at that time. The applicant did not put to the Tribunal a claim to fear persecution because of her membership of the Alevi social group. Not only was such a claim not put at the hearing but it was not put prior to the hearing, including in the statement from the applicant, in response to the Tribunal's invitation to attend a hearing. Notwithstanding that the claim to fear persecution because of the applicant's membership of the Alevi social group was not put, the Tribunal dealt with Alevis and with Alevism, citing country information on the topic. The Tribunal considered the chance of the applicant being seriously harmed due to her religious background as an Alevi to be remote and based that finding on the country information before it and the applicant's presentation of her own claims. The Tribunal noted that the applicant had not claimed that she risked persecution as an Alevi and noted that the applicant agreed her being Alevi was not important at the moment but that she lived in a leftist Alevi area. The Tribunal directly asked the applicant about her being an Alevi and considered that religious background in the context of a possibility of persecution.
No jurisdictional error was committed by the Tribunal in this regard.
The applicant then refers to the Tribunal's reasoning below, claiming that it is are the expression of personal and irrelevant views not supported by the evidence. The Tribunal said:
Second, the applicant's failure to complain to the police was not consistent with the role of a human rights defender and reinforced the finding that the applicant was not harmed as she claimed, as did the failure of the HRA letter to refer to any such threats, which was not satisfactorily explained. (Of course the HRA could refer to such threats and harassment without committing itself to being able to prove the incidents occurred.)
There is nothing illogical contained in this finding. It is an assessment of the plausibility of the applicant's claim and, whilst the applicant may not agree with the assessment, no illogicality is manifest. Likewise, the Tribunal finding:
Third, some of the types of harm the applicant claimed of did not appear consistent with the behaviour of militants, or human behaviour in general. For example, writing letters about the applicant to her boss, especially to complain about her performance at work, is something that a customer might do but is rather bureaucratic for an ultra‑right thug. And the Tribunal is sceptical of claims that a marriage can actually be broken up over political differences or honestly deniable scandal manufactured by a political enemy. If the applicant had really been threatened or harmed she would not have resorted to these unconvincing, and artificial claims.
Again, these findings, on a fair reading of the Tribunal's decision as a whole amount to no more than an assessment of the plausibility of the applicant's claims. The Tribunal remains the finder of fact and is not required to accept an applicant's claims uncritically. It does fall upon the applicant to make out her case (Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at 576).
The observations of the Tribunal and the Tribunal's findings as a whole in the reasons, do indicate a proper exercise of jurisdiction. The evidence as contained in the transcript indicates the Tribunal member proceeded in a logical and judicial manner in its testing of the applicant's claims. The Tribunal considered and determined all of the relevant material before it to determine its satisfaction or otherwise as to the existence of certain matters. Its satisfaction has been attained by findings supported by probative material.
Throughout the hearing and upon a fair reading of the reasons there is no illogicality in the way in which the Tribunal member has dealt with information placed before her, both as contained in country information and information provided by the applicant. There is evident a consideration of material matters and the Tribunal has met its task of acting judicially. The Tribunal has not considered irrelevant material and made such material determinative of the outcome. The applicant does not put before the court relevant material that it claims the Tribunal has not considered, nor has the applicant specified any failure on the part of the Tribunal to ask itself the right question as a consequence of any perceived illogicality.
Accordingly, the applicant has not identified any reviewable error and the application will be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 12 May 2005
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