VXCD v Minister for Immigration
[2006] FMCA 1105
•4 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VXCD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1105 |
| MIGRATION – Refugee Review Tribunal – whether tribunal decision vitiated by apprehended bias – conduct of tribunal member – tone and delivery of comments at outer end of reasonable conduct by a tribunal member – conduct alone insufficient to form basis of claim for apprehended bias – application dismissed. |
| "Applicant A" & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 M51 of 2005 v Minister for Immigration Anor [2006] FMCA 606 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SZELD v Minister for Immigration Anor [2006] FMCA 74 SZEPV v Minister for Immigration Anor [2006] FMCA 71 SZERDAnor v Minister for ImmigrationAnor [2006] FMCA 15 SZHFC v Minister for Immigration andAnor [2005] FMCA 1922 SZHGE v Minister for ImmigrationAnor [2006] FMCA 275 VAUU v Refugee Review Tribunal [2002] FCA 417 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 |
| Applicant: | VXCD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG1035 OF 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 26 April 2006 |
| Date of Last Submission: | 26 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the First Respondent be amended from "Minister for Immigration and Multicultural and Indigenous Affairs" to "Minister for Immigration and Multicultural Affairs."
The application filed on 22 August 2005 and amended on 28 November 2005 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1035 of 2006
| VXCD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Turkish citizen who was born in Turkey in 1975. From 1989 he lived in northern Cyprus. The applicant travelled to Australia on 23 November 1999. On 6 January 2000 he lodged an application for a protection visa. In that application, the applicant claimed that as a result of his Kurdish ethnicity, Alevi religion and imputed political opinions indicating support for Kurdish organisations; there was a real chance that if he returned to Turkey or northern Cyprus he would be persecuted by the authorities.
On 18 April 2000 a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied to the refugee review Tribunal on 4 May 2000 to review the delegate's decision. In support of that application the applicant provided to the Tribunal a document described as an indictment and summons issued on 25 October 1999 by the Nicosia District Court that appeared to charge him with assisting and harbouring an illegal organisation. He also provided correspondence from his father and a friend stating that he would face harm if returned to Turkey or northern Cyprus.
The tribunal made a decision on 12 June 2002 affirming the delegate's decision to refuse to grant the applicant a protection visa. The applicant applied for judicial review of this decision in the Federal Magistrates Court, the application being dismissed on 6 May 2004. The applicant appealed to the Full Court of the Federal Court, and on 29 October 2004 consent orders were made setting aside the tribunal's decision. The consent orders were made on the basis that the tribunal had not put to the applicant its concerns about the genuineness of the indictment and summons, and the letters, and therefore had not accorded him procedural fairness.
Following remittal of the matter, the tribunal wrote to the applicant on 2 December 2004 inviting him to a hearing. On 9 March 2005 the applicant attended a hearing where he gave evidence with the assistance of an interpreter and was supported by a representative. That representative was a member of a firm of solicitors. The tribunal put to the applicant its concerns as to the genuineness of the documents and sought the applicant's comment with respect to recent country information about Turkey and northern Cyprus.
At the hearing there was some discussion about whether or not the applicant had ever supplied an original of the indictment and summons, and following the hearing the applicant solicitors wrote advising that an original had been previously forwarded to the tribunal. At the hearing the tribunal member had previously stated that the document previously forwarded to the tribunal was a photocopy.
On 24 June 2005 the tribunal handed down its decision of 31 May 2005, affirming the delegate's decision to refuse to grant a protection visa.
The decision of the tribunal
The applicant's claims were summarised by his counsel as follows:
a)His father and uncle had issues with the Turkish government as his father was involved in a trade union, and his maternal uncle had been sent to jail for his involvement in a clinical party known as TIKP;
b)From 1990 the applicant had been an active supporter of asset-Hacibec Tas, and Alevi cultural association in Cyprus, who he was introduced to by a representative of the PKK;
c)The applicant's village in Cyprus was small and the applicant was known to be of Kurdish ethnicity;
d)That in 1995 the applicant was detained and tortured by plain clothes police;
e)In 1998 the applicant, together with three friends, helped members of the PKK to cross the border into Greece, as a result of which he and friends were arrested and detained;
f)At celebrations on 21 March 1999 the police raided the gathering and he and his mother were taken to the police station and detained and tortured;
g)On 14 November 1999 he was involved in organising a peaceful demonstration when the police were conducting surveillance and also conducted a ride seizing Kurdish publications;
h)On 21 November 1999 the applicant escaped from northern Cyprus by paying a bribe to border guards;
i)The applicant made broad claims that there was discrimination and persecution of Alevi Kurds in Turkey and northern Cyprus.
The tribunal member proceeded on the basis of accepting the matters found in the first tribunal decision, and thus started from the position of accepting many of the claims of the applicant, including
a)That he was of Kurdish ethnicity and of Alevi faith;
b)That Alevi Kurds have suffered discrimination in the past in both Turkey and northern Cyprus;
c)The applicant had been the subject of arbitrary arrest and detention in the past is result of his ethnicity and religion;
d)That he was a member of Haci Bektas for a considerable time and may have been the subject of harassment and arrest May and physical harm during detention, in the past in Turkey;
e)The applicant assisted Kurds, including supporters of the PKK, to cross the border between northern Cyprus and the Republic of Cyprus;
f)That in the past the applicant had suffered discrimination and harm because of his Kurdish ethnicity which may have been sufficient to constitute serious harm under the Convention.
The tribunal member did not accept that the applicant would be at risk of harm as a result of his father or uncle's previous political involvement. The tribunal concluded that the human rights record of Turkey and northern Cyprus had improved in recent times and that the applicant would not now face real chance of serious harm if he returned to Turkey.
The tribunal did not accept that he would suffer discrimination as a result of his religion, based upon country information. The tribunal did not accept that the applicant was imputed to be a supporter of the PKK, nor that he was at risk of harm because of his membership of Haci Bektas.
Significantly, the tribunal gave no weight to the indictment and summons, finding that it was not a genuine document. The tribunal member rejected as contrived the correspondence sent from the applicant’s father and friend.
The tribunal rejected the applicant's claim regarding his assistance of PKK supporters to cross the border on the basis that aiding and abetting people to cross the border is a criminal offence of general application, and on the basis that there was no evidence the authorities were aware that the applicant had done this.
Apprehended bias
The first ground of review relied upon by the applicant was that there was an apprehension of bias on the part of the tribunal member.
In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, Gleeson CJ, and Gaudron and Gummow JJ explained the test for apprehended bias as follows:
27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
28. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
In Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, Kirby J discussed the different requirements for establishing actual bias and apprehended bias saying:
111. Until recently it was extremely rare for parties before Australian courts to assume the task of establishing "actual bias" on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish "imputed", "apparent", "apprehended", "suspected", "notional" or "deemed" bias ("imputed bias"). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that "in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it". A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief.
The law is well summarized in the judgement of Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, where her Honour said:
25. The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. "[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned": see Ex parte H, at 427. Further, their Honours posited, at 434-5, that:
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
26. As in the present case, Ex parte H concerned the Refugee Review Tribunal. The Court held that, in the circumstances, having regard to the transcript of the hearing before the Tribunal, "a fair-minded lay observer or a properly informed lay person" might infer that there was nothing that the prosecutor could say or do "to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa": see Ex parte H, at 435 and compare Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, at 71 per McHugh and Gummow JJ. In so holding, the Court referred to "the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events": see Ex parte H, at 435.
27. In Ex parte H, the Court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at 435:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question ... .
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
Later in the judgement, her Honour went on to say:
77. In order to determine whether, in this case, there was disqualifying bias, the Court must carefully consider all the circumstances in order to assure itself that the test is by a fair-minded lay observer. Accordingly, the Court must consider the nature of the Tribunal, the issues before it, and the conduct of all relevant participants in the proceeding.
78. It must be borne in mind that the method of the Tribunal is inquisitorial. That is, the Tribunal controls the fact-finding process, the examination of witnesses and the identification of issues. A person appearing to give evidence is not entitled to be represented or to examine or cross-examine any witness: see s 427(6). The Tribunal may, and commonly does, invite an adviser to make oral submissions towards the end of a hearing, or in writing after the hearing. Whilst an applicant may request the Tribunal to obtain oral evidence from a nominated witness, and the Tribunal must have regard to the request, the Tribunal is not required to comply with it: see s 426(3). The Tribunal has a wide discretion as to how it conducts a hearing. All hearings must, however, remain private and confidential, although, as will be plain, they are tape-recorded.
79. It must also be borne in mind that an applicant generally has a right to appear before the Tribunal to give evidence and present argument before a decision adverse to him or her is made: s 425(1). The hearing is, therefore, designed to afford (1) an opportunity to the applicant to give evidence and to put argument in support of his or her claim; and (2) an opportunity to the Tribunal to investigate the matter further. In their book, Refugee Law in Australia (Oxford University Press, 2003) Roz Germov and Francesco Motta said, at p 79:
At the hearing the Tribunal may also seek the applicant's response to information obtained by the Tribunal that is relevant to the issues raised in the review. In addition, the applicant may be given an opportunity to provide any further information to the Tribunal that is relevant to their claims. The Tribunal will determine the timeframe in which any such information is to be lodged. The applicant will be given an opportunity to respond to relevant and significant material that is, or may be, adverse to their case. It will be for the presiding member, in the individual circumstances of each case, to consider the appropriate stage of the review at which adverse material is to be brought to the attention of the applicant and the manner in which this should be done ... .
80. It is proper for the Tribunal to attempt to focus an applicant's mind on relevant matters, including matters adverse to his or her claim: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 591 per Northrop, Miles and French JJ. Plainly enough, in this case, the Member was required to test the applicant's claims and, in relation to credit, was entitled to have regard to discrepancies between the evidence given by him on 13 June 2002 and to the Tribunal, as earlier constituted.
81. Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283.
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
A series of examples of cases that have not crossed that boundary can be found in VAUU v Refugee Review Tribunal [2002] FCA 417, M51 of 2005 v Minister for Immigration Anor [2006] FMCA 606, SZELD v Minister for Immigration Anor [2006] FMCA 74, SZHGE v Minister for ImmigrationAnor [2006] FMCA 275, SZERDAnor v Minister for ImmigrationAnor [2006] FMCA 15, SZHFC v Minister for Immigration andAnor [2005] FMCA 1922, and SZEPV v Minister for Immigration Anor [2006] FMCA 71.
In this case the applicant principally relied upon three extracts from the transcript of the hearing. Counsel for the applicant also asked that I listen to the tape of the hearing before the Tribunal. I have listened to that tape, noting the tone of the member’s voice. There were many silences between questions and what sounded like regular sighs by the member. His tone and delivery where very clear and strong, if not strident - reminiscent of a talkback radio announcer. Whilst the oral communication appears to me to be at the outer end of reasonable conduct by a tribunal member in hearings such as this, the tone and delivery alone were not sufficient to found a claim for apprehended bias. However, the tone and delivery must also be considered in the context of the content of exchanges and the decision ultimately made by the member.
The first of the transcript extracts reads as follows:
Member: Look, the applicant has been on notice as to the credibility or the genuineness of this document for a long time. You have been on notice about the concerns relating to this document and you have made no attempt to provide the original.
Interpreter: No one told me, no one advised me to do that, I mean, maybe, I do not know, my adviser may have been sort of advised –
Member: Yes, look, that is the reason why the court sent this back to me. This is the reason why we are here. This is the only reason why you are here in front of me today, because of this document. The only reason. There is no other reason why you are here. I am happy to examine all your claims but the reason why the court sent this case to the Tribunal was because you weren't given the opportunity to address the concerns that the Tribunal had in relation to this document. You have been on notice about the concerns the Tribunal has had about this document since June 2002 when the original Tribunal decision was handed down. A previous Tribunal member found that this was not a genuine document. Why should I change my mind?
Interpreter: I can tell you it’s genuine.
Member: Okay.
Interpreter: That document is genuine. I gave the genuine copy to my adviser. I do not know where it's gone. I get later the correspondence that it is in English and I cannot sort of understand fully.
Member: All right, look, let us go on. I mean, you have not provided me with the original document. Right? Let us look at some other issues that might prove that this is a genuine document. Okay. Let us look at some other matters that might prove to me it’s genuine.
The member’s comment that there is no reason for the case to be returned to the tribunal, other than the issue about the letter is unfortunate. It gives the impression that the member may consider the evidence of the applicant on this issue in isolation, rather than in the context of the case. However, taken in context it is apparent that the tribunal member accepted all of the positive findings of the previous member (see pages 12 to 15 of the transcript), and explored the issues that the applicant had failed on before the first tribunal member. In this sense, the applicant had the advantage of the member taking as a starting point acceptance of much of what he had claimed.
The second extract was in these terms:
Member: Look, this is very strong evidence that no other document exists. You have not provided any documents. You have had every opportunity. You have been in Australia six years --5 1/2 years. If this document existed you had every opportunity to -- if any other document existed all the original of this document existed, you had every opportunity to get them. You have chosen not to use that opportunity.
Interpreter: Well, I did not know that.
Member: Yes, you did. You knew about it since 2002.
Interpreter: In 2000 my lawyer did not even come to the hearing with me.
Member: You managed to appeal to the Federal Court on this very matter.
Advisor: Sorry, the appeal was not on this matter at all.
Member: Okay. Well, you are saying that the court decided on it anyway?
Advisor: No, they were consent orders but agreed to between the parties on the basis of a decision which was handed down at the start of last year.
Member: No, you’re right, you’re right but still there has been a lot of time since then.
Advisor: Well, actually the decision of the Refugee Review Tribunal only makes a very cursory mention and it does not actually question it.
Member: I Disagree. I think the decision is very, very clear and I’ll point you to –
Advisor: Its page 28, the seven –
Member: Yes, page 28.
Advisor: There is seven lines on the summons and it does not mention the originality -- it does not mention –
Member: it finds that the summons is not genuine.
Advisor: Yes, but it does not mention why. That is why - that is why we’re back here.
Member: Well, I am giving you the opportunity now.
Advisor: But you are actually saying that he should have done this over the last two years.
Member: Yes I am. I am strongly saying that. The genuineness of the document was questioned. The reason why it is not - the reason why it is being questioned is spelt out in the hearing and it is also spelt out today.
Advisor: Where is it is spelt out?
Member: Well, the genuineness of the document has been questioned. I’m questioning it now on a number of grounds.
Advisor: Well --
Member: I’m spelling it out to you now. It is not an original document --
Advisor: Well, with respect, if the problem is that you do not have the original, he should be given an opportunity to get that.
Member: He’s got a week.
Advisor: Okay.
This is a very robust passage, both in written form and when listening to the tape. However, the member did ultimately accept the advisor’s submissions, and allow time for the document to be sent to the tribunal. The letter that followed was in very brief terms, simply alleging that the previous solicitor had already sent in the original. There was nothing before the tribunal to the effect that the previous solicitor had sent an original document, in the sense of not being a photocopy, or the original document in the sense of it being the document produced by the applicant. No further time was sought, or other enquiries suggested.
When listening to the tape it is also apparent that at one point the member identifies the document in his files and shows it to the advisor. At page 18 of the transcript the member invites the advisor to inspect the document received by the tribunal – when listening to the tape the shuffling of papers consistent with offering inspection of the document can be heard.
The tribunal member identified (at page 20 of the transcript) that the summons did not appear to be signed by a judge or registrar even though there was provision on the form for such signatures. This coupled with the only versions of the document in anyone’s possession being photocopy versions, clearly lead to concerns as to the genuineness of the document. These issues were apparent on the fact of the document.
Later in the tribunal hearing there an exchange between the tribunal member and the advisor. The transcript reads as follows:
Interpreter: Well, that is what I am trying to say. If you are Kurdish they will automatically regard you as being involved with PKK.
Member: No, they won’t. If they did that, you wouldn’t be here. You’ve told me that already.
Interpreter: To be a PKK, like, a PKK - to be involved with PKK or a PKK member, all you have to be is Kurdish that then there are Kurds who work for the government, yes. There are Village guards, they are Kurdish, but what happens, they kill other Kurdish people. The Kurdish people kill other Kurdish people.
Member: But, look, look, look, look, you are now stretching the bounds of incredulity. There are millions of Kurds in Turkey, literally millions. Not all of them are accused of being in the PKK and not all of them are under suspicion. Only a very small minority are part of the PKK. What you are saying is simply not true. Not every Kurd is accused of being in the PKK.
Interpreter: Yes, they are accused of -
Member: They are not. Not every Kurds accused - the vast majority of Kurds live very peacefully in Turkey today.
Interpreter: Yes, there are some who live - at some stage in Turkey. 30,000 Kurds have been -- were killed. All the 1500 villagers were evicted.
Adviser: Sorry.
Member: I mean, look –
Adviser: Sorry.
Member: You are not - look, you are not to whisper to an applicant halfway through him finishing a sentence.
Adviser: Well, I am happy to -
Member: I know you are his advisor that there is a better way to advise the applicant --
Adviser: Sorry.
Member: - than to interrupt halfway through an answer and whisper to him. I mean, that does not assist the Tribunal.
Adviser: I am sorry, what would you prefer I do?
Member: I would prefer you allow him to finish the answer and if you want to ask your question, ask me to interrupt my train of thought or otherwise raise the issue with me. I mean, that is thoroughly unprofessional.
Adviser: Okay.
Member: It also causes me a lot of concerns about the nature of the evidence we’re about to hear. You cannot prompt the applicant.
Adviser: Okay.
Member: But to whisper to him halfway through his answer -- he had not even concluded -
Adviser: Look (indistinct) answer.
Member: -- his answer. Okay? Look, it concerns me greatly that act that you just did. Just because I am looking down writing on the page, do not assume that I am not watching and I am not paying attention. Your actions concern me greatly. They will not prejudiced your client’s situation but your actions are thoroughly unprofessional, and I will have to strongly consider how I deal with what I just witnessed in relation to you, not in relation to the applicant. Please make that clear to the applicant. It is thoroughly unprofessional.
Adviser: I apologise.
Member: Okay. I am just going back to makes notes on this. Just give me one second, please. Look, let us go back. You are telling me about the 30,000 Kurds who were killed and 1,500 villagers that had been evicted.
Interpreter: Yes.
Member: That is what I got up to before we were interrupted. Now, Mr Strong, you want to tell me what you wanted to say or --
Adviser: I was just --
Member: -- do you want to just leave that be?
Adviser: I am happy to tell you what I was trying to --
Member: Sure.
Adviser: I was just trying to keep him on the point. I was concerned that he was not telling you that he was also assisting people cross the border --
Member: Right.
Adviser: -- which might sort of --
Member: Fine. Well, I mean, I think the crossing the border issue has been fully canvassed in previous hearings. I think they had been findings that are not necessarily detrimental to your client’s case. You want me to revisit it?
Adviser: I’d -- sorry.
Member: I mean, I’m happy to revisit it but --
Adviser: I was just worried that he was -- that he wasn’t identifying that that was part of the reason that he was being persecuted.
Member: Well, I think he’s identified it. I thought that issue had been dealt with.
Adviser: Okay.
The exchange between the member and the applicant was robust, and more in the style of cross-examination than enquiry. However, a member is entitled to test an applicant’s evidence on key points. This was a central issue.
The comments of the member to the advisor were in strong terms. However, the conduct concerned was prompted by whispering to the applicant whilst the member was making notes. The circumstances leading to this exchange are very different to that described by Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 at [42] to [44].
I must also take into account that the member accepted other parts of the evidence of the applicant, for example:
a)The tribunal member accepted that Kurds still suffer some level of discrimination in Turkey (pages 32 to 33 of the transcript);
b)The member asked questions as to Haji Bektash, as requested by the advisor (page 34 of the transcript);
c)The member did give the advisor an opportunity at the end of the hearing to indicate anything else that he though ought to be addressed, as he did for the applicant (page 36 of the transcript).
When considering the matter as a whole I am not satisfied that the applicant has made out a case of apprehended bias. Whilst the member could well have conducted the hearing in a more sensitive way, and taken more care in the words used this case is not one that crosses the boundary, in the manner seen in cases such as VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
Assessment of the nature of the changes in Turkey and Northern Cyprus
The applicant argued that it was not open to the tribunal to be satisfied that changes or improvements in Turkey and Northern Cyprus were such that there was no longer a real chance that the applicant would be persecuted for a convention reason. The applicant relied upon the comments of Mason CJ in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 that:
17. … In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear had dissipated. While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality. This is especially the case when the applicant cannot, any more than a court can, be expected to be acquainted with all the changes in political circumstances which may have occurred since his departure. Those changes are a matter which, if they were to be relied upon, needed to be established and stated by the delegate in reasons.
In many cases the tribunal must weigh the evidence of an applicant against country information. In this case that was a difficult task as there was an acceptance of past harm that may have amounted to persecution. However, all of this harm occurred before or during 1999. The hearing was in 2005, some five and a half years later.
The tribunal member taxed the applicant with his concerns that the risk of harm had passed, and dealt with the country information at length in the decision.
Ultimately it was a question of fact for the tribunal. The material does not indicate that the member failed to understand the seriousness of this issue, or to properly consider the issue. I see nothing impermissible in drawing the inference that a failure of country reports to list discrimination of a particular type (that is featured in the reports if alleged) as being evidence that discrimination is not occurring.
I find that this ground does not provide an appropriate ground for judicial review.
Effect of laws of general application
The final issue raised by the applicant was with respect to the finding by the tribunal member that (at page 33 of the tribunal decision):
The applicant has expressed some fears to being wanted by the authorities in Northern Cyprus because he assisted people to illegally cross the border from Northern Cyprus into the Republic of Cyprus when he was in military service. The aiding and abetting of people to cross this border is a criminal offence. The prosecution of a person for a criminal offence is not a ground for protection under the Convention.
Whilst the tribunal accepted that the applicant did assist Kurds to cross the border to the Republic of Cyprus (page 21), the tribunal did not make any finding that the authorities were aware of this. At least, with respect to the imputation that he was involved in the PKK, the tribunal made positive findings that the authorities had not drawn this view. The applicant had claimed that the authorities were unaware of his conduct in this regard.
It is well established that enforcement of laws of general application, in a non-discriminatory fashion, will not bring an applicant within the convention: "Applicant A" & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4
In this case there is no suggestion that the border control laws are not of general application. The tribunal found that the applicant was not at risk of persecution as a result of being Kurdish, nor that he is suspected of being involved in the PKK. No other basis arises from the material to provide any foundation for a finding that he may be subject to prosecution of this law in a discriminatory fashion, for a convention reason.
I am therefore not satisfied that this ground in made out by the applicant.
In the circumstances I therefore dismiss the current application for review.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 4 August 2006
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