Yigitoglu v Minister for Immigration and Multicultural Affairs

[2000] FCA 1006

FEDERAL COURT OF AUSTRALIA

Yigitoglu v Minister for Immigration and Multicultural Affairs [2000] FCA 1006

ALI YIGITOGLU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO N 409 OF 2000

JUDGE:         BEAUMONT J
DATE:           7 JULY 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 409 OF 2000

BETWEEN:	ALI YIGITOGLU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	7 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 409 OF 2000

BETWEEN:	ALI YIGITOGLU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	7 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. Before the Court is an application for an order of review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm a decision of the delegate of the Minister refusing to grant a protection visa to the applicant.  The application for an order of review was filed on 27 April 2000.  It seeks review of the decision of the Tribunal given on 20 April 2000.  In the application the grounds for review are not stated, instead it is said that details will be sent later.  The applicant has at all times been unrepresented.  The applicant did, in fact, by facsimile transmission, send from the Australian Turkish and Kurdish Community Co‑operative, a facsimile transmission to the Court dated 27 June 2000 (now exhibit A) in which submissions are made in a document signed by the applicant. 

2. In order to understand the issues before the Court, it will be necessary to refer to some of the finding and reasoning in the Tribunal reasons for decision, as follows.  By way of background, the Tribunal noted that the applicant is a citizen of Turkey who arrived in Australia on 4 January 2000.  On 5 January 2000 he lodged an application for a protection visa under the Migration Act 1958 and it has been noted the Minister’s delegate refused to grant that visa.  The Tribunal, however, noted that when the applicant arrived in Australia he was detected attempting to enter the country using a tourist visa which had not been issued to him.  That visa had been removed from another a passport and inserted into the applicant's passport.

3. The Tribunal referred to the claims and evidence before it at some length and it is not practicable to do any more than refer to some of this analysis.  The Tribunal noted that the evidence before it included a record of interview taken on arrival at the airport, written submissions in support of the application, a record of a subsequent interview with an officer of the Department together with written submissions filed in support of the application for review and oral evidence given to the Tribunal by the applicant. 

4. The applicant was represented before the Tribunal initially by an officer of the New South Wales Legal Aid Commission.  At the hearing itself, the applicant was represented by Mr Paul Fergus.  As has been noted, at all times the applicant has been unrepresented in this Court. 

5. The Tribunal noted that at the interview at the airport, the applicant stated that he left Turkey because Australia has very good human rights and a nice life style;  because he wanted to apply to be a refugee;  and because he could not move around or express himself freely in Turkey.  He stated that he is an Alevi, that Alevis are sometimes persecuted and that in Turkey he cannot practise what he believes in.  In this interview, the applicant stated that he did not know anything about having a visa that had been tampered with.  He claimed that he had personally attended the Australian Embassy, completed the application and paid for the visa. 

6. The Tribunal noted that in his application for a protection visa, the applicant stated he was twenty three years of age, a Turkish national, that he had been born in Erzerum and that he spoke Turkish and Kurdish.  He had lived in Erzerum from 1989 until 1993, then lived in Istanbul from 1993 until 1996, before doing military service between 1996 and September 1997 at which time he returned to Erzurum where he remained until August 1998 before returning to Istanbul.  In March 1999 the applicant returned once more to Erzerum where he remained until January 2000. 

7. The Tribunal noted that the applicant stated he had attended school and high school and after leaving school had worked as a construction worker before doing military service.  He had thereafter worked casually as a miner and as a construction worker, but had been unemployed between April 1999 and January 2000. 

8. The Tribunal noted that in the application for a protection visa the applicant claimed that he had left Turkey because of the abuse he was receiving by reason of him being Kurdish and Alevi;  that as a Kurd he had great difficulty living amongst Turks because of the actions of the PKK and other Kurdish organisations;  that he had been constantly rejected, isolated, abused, tortured and captured several times;  that he was constantly under pressure;  that the police were always picking him up, taking him away and torturing him and that the torture had left him with physical and psychological scars.  The Tribunal went on to note other statements in material and documentation provided by the applicant to the Tribunal including the further departmental interview, and material in a further statutory declaration from the applicant.  It is not practicable to even attempt to summarise this material. 

9. The Tribunal’s reasons extend over some forty-eight pages but I think it is a fair summary to state that what appears above was repeated in the other documentation I have mentioned.  I should, however, add that the Tribunal was provided with a report prepared by a psychologist and the psychologist noted the applicant’s history as including claims that the applicant had been detained and interrogated on many occasions and that he had been arrested, accused of supporting the PKK and was tortured in gaol.  The psychologist’s report concluded that the applicant was suffering from post-traumatic stress disorder (PTSD) and “opined that there is no indication that he is exaggerating his experiences”. 

10. The Tribunal then proceeded in its reasoning to summarise the oral evidence given by the applicant at the hearing.  This is done, again, in considerable detail and I will not attempt to summarise it.  Again, it is a fair summary to state that in this oral evidence the applicant again makes claims along the lines of the claims previously mentioned.  Again, I should, however, make specific reference to the psychiatric assessment presented to the Tribunal. 

11. The Tribunal noted that following the hearing, Mr Fergus arranged for the applicant to be assessed by another psychiatrist.  Again the report of the psychiatrist notes the applicant’s history as including claims that the applicant had been detained because of his involvement with a group that had “somewhat leftist ideology” and was reading banned books;  that he had been detained and beaten after protesting in relation to certain incidents;  that he had been dismissed from employment because he was a union representative;  that he had been detained in Askale and charged with aiding and abetting the PKK;  that he had been beaten and sexually assaulted in prison and detained for a total of 123 days, escaping from jail on 31 December 1999.

12. The psychiatrist noted a report of symptoms which the applicant claimed to have developed during detention in Turkey.  The report of the psychiatrist states that it is likely that the applicant’s experiences of further detention in Australia have perpetuated his symptoms of PTSD but that they did not cause the symptoms.  The psychiatrist stated that the symptoms were not as severe as they were in Turkey and soon after arriving in Australia.  The psychiatrist stated that the applicant was “a truthful historian who gave a plausible account of his experience”.  The Tribunal noted the statement of the psychiatrist that the applicant had developed a mistrust of authority and became extremely fearful when informed that an interpreter made available was from the Turkish Consulate. 

13. The psychiatrist, the Tribunal noted, went on to say that any inconsistencies in the applicant’s story which indicate falsification –

    “do not sufficiently take into account the nature of his psychiatric condition and its effect on his capacity to provide a coherent and consistent story at certain times.”

14. The Tribunal then noted the submissions made by Mr Fergus on behalf of the applicant to the effect that the applicant was a credible witness;  that the inconsistencies of his evidence are explained by his PTSD;  that he was Kurdish and Alevi;  that he was detained under suspicion of supporting the PKK for approximately sixteen weeks immediately before he came to Australia;  that there was a real chance he would be arrested if he returned to Turkey;  and if arrested, there was a real chance that he will suffer serious harm. 

15. The Tribunal then considered what it described as “independent evidence”.  This evidence consisted of reference material including Department of Foreign Affairs and Trade (“DFAT”) country profile, and reports from the United States Department of State.  In particular, the Tribunal referred to and analysed a body of documentation published by the United States Department of State, DFAT, United Nations High Commissioner for Refugees and many other international organisations, and academic studies dealing with the issues arising out of the existence of a large Kurdish population in Turkey. 

16. The Tribunal in particular noted the current situation in Turkey –

    “… in which the Turkish authorities have been locked in a guerilla conflict with the forces of the Kurdish separatist organisation, the PKK, in the disputed south east of Turkey since 15 August 1984.”

17. The Tribunal noted that, for instance in 1997, Amnesty International reported that hundreds of people were detained as prisoners of conscience and that indeed many members of the Kurdish minority had been killed extrajudicially.  The Tribunal analyses this material at great length.  I have referred to only part of it by reason of the size and detail of that treatment. 

18. In its finding and reasons the Tribunal noted that the credibility of the applicant’s evidence was central to its decision and the Tribunal delegate said:

    “I consider that most aspects of Mr Yigitoglu’s evidence were internally inconsistent, inconsistent with the independent evidence, vague, confused and implausible.  To a greater or lesser extent, he provided a different version of his experiences in Turkey at every stage of the process:  when he arrived in Australia, when his cousin filled in his application for a protection visa, when his first solicitor prepared a statutory declaration, when he was interviewed by the delegate, when his second solicitor prepared a further statutory declaration, when he spoke to a psychologist and a psychiatrist and at the hearing.  Such is the internal inconsistency and implausibility of Mr Yigitoglu’s evidence that I am led to conclude that he fabricated most of his claims in an attempt to bring himself within the definition of a refugee.  I do not accept Mr Yigitoglu’s evidence as credible or reliable.  In reaching this conclusion, I have had regard to the explanations provided by Mr Yigitoglu for the inconsistencies in his evidence, the psychological and psychiatric reports and the submissions made by Mr Fergus.”

19. The Tribunal, in its findings, then proceeded to give detailed reasons why it formed an adverse view on the credibility of the applicant’s claims.  Again, it is not practicable to attempt to summarise this;  it is sufficient to say that the Tribunal indicated a considerable number of inconsistencies in the evidence which were identified in a substantial detail.  In the course of this part of its reasoning the Tribunal did note that the applicant would have been stressed during the airport interview.  It did, however, point out that during this interview although the applicant claimed he could not express himself or practice his religion in Turkey;  he neglected to so much as suggest that he had been detained and tortured, that he had escaped from gaol, that he had been involved in political activities, that he had assisted the PKK or that he feared he would be executed if he returned to Turkey.

20. The Tribunal referred to, and analysed the evidence of, the two psychiatrists and said:

    “As a member of the Tribunal I have had considerable experience in questioning asylum seekers who have been subjected to torture and trauma.  I accept that people who have been traumatised may have problems remembering the details of all of their claims and may give evidence which appears inconsistent.  However, in this case, there was nothing in the way Mr Yigitoglu gave evidence to suggest that his memory was impaired by trauma. Indeed, as noted above, in relation to an incident of detention which allegedly occurred in Istanbul in 1995, Mr Yigitoglu indicated that he could not forget the date on which this occurred because it had been so important to him.  However, prior to his statutory declaration of 13 March 2000, Mr Yigitoglu had never previously suggested that he was arrested on this occasion.  Further, Mr Yigitoglu did not appear distressed whilst giving evidence.  Nor did he … give any indication that he had difficulties with concentration.  Whatever psychological problems Mr Yigitoglu may currently be experiencing, there was nothing in the way he gave evidence at the hearing to indicate that he had difficulty understanding or responding to questions.”

21. The Tribunal went on to say that, in all the circumstances, given the major inconsistencies in the applicant’s evidence, his failure to make claims at the earliest opportunity and the general unsatisfactory and unconvincing nature of his evidence overall, it could not be satisfied that the applicant had ever been detained.  The Tribunal said that it was of the view that the applicant had fabricated his claims in relation to detention “in an attempt to create for himself the profile of a refugee”.

22. The Tribunal stated that it did not accept that he escaped from prison, that he was kidnapped from prison or that he was irregularly released from prison on bail as a result of the payment of a bribe, as he had claimed.  Nor, the Tribunal said, did it accept that the applicant was ever involved with the PKK or any other political organisation, or that he was perceived as being involved in these organisations. 

23. However, the Tribunal went on to say that whilst it rejected the applicant’s claims in relation to political activity and detention, it nevertheless accepted that he is an Alevi.  The Tribunal then turned to consider whether he had a well-founded fear of persecution for that reason.  However, the Tribunal noted that the applicant’s evidence at the hearing did not suggest that he was prevented from practising his religion or that he was restricted in his religious practice in any way.  The Tribunal said that on the independent evidence before it, which the Tribunal accepted, it was not suggested that Alevis are prevented from practising their religion in Turkey.  

24. The Tribunal went on to express its doubts on the applicant’s claim that he was Kurdish, but the Tribunal was prepared to accept that he is of Kurdish family background.  The Tribunal noted that the independent evidence established that Kurds who publicly or politically assert their Kurdishness and who are suspected of supporting Kurdish separatism, are at risk of persecution in Turkey.  The evidence did not suggest that all Kurdish people in Turkey are at risk of persecution and those Kurds who are seen as not supporting Kurdish separatism are not at risk of persecution merely because they are Kurdish. 

25. The Tribunal went on to say it did not accept that the applicant had ever assisted the PKK or has ever been suspected of assisting the PKK, or that he has ever been detained.  It did not accept that he is perceived as promoting Kurdish separatism or that he would be so perceived if he returned to Turkey.  It followed, the Tribunal said, that it was not satisfied that the applicant faced persecution in Turkey merely because of his family background.  The Tribunal concluded its reasons as follows:

    "Overall, I accept that Mr Yigitoglu is an Alevi.  However, I am not satisfied that this gives rise to a well-founded fear of persecution.  I am prepared to accept that he has a Kurdish family background, but I am not satisfied that he identified as a Kurd in Turkey, or that he was perceived as a Kurd who supported the PKK or Kurdish separatism.  I consider that the chance he would be perceived in this light if he returned to Turkey is remote.  I am not satisfied that Mr Yigitoglu has a well-founded fear of persecution arising out of his Kurdish ancestry.  I am not satisfied that Mr Yigitoglu has ever been involved in political activities or that he has ever been detained.  I do not accept that Mr Yigitoglu was of any adverse interest to the Turkish authorities at the time he left Turkey, or that he is of any interest to them currently.  I am not satisfied that Mr Yigitoglu has a well-founded fear of persecution arising out of his application for a protection visa in Australia.  Mr Yigitoglu has not made any other Convention claims and none are suggested on the evidence for me.  I am not satisfied that Mr Yigitoglu has a well-founded fear of persecution for a Convention reason.”

26. As I have indicated, the applicant did provide a submission by facsimile transmission.  In that submission the applicant stated that he had been subjected to various forms of abuse and mistreatment including torture and detention in Turkey.  He stated that he had been arrested and detained on several occasions and placed in prison without trial;  that his main fear was extrajudicial execution.  He stated that his family in Turkey organised his escape from prison by giving a bribe to one of the guards on duty and that they also organised a passport with an unauthentic Australian visa, again with the assistance of bribe.  In the submission the applicant reiterated that he had sleep disturbance and concentration problems and that his health is further deteriorating. 

27. Although unrepresented, the applicant did appear on the hearing before me and addressed the Court through an interpreter.  He again restated his previous claims.  He emphasised that because he was an Alevi he was at risk of being arrested, perhaps killed.  He again claimed that as a Kurd he was unable to worship and follow his beliefs.  He challenged the Tribunal’s conclusion that he had not assisted or been involved with the PKK. 

28. Having considered the material, I cannot detect in the process of reasoning, or in the expression of the findings made by the Tribunal, any error of law.  The matters are factual, to a large extent depending on assessment of credit.  The settled course of authority in the High Court of Australia makes it clear beyond question that this Court has no authority to trespass into the fact finding functions of the Tribunal.  This limit on the Court’s authority to adjudicate has been reinforced by the legislative statement of the Parliament of the Commonwealth of Australia which makes it clear beyond question that this Court has no authority to interfere in factual matters.  They are matters for the resolution of the Tribunal.

29. That being so, it must follow, in my opinion, that the application should be dismissed and I so order, with costs. 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             28 July 2000

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 July 2000
Date of Judgment:	7 July 2000