Yilan v MIMA
[1998] FCA 422
•28 APRIL 1998
FEDERAL COURT OF AUSTRALIA
CATCHWORDS
MIGRATION - application for review of decision of Refugee Review Tribunal (“RRT”) refusing refugee status - whether fresh evidence not before the RRT can be admitted in proceedings before the Court - whether merits review - whether error of law - whether RRT failed to set out reason for findings or look at “critical” issues.
Migration Act 1958 (Cth), ss 420(1), 430(1)(d), ss 476(1)(a), 476(1)(g), 476(2)(a), (b), 476(4)(b)
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Full Court, Wilcox, Burchett, North JJ, 23 December 1997, unreported), cited
Kemal Ozberk, and Ors v The Minister for Immigration and Multicultural Affairs (Marshall J, 19 January 1998, unreported) cited
Joseph Francis Aravind Fernando v Minister for Immigration and Multicultural Affairs (Finn J, 5 November 1997, unreported), applied
Dharam Raj v Minister for Immigration and Ethnic Affairs, (Davies J, 18 July 1996, unreported) applied
Minister forImmigration and Ethnic Affairs v Singh 144 ALR 284, applied
CIGDEM YILAN -v- MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
VG 234 of 1997
O’CONNOR J
SYDNEY(HEARD IN MELBOURNE)
28 APRIL 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 234 of 1997
BETWEEN:
CIGDEM YILAN
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
O'CONNOR J
DATE OF ORDER:
28 APRIL 1998
WHERE MADE:
SYDNEY (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
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
VICTORIA DISTRICT REGISTRY
VG 234 of 1997
BETWEEN:
CIGDEM YILAN
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
O'CONNOR J
DATE:
28 APRIL 1998
PLACE:
SYDNEY (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT
HER HONOUR:
This is an application by Cigdem Yilan to review a decision of the Refugee Review Tribunal (“RRT”) made on 30 April 1997 when it affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicant.
The grounds of the application are:
that procedures required by the Migration Act 1958 (Cth) (the “Migration Act”) in s 420 to be observed by the RRT in connection with the making of the decision were not observed (s 476(1)(a)).
the decision involved an error of law being an incorrect interpretation of
s 476(1)(e) of the Migration Act.
the decision involved an error of law incorrectly applying the law to the facts as found by the RRT (s 476(1)(e)).
The applicant seeks an order that the decision of the RRT made on 30 April 1997 be quashed and a declaration that on 30 April 1997 the applicant was a person who had a well-founded fear of persecution and was entitled to the grant of a protection visa. Alternatively, the applicant seeks an order that the application for determination of her refugee status be referred to the RRT to be further determined according to law.
Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:
420 (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bund by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.”
“476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
...
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
...
(2) The following are not grounds upon which an application may be made under subsection (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”
It is a criterion for the grant of a protection visa that at the time of the application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the family unit of a person who is also an applicant and has made such a claim. It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
Article 1A(2) of the Convention as amended, defines a refugee as any person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...”
Factual Background
The applicant is a 22 year old Kurdish woman, a citizen of Turkey. She arrived in Australia in July 1995, travelling on a Turkish passport. Her application for a protection visa was lodged with the Department of Immigration and Multicultural Affairs on 11 October 1995. The application was rejected by a delegate of the Minister on 30 July 1996. The applicant applied for review of that decision to the RRT on 22 August 1997. The application for review was rejected by the RRT and her application for a protection visa refused on 30 April 1997.
RRT’s Decision
The RRT made the following findings:
“The applicant was not a credible witness, I do not accept that she was arrested and tortured on two separate occasions due to her involvement with a student organisation, nor her involvement with Dev Yol. ...
I do not accept that she was involved in Dev Yol to the extent which she claimed, nor do I accept that she faced persecution in the past based on this. ...
I do not accept that she would have remained in Turkey for over a year after the torture she describes had it in fact occurred. ...
That is, I find she was not persecuted prior to her departure from Turkey.
The applicant claimed that she has been involved with radio ... and community associations in Australia. ... but there is no evidence that the authorities are interested in this. There is not a real chance that the applicant would be persecuted for this were she to return to Turkey. ...
I find that there is not a real chance that she would be persecuted on the basis of her political opinion, actual or imputed were she to return to Turkey.
I do not accept that she had been persecuted in the past on the ground of her ethnicity ...”
The RRT accepted that the applicant was a member of a student organisation which organised events celebrating Kurdish nationalism and that these events were harshly suppressed by Turkish authorities.
The RRT did not accept that although the applicant was able to go about her life without interference from March 1994 until her departure in July 1995, the police started looking for her, trying to arrest and/or summons her, only after that departure.
The RRT accepted that the Siwas incident, and the demonstrations in its aftermath, produced shock waves in Turkey and around the world. There were reports about the incident in a very wide range of news media. The lack of any mention of large demonstrations in Ankara (as claimed by the applicant) in the newspaper reports read by the decision-maker, or arrests, indicated strongly to the RRT that there were no such demonstrations or arrests, at least in the days immediately following the Siwas incident.
If the applicant had truly been detained and tortured on the two occasions that she had spoken of, the RRT did not accept that she would have remained in Turkey for over a year after the second incident.
The RRT states:
“ ... It is of course, accepted that the applicant does not need to ‘prove’ his case. However, in this case, the Tribunal is confronted with an applicant who is not credible, and a story that is not plausible - it cannot find as fact things which clearly appear to it to be fictions.”
The RRT then said that an applicant needs to show something more than a general abuse of human rights in his country of nationality. The Tribunal must be satisfied that there is a real chance that the applicant will face persecution on one, or a combination, of the Convention grounds. It is not the case that a person faces a real chance of persecution throughout Turkey solely based on his ethnicity, that is, simply because she/he is a Kurd.
The RRT concluded:
“Based on the evidence available to me, and the findings I have made on that evidence, the applicant does not satisfy the definition of refugee in that:
Although she is outside her country of nationality, and is unwilling to avail herself of the protection of that country, she does not have a well-founded fear of persecution, in the sense that there is no real chance that she will be persecuted for a Convention reason if she returns to Turkey.”
Notice of Motion to admit new evidence
At the hearing of this matter counsel for the applicant sought to tender an affidavit of Paul Joseph White sworn on the 26 February 1998, to which was attached three exhibits, relying on a decision to admit fresh evidence, made by Wilcox J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, 23 December 1997, Full Court, Wilcox, Burchett, North JJ), on the basis that if there were material to establish that the inquiries made by the decision-maker in this matter were inappropriate, inadequate and incorrect it could be admitted for the purpose of demonstrating substantial inujustice towards the applicant in relation to proceudres before the RRT.
The respondent initially objected to the tender of the affidavit on any basis. The applicant then submitted that the affidavit should be received and read down to exhibit only material concerning a demonstration in Ankara. None of this material was authenticated by the applicant (as would usually be the case if the material were to be used in court proceedings). I am not prepared to admit and consider the affidavit material sought to be tendered. In this case the circumstances are quite different to that which faced the Full Court in the Sun Zhan Qui case. Here the material tendered was to demonstrate the alleged inadequacy of the inquiry made by the decision-maker as to a demonstration in Ankara where the applicant said she was a participant and was subsequently arrested and tortured. It did not concern a failure to inquire at all as in Sun, but was concerned with the quality of the inquiry or the nature of the inquiry made. If a Court were to consider such evidence in the course of judicial review, even for the purpose of evaluating an inquiry, it would, as Marshall J said in Kemal Ozberk, and Ors v The Minister for Immigration and Multicultural Affairs (unreported, 19 January 1998);
“be that the Court viewed the new evidence as evidence upon which the RRT would be most likely to revisit the issue of the authenticity of the first warrant and come to a different view on that factual issue”.
It would, in my view, amount to the Court engaging, albeit indirectly, in merits review.
Submissions of the Parties
The applicant made submissions about four issues at the hearing in support of the grounds of review. Firstly, that the decision-maker should not have rejected evidence which had been relied on by the applicants concerning a notice and summons which had been tendered by the applicant at the RRT this rejection amounted to substantial injustice to the applicant and a breach of Section 420 of the Act.
Secondly, the decision-maker should have asked herself the question, were inquiries in relation to the genuineness of the documents necessary? The failure to ask that question amounted to an error of law.
Thirdly, the decision-maker in deciding that it was highly probable that there was no demonstration in Ankara at the time the applicant said that such a demonstration had taken place had done so as a result of an inadequate inquiry about the issue. This amounted to substantial injustice to the applicant and a breach of Section 420 of the Act.
Fourthly, the decision-maker’s treatment of the expert evidence of Dr Gardiner, a general practitioner, who provided a report to the Tribunal amounted to legal error because the Tribunal referred in its decision to medical tests in respect of a condition. This was, it was submitted, an opinion which she had no expertise to make.
In relation to all these matters, the respondent relied, in the first instance upon the remarks of Finn J in the case of Joseph Francis Aravind Fernando v Minister for Immigration and Multicultural Affairs (unreported, 5 November 1997), where His Honour made the following comments:
“The applicant was represented at the hearing before the Tribunal. Secondly, it is not for the Tribunal go out to make its own inquiries for the purpose of making the applicant’s case for him Dharam Raj v Minister for Immigration and Ethnic Affairs, (unreported, 18 July 1996, Davies J). Thirdly, it is not the function of this Court to engage in merits review.”
This passage aptly summarises my view of the case before me. The majority of the grounds for review and submission put are based on the proposition that the Tribunal has a positive duty to assist the applicant establish her case.
Is there a duty to inquire?
In relation to the duty, if any, to inquire and to authenticate documents, the relevant principle is found in a decision of the Full Court in Minister forImmigration and Ethnic Affairs v Singh 144 ALR 284, in which the majority (Black CJ, von Doussa, Sundberg and Mansfield JJ) said at pages 290 to 291:
“Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within s 476(1)(a), the question is whether the obligation to act according to substantial justice requires the tribunal to make an inquiry of the nature suggested here. The way in which the tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. ...
... Section 427(1)(d) empowers the tribunal to require the secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the tribunal’s role in cases that come before it for review is not a passive one although the circumstances in which the tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.
In our view the respondent has fallen short of showing that the tribunal’s failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice. The tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. ..
Although we have concluded that there may be circumstances in which the tribunal’s obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge’s general proposition that, where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the tribunal was under a duty to verify in such cases. In a particular case the tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect.”
In this case only copies of the documents relied upon were provided to the decision-maker who came to the conclusion that the documents were not what they purport to be. The decision-maker relies upon background material and the view she formed as to the credit of the applicant. Having formed the view that the applicant was not deeply involved in the activities in which she claimed to be involved, then the likelihood of these documents coming into existence, in the way that they purported to come into existence, was found to be remote and was rejected by the decision-maker.
The legal error it was submitted which was made in relation to this matter is that the Tribunal Member failed to ask herself the question should I have the documents authenticated? The respondent submitted that, as the material is copied material, it is not able to be authenticated in the same way as original documents might be by the Document Evaluation Unit. The respondent also submitted that the applicant was represented at all times and that views about the authenticity of the document had already been expressed by the Departmental Officers and these were known to the applicant. There was ample opportunity for the applicant to provide any further material and explanations as to the authenticity of the document at the hearing before the Tribunal.
I consider that the decision-maker was entitled to make the finding that she did without any question or further inquiry as to the authenticity of the document. The bases of that finding are properly dealt with in the decision and this is not a case in my view where to fail to ask oneself the question as to whether a further inquiry should be conducted amounts to a breach of substantial justice.
A second aspect of a duty to inquire was raised in relation to a demonstration in Ankara about which the applicant gave evidence. The affidavit material which was sought to be tendered before me purports to be reports from Turkish newspapers of a demonstration of the kind referred to by the applicant before the decision-maker. In the decision under review the decision-maker did refer to newspaper reports of demonstrations in Turkey at that time. Her inquiries did not reveal that there had been any reports of demonstrations in Ankara. Counsel for the applicant submits that the decision-maker looked in the wrong place and that using particular newspapers, like the Irish Times, in the decision demonstrated an inadequate inquiry about this matter. In my view, this is no more than an invitation to the Court to conduct merits review. As I said previously, it is a situation quite different to that in the Qui case because the applicant is attacking the quality of the inquiry and not the fact that the inquiry was or was not made. It may be that if the decision-maker had had access to other newspapers, she may have come to a different view on some issue. However, that is not a matter that is able to be agitated in the process of judicial review. There are of course other places for this applicant to take any relevant material for reconsideration of her case. This decision-maker, relying on the material before her, was entitled to make the findings that she did and made no error of law.
The final submission of the applicant that the decision-maker, without expertise, came to a conclusion or expressed an opinion as to the medical condition of the applicant, is, in my view not made out. A proper reading of the decision - in particular paragraphs 51 and 52 - would conclude that the decision-maker rejected Dr Gardiner’s evidence on two grounds; (a) she was not a specialist psychiatrist, and (b) the “factual substratum” of the diagnosis, ie a traumatic event was not accepted as having occurred. The decision-maker was entitled to come to the conclusion she did and no error of law was made in so doing.
The application is dismissed with costs.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Connor
Associate:
Dated: 28 April 1998
Counsel for the Applicant: D.P. Holdenson Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the Respondent: R. Downing Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 March 1998 Date of Judgment: 28 April 1998
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