Turay Altintas & Anor v The Minister for Immigration & Ethnic Affairs [1997] FCA 15 (23 January 1997)

CATCHWORDS

IMMIGRATION - refugee status - protection visas - well-founded fear of persecution - reasons of race and political opinion - Turkish citizens of Kurdish ethnicity - whether Tribunal in error of law in applying real chance test or in its understanding of persecution - whether law incorrectly applied

Migration Act 1958 , s5, s31, s36, s40, s45, s65, s476, s496

Migration Regulations, sch2, 2.03, 2.04 and 2.05

Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421

Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 42

Luu v Renevier (1989) 91 ALR 39

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 136 ALR 481

Minister of State for Immigration, Local Government and Ethnic Affairs v Che Guang Xiang (Full Federal Court, 12 August 1994, unreported)

Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375

Reg v Home Secretary; ex parte Sivakumaran [1987] UKHL 1; [1988] AC 958 1

Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183

TURAY ALTINTAS and NURAY ALTINTAS v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NO WAG 33 OF 1996

R D NICHOLSON J

PERTH

23 JANUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 33 OF 1996

B E T W E E N: TURAY ALTINTAS

First Applicant

and

NURAY ALTINTAS

Second Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 23 JANUARY 1997

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application for review be dismissed.

2. The applicants pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 33 OF 1996

B E T W E E N: TURAY ALTINTAS

First Applicant

and

NURAY ALTINTAS

Second Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: R D NICHOLSON J

DATE: 23 JANUARY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

The applicants seek review pursuant to s476 of the Migration Act 1958 ("the Act") of "a judicially-reviewable decision" of the Refugee Review Tribunal ("the Tribunal") which affirmed the decision of a delegate of the respondent refusing them protection visas on the grounds they are not refugees as provided for by the Act.

The first applicant lodged an application for a protection visa on 15 September 1994. The second applicant applied with the first applicant as a member of the family unit who did not have her own claim to be a refugee. The first applicant will therefore be referred to as "the applicant".

The applicant was notified by letter dated 2 February 1995 of the delegate's refusal of the application. On 21 February 1995 he sought review by the Tribunal of the delegate's decision. The Tribunal affirmed the delegate's decision on 13 March 1996.

Statutory framework

Section 45 of the Act requires a non-citizen wanting a visa to apply for a visa of a particular class. Provision is made for classes of visas in s31 of the Act which provides that the regulations may prescribe criteria for a visa or visas of a specified class. Section 40 authorises the regulations to provide that such visas may only be granted in specified circumstances. Section 65 of the Act requires the Minister (or a delegate of the Minister appointed under s496 of the Act) to grant a visa if satisfied the criteria prescribed by the Act or the regulations have been met.

Section 36 of the Act provides for a class of visas known as a protection visa. The criterion for that visa is that "the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". These terms are defined by s5 of the Act as follows:

"Refugees Convention" means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951;

Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967."

Migration Regulations 2.03, 2.04 and 2.05 provide that the criteria applicable to classes of visa, the circumstances in which visas may be granted and the conditions applicable to such visas are as set out in sch2 to the Regulations. In that schedule item 866 prescribes criteria for protection visas. Item 866.211 prescribes as a criterion that an applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and makes specific claims under that Convention or claims to be a member of the same family unit as a person making such claims and applying for a protection visa. Item 866.111 provides that "Refugees Convention" means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

Article 1A(2) of the Refugees' Convention as amended by the Protocol defines "refugee" as a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

Tribunal's reasons

The reasons of the Tribunal commenced by examining the legislative and Convention framework.

The Tribunal then examined the elements of the Convention definition of "refugee" as considered by members of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. There it was held that a fear of persecution is well-founded if the material presented shows there is "a real chance" persecution may occur if the person were returned to the country of nationality. Reference was also made to Minister of State for Immigration, Local Government and Ethnic Affairs v Che Guang Xiang (Full Federal Court, 12 August 1994, unreported).

The Tribunal accepted the relevant date for considering whether a person is a refugee for the purposes of the legislation is the date of determination of the application.

Turning to the background of the applications the Tribunal stated the applicant is a national of Turkey whose application for refugee status is based on "race" and "political opinion". Of Kurdish origin from Ankara, he is aged nineteen years and single. He completed five years schooling in Turkey and subsequently worked there mainly as a cloth manufacturer. Later he worked as a paint and repair worker in the automotive industry. In July 1990 he arrived in Australia on a visitor visa, accompanied by the second applicant (his sister) who was aged seventeen years at the time of the Tribunal's decision.

The Tribunal's reasons continue:

"The applicant claims that he left Turkey because he was taunted and mistreated on account of his Kurdish origins. He claims that he was taken to the police station on several occasions and that he was physically mistreated. He said that he was held in custody on three occasions, twice for a few hours and once for three days. He said that those three periods of detention occurred in the same year and that the last occasion on which he was detained was when he was aged 16 and a half years.

He claims that his period of detention for three days followed his arrest for putting up some posters. He said that of the 5-6 young people who were involved in putting up posters, three of them were detained. He said that the first poster read "Long live the PKK". He could not recall exactly what was on the other poster, but it read something like "Down with the regime". He said that during his period in custody he was not asked any questions about his political involvement or whether he and his comrades had any connection with the Kurdistan Workers' Party (PKK)."

The Tribunal also stated the applicant claimed he had found out two months prior to the Tribunal decision that one of his friends was in detention, to which he attributed the political activity of that person in jointly pasting posters with him. He claimed police often searched for him while he remained in Turkey and therefore he did not always live at home.

He further claimed he was able to leave Turkey only because he paid a bribe of five million Turkish lire to police who had some involvement with the issuing of passports.

Although the applicant had previously claimed he would experience difficulty finding work in Turkey, he did not seek to rely on that claim at the hearing before the Tribunal.

The applicant also stated that his impending military service did not pose any problems and was not relevant to his application.

The applicant claimed before the Tribunal that he had no word from his family in Turkey for two months although he recently heard his sister there had left school and his family had moved.

The applicant's sister initially did not wish to give evidence to the Tribunal but at the conclusion of the applicant's evidence did so. Her evidence was the last letter she had received from a family member in Turkey was three months before the Tribunal hearing and that she had been in touch with her family every fortnight or so. She corroborated her brother's evidence of the recent communication telling them the family had moved. She further stated that once when her brother was away from home, some unidentified people approached her while she was on her way to school and warned her to look after herself.

The applicant's uncle also gave evidence before the Tribunal. It was to the effect that Kurdish people in Turkey were discriminated against and looked down upon. He said the applicant had told him he was involved with a political group (one associated with the Kurdistan Workers' Party - "the PKK") and had been arrested and badly mistreated by police after he was caught producing pamphlets and writing slogans on walls. He had also recently learned that the applicant's family had moved. The Tribunal described him as "vague and evasive" when asked when any of the family in Australia had last had contact with family members in Turkey, eventually saying the last communication was seven to eight days prior to the hearing before the Tribunal.

The Tribunal then turned to consideration of the evidence and to making of findings. These were as follows:

(1) Taunts and mistreatment

In the light of country information to which the Tribunal referred, it was satisfied the applicants encountered taunts and discrimination on the basis of their ethnicity.

(2) Police contact

The Tribunal accepted the applicant was detained for questioning on a few occasions up to the age of sixteen and a half years and that he was physically mistreated on such occasions which all occurred in the same year. He was never charged with an offence. His evidence was accepted that the last difficulty he had with police was approximately a year and a half prior to his departure from Turkey.

(3) Political activity

The applicant's evidence concerning the content of posters that occasioned his detention was generally vague. He had stated he was not asked about any political involvement when questioned by police. Notwithstanding the alleged reasons for his apprehension, he conceded to the Tribunal the group of which he claimed to be a member had no formal political affiliation. Therefore the Tribunal found there was not a "real chance" the applicant was detained "for a Convention reason".

(4) Friend's political activity

In view of the fact the applicant had encountered no problem at the hands of the authorities for a significant period leading up to his legal departure from Turkey and having in mind what the Tribunal considered was his unsatisfactory evidence concerning his alleged political activity, the Tribunal found it fanciful that any recent detention of his friend was related to their alleged joint activity in pasting posters three years earlier. The Tribunal in reaching this view relied on country information to the effect that putting up posters or carrying banners were basically of little interest to Turkish authorities.

(5) Payment of bribe

The Tribunal accepted the applicant had paid a bribe when obtaining his passport but said there was evidence such payments are common in Turkey. Because he was not detained "for a Convention reason" and did not come to the attention of authorities in the year and a half prior to his departure, the Tribunal concluded any bribe was not made "for a Convention reason".

(6) Mobility to avoid police

As to claims by the applicant that he often moved address as police were searching for him, the Tribunal said this was at odds with the single residential address he gave when initially applying for refugee status. The reasons then record the Tribunal found the claim was "truthful" which appears to be a misprint for "untruthful" to be consistent with the reasoning at this point of the Tribunal. In any event, the Tribunal concluded the applicant was in regular employment and there was ample opportunity for police to locate him had they wished to do so. With respect to this finding the applicant contends it should be observed the single residential address given in the application was responsive to the requirement to "give details of all addresses outside Australia where you have lived for twelve months or more in the last ten years", which precluded reference to addresses where a person had lived for less than twelve months.

(7) Unavailability of employment

In relation to what the Tribunal said was the resiling by the applicant from an earlier claim that he would not find employment if returned to Turkey, the Tribunal found there was no basis in any available country information for a finding that there is a real chance the applicant would be denied employment "for a Convention reason".

(8) Military service

As to the applicant having expressed no anxiety about inquiries that may have been made in relation to his proposed military service or of the prospect of military service itself, the Tribunal found there was no basis in any available country information that there was a real chance in the circumstances of the case that his prospective military service raised a Convention ground.

(9) Mobility of family

The Tribunal found an inconsistency between the applicant's evidence and his sister's evidence as to the regularity of communication with the family. In view of that and what it considered to be the evasiveness of the applicant's uncle on the point, the Tribunal was not satisfied the whereabouts of the applicant's family had become unknown. Additionally, the Tribunal found that in view of the length of time since the applicant came to the attention of authorities and the period of his absence from Turkey, any recent change of address by the applicant's family was unconnected with any continuing police interest in the applicant himself.

(10) Warning to sister

As to the evidence of the second applicant of the warning given to her, the Tribunal found it did not disclose a Convention ground.

(11) Absence of Convention ground

The Tribunal then found that notwithstanding evidence of discrimination against Kurdish people in Turkey and of continuing abuse of human rights, country information available to it indicated the applicant did not face a real chance of persecution at all or on the basis "of race or political opinion". The Tribunal therefore concluded that in considering all the circumstances of the case, including taking them cumulatively, there was not a real chance the applicant and therefore his sister would face persecution for any reason if they were now to be returned to their country of origin.

Grounds of review

Section 476 of the Act proscribes the grounds upon which review may be sought. The only one relied upon for the applicant at the commencement of the hearing was:

"(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 founded by the person who made the decision, whether or not the error appears on the record of decision."

Later in the hearing application was made to rely on other grounds but, for reasons which will appear, the application does not now require resolution.

Error of law: incorrect interpretation of "real chance"

The first ground of review is that the decision involved an error of law in that the Tribunal incorrectly interpreted the applicable law by failing to consider that a 10 percent chance of persecution for a Convention reason occurring, even an unlikely chance or a remote chance, can be sufficient to satisfy the real chance test. It is contended for the applicant the Tribunal misapplied the test by taking the approach that "a real chance" had to be somewhere near the 50 per cent mark.

In discussing Chan's case in its reasons the Tribunal noted that the High Court in Chan had observed that the "real chance" test discounts a "far-fetched possibility" (at 429, per McHugh J) and "what is remote or insubstantial" (at 407, per Toohey J). It noted that at 389 Mason CJ observed that:

"...the expression a "real chance"...clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring...If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well- founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring."

The case for the applicant on this point is that Mason CJ commenced his reasons by agreeing with the reasons of McHugh J. However, the Tribunal did not cite that portion of McHugh J's reasons at 429 where he said:

"The decisions in Sivakumaran and Cardoz-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza- Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol."

McHugh J was there referring to the decisions in Reg v Home Secretary; ex parte Sivakumaran [1987] UKHL 1; [1988] AC 958 and Immigration and Naturalization Service v Cardoza-Fonseca [1987] USSC 32; (1987) 480 US 421 at 440.

McHugh J relied on the decision in Cardoza-Fonseca to support the proposition that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur and for the supporting proposition that a 10 per cent chance of persecution may lead to a well-founded fear of it. Nevertheless it is apparent from his reasons that the test to be applied is whether there was "a real chance" that the applicant would be persecuted. That is a test not dependant upon any particular percentile although open to be established "even though there is only a 10 per cent chance" in circumstances where there is evidence to support "a real chance". McHugh J was not stating in his reasons that "a real chance" would always be established by "a 10 per cent chance" but rather that "a well-founded fear of persecution" could result from "a 10 per cent chance" if the evidence in the particular circumstances supported the finding.

There is no basis for finding that the Tribunal misinterpreted the reasons of McHugh J at 429, it having made express reference to them. Likewise the Tribunal was clearly conversant with the contents of the reasons in Chan and the ratio decidendi of the decision that it was necessary for it to find whether there was "a real chance". The ratio decidendi of Chan did not require the Tribunal to consider whether a 10 per cent chance of persecution was established. Rather the Tribunal was required to consider whether, on all the evidence before it, "a real chance" was established. Having regard to the reasons as a whole, I do not consider that the Tribunal misinterpreted the test or that it took the approach that "a real chance" had to be somewhere near the 50 per cent mark.

The alleged failure of the Tribunal to properly grasp the real chance test is said to be supported in the use by the officer conducting the Tribunal review of the word "would" as in the following passage:

"THE REVIEW OFFICER: You see, the only power I have, though, in determining refugee status is in determining refugee status and that requires that there be evidence not just of discrimination but of a real chance of persecution which would mean in your situation, for example, that because you are Kurdish you would be denied access to all work or access to even a primary school education or that you would encounter some other serious harm because of your race."

It is contended the repeated use of the word "would" indicates the Tribunal was looking for evidence that the matters referred to "would" be the case as opposed to "might" or "could" be the case. This of course, is not the language of the reasons of the Tribunal and in my opinion, even with that contention in mind, it does not assist the Court to come to a different view to that already reached. I return to this submission in another context later in these reasons.

Error of law: interpretation of "persecution"

In support of the contention that the Tribunal did not properly interpret the term "persecution", the case for the applicant points to the following findings of fact in the reasons of the Tribunal:

"(a) there was evidence of discrimination against Kurdish people in Turkey, and of continuing abuses of human rights;

(b) there is considerable evidence that Kurds are disadvantaged in Turkey, especially in cultural activity;

(c) the applicants had encountered discrimination on the basis of their ethnicity;

(d) the First Applicant had been detained by the police on a few occasions up to the age of 16 and a half years, was physically mistreated on such occasions, and was never charged with an offence;"

In its reasons the Tribunal said the following of the concept of persecution:

"The Court stated [in Chan] that the term "well-founded fear of being persecuted" denotes that the applicant must have a subjective fear and that the fear must have a basis in reality. At 396 Dawson J stated that:

"The phrase "well-founded fear of being persecuted"... contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear."

The term "persecuted" is not defined in the Convention or the Protocol. Addressing this issue McHugh J stated at 429 that:

"The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment."

and, at 430:

"A singe act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reasons against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution.""

For the applicant it is contended the reasons of McHugh J in relation to "persecution" state the following:

"(a) a notion of persecution involves selective harassment;

(b) it is not necessary that the individual should be the victim of a series of acts and that a single act of oppression may suffice;

(c) a threat of harm as part of a course of systemic conduct directed for a Convention reason will suffice;

(d) the threat need not be the product of any policy of the government;

(e) the harm threatened need not be the loss of life or liberty;

(f) measures "in disregard" of human dignity may constitute persecution;

(g) persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination;

(h) restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution of imposed for a Convention reasons;

(i) persecution involves matters of degree."

It is then submitted the Tribunal gave no consideration to the matters set out in pars(e) to (i). It is contended for the applicant that if the Tribunal had not given an overly narrow interpretation to "persecution" and, in particular, refused or failed to recognise that selected discrimination and abuses of human rights can constitute persecution, it would have concluded the evidence showed the possibility of persecution of Kurds.

The Tribunal referred to the United States Department of State Country Reports on Human Rights 1994 and to the statement therein at 34 that "Kurds who are long-term residents in industrialized cities in Western Turkey have been, for the most part, assimilated into the political, economic and social life of the nation". Following that passage is the following statement in the Reports which the case for the applicant suggests raises a case for persecution of Kurds:

"The 1991 repeal of the law prohibiting publications or communication in Kurdish legalized some spoken and printed Kurdish communications. Under the political parties law, however, all discussion that takes place at political meetings must be in Turkish. Kurdish may be spoken only in "nonpolitical communication". Court proceedings (and all government functions, including public education) continue to be conducted in Turkish, disadvantaging those Kurdish-speaking defendants who have to rely on court-provided translators. Moreover, materials dealing with Kurdish history, culture, and ethnic identity continue to be subject to confiscation and prosecution under the "indivisible unity of the State" provisions of the Anti-Terror Law."

It was preceded by a statement that "many human rights abuses are targeted at Kurds who insist on publicly or politically asserting their Kurdish ethnic identity, and their supporters".

In its reasons the Tribunal also referred to the Department of Foreign Affairs and Trade ("DFAT") profile on Turkey noting the following extracts:

"Many Kurds are integrated into the broader Turkish community. Some hold senior positions in Government and the armed forces, but to an extent this involves the submerging of their Kurdish identity...

...some ten to twelve million Kurds live in the poor, mostly rural, provinces of Turkey's south-east. In Hakkari province, for example, per capita income is one-tenth that of Istanbul's. The Turkish Government is trying to redress this imbalance through the Central Anatolia's major infrastructure project... long term Government strategy is to bring prosperity and stability to the Kurdish region (p27).

...it is difficult to conclude that Kurds throughout Turkey are discriminated against per se. It may be more accurate to say that the present dispute is leading to community polarisation which potentially places even a "moderate Kurd" in a less favourable position" (p31- 32)."

The case for the applicant on this ground is that the above materials not referred to in the reasons but in the papers before the Tribunal, as well as the matters referred to by it, should have been accepted by the Tribunal as suggesting the possibility of persecution of Kurds and that the Tribunal did not avert to that possibility or given proper consideration to it. This, as has been said, resulted from its overly narrow interpretation of the concept of "persecution".

These contentions for the applicant appear to be based on reasoning to the effect that because one incident may amount to persecution, the Tribunal must have misinterpreted the concept of persecution in not finding there was persecution in the circumstances before it. They overlook the essential function of the Tribunal which is to consider on all the evidence whether persecution is established. There is no basis for concluding the Tribunal misinterpreted the concept it was applying.

What the contentions really address is whether the Tribunal should have weighed the evidence to different effect. It must be borne in mind that "when conflicting information available to the minister's delegate relates to some past event... the attribution of greater weight to one piece of information as against another, or an opinion that one version of the facts is more probable than another, is not necessarily inconsistent with the correct application of the Chan test": Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 136 ALR 481 at 498 per Brennan CJ, Toohey, McHugh and Gummow JJ. At 491 the same members of the Court said that:

"... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration for the merits of the decision."

Error of law: incorrect application - failure to consider reasons of race or membership of a social group

It is undisputed that the delegate considered the applicant's application based only on persecution for reasons of political opinion. It is submitted for the applicant that the Tribunal misapplied the concept of persecution by also confining it to that consideration.

The citation by the Tribunal from Minister of State for Immigration, Local Government and Ethnic Affairs v Che Guang Xiang (supra) to the effect that "denial of fundamental rights or freedom, or imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidating the expression of political opinion will constitute persecution" cannot, in the context of the extensive citation by the Tribunal from Chan, support the submission that the Tribunal acted upon the concept of persecution confined to the intimidation of the expression of political opinion alone.

Nor do I consider that a full reading of the reasons of the Tribunal leads to the conclusion that it applied the concept of persecution only in relation to political opinion. In commencing its reasons the Tribunal described the application for refugee status as one based "on race and political opinion". In reaching its third conclusion, concerning political activity, the Tribunal referred to "a Convention reason" when it may have been more apt for it to have referred to political opinion forming a Convention reason. The reference is to "a Convention reason" in respect of the payment of a bribe, the unavailability of employment and the requirement of military service were not inappropriate as encompassing both race and political opinion. The same is true in respect of the finding relating to the warning to the second applicant. The conclusion of the Tribunal referred expressly to "race or political opinion".

This ground of review is supported by reference to the applicant's application in which he asserts that mistreatment is experienced by him as a Kurd and because he belongs to "an active splinter group of the PKK". This it is said made apparent that the applicant's case required consideration in relation to reasons of race, membership of a particular social group and political opinion.

The manner in which the Tribunal referred to and dealt with evidence brought before it relating to the Kurdish people in Turkey demonstrated that it was having regard to considerations of race or membership of a particular social group; that is, the ethnicity of the applicant.

Error of law: incorrect application: balance of probabilities approach

For the applicant it is contended that while purporting to apply the real chance test, the language of the reasons of the Tribunal demonstrates that it fails to do so because it required proof on the balance of probabilities. This is supported particularly by reference to the conclusion of the Tribunal reading as follows:

"In considering all of the circumstances of this case, including cumulatively, the Tribunal finds that there is not a real chance, as defined by the High Court in the Chan case that the applicants would face persecution for any reason if they were now to be returned to their country of origin."

It is contended the use of the word "would", as opposed to "could" or "might", belies the correct application of the real chance test. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 445 Einfeld J in the Full Court referred to statements of a Tribunal at issue in that case where the word "would" was used as reflecting a repudiation of the "real chance" test in favour of a balance of probabilities. It is submitted Guo was not overruled by Wu.

In Wu in the Full Court (as in Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375) it was held when the delegate in that case used the expressions "give more weight to" and "give greater weight to" she had approached the matter as if it involved the establishment of a state of affairs as being more probable than not. That view was not upheld on appeal to the High Court. Wu was a case where the term "balance of probabilities" nowhere appeared within the reasons. At 498 the majority in the High Court said:

"As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred, is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event."

The majority also expressed the view that when the decisions of the delegates involved a question of "satisfaction" as to refugee status, the term "give greater weight to" appeared even more innoxious.

It is in the context of this reasoning that the use of the word "would" must be considered. Here its use follows a reference to "a real chance, as defined by the High Curt in the Chan case...". The use of the word is qualified by that and other references to what was said in Chan. In my opinion this ground is not made out.

Error of law - incorrect application: failure to speculate

In Wu at 507-8 Kirby J said:

"...the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong?" [Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441 per Einfeld J]. Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, insofar as they are said to give rise to a "real chance" of persecution."

For the applicant it is contended the Tribunal fell into error of law in applying the real chance test in a way which failed to do this.

The contention for the applicant is that this failure by the Tribunal in the application of the real chance test is supported by absence of consideration by it of two matters. Firstly, it is said it failed to consider the applicant's evidence that he feared detention and mistreatment for Convention reasons in the future independently of anything that might have happened in the past. Secondly, it is said it failed to consider his statement that once he turned eighteen and was no longer regarded as a child by the authorities he was likely to be subjected to detention and mistreatment.

It is the case that the reasons of Kirby J, although concurring in the result with the majority, are not the reasons of the majority. The majority reasons in relation to the references to greater weight have been explained in relation to the preceding ground.

In my opinion a reading of the reasons of the Tribunal does not disclose an abandonment of the process of looking into the future "which is the essence of the Chan test": Wu at 495. The Tribunal made abundantly clear it understood the real chance test and no inference can properly be drawn that it erred in the manner contended.

This ground is supported by reference to matters of fact which it is said the Tribunal misconstrued. No argument has been made that these issues properly come before this Court in the light of the provisions of s476 of the Act.

Error of law - incorrect application: regard to the particular situation of the applicants

Next it was contended for the applicant that the Tribunal did not utilise country information in a proper manner. This occurred, it is submitted, because the Tribunal was selective in the passages it quoted and looked at the position of Kurds generally without considering the personal circumstances of the applicants. Also the DFAT cable was dated October 1993 and was subject to annual and other updates. It is contended the Tribunal therefore failed in the exercise of its inquisitorial function to have recourse to current country information and reports dealing with the position.

In supplementary submissions the case for the applicant sought to develop these considerations further. However, later advice on behalf of the applicant was that it is not contended for him there was further relevant country information available to the Tribunal as at February 1996. The consequence is that there is no evidence of any material in relation to Kurdish people in Turkey on which these grounds could be argued. The situation here is quite different from that in Luu v Renevier (1989) 91 ALR 39 and Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183. It follows it is unnecessary to consider whether the applicant should have leave to argue these grounds under other heads of s476 of the Act.

Conclusion

For these reasons I conclude the Tribunal did not err in law. The application for review should therefore be dismissed.

I certify that this and the preceding 17 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 23 January 1997

APPEARANCES

Counsel for the Applicant: Mr A O Karstaedt

Solicitors for the Applicant: Leonard Cohen & Co

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government

Solicitor

Date of Hearing: 13 September 1996

Date of Judgment: 23 January 1997