Federal Court of Australia

This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal"). The applicant is a Turkish citizen and is twenty-seven years old. He was granted a visitors visa in Ankara on 9 November 1995 and arrived in Australia on 25 November 1995. By an application lodged on his behalf on 13 February 1996 by his solicitors, the applicant applied for a protection visa. On 22 July 1996 a delegate of the respondent ("the Minister") determined that the applicant was not a refugee. On 15 August 1996 the applicant applied for review of that decision by the Tribunal. The Tribunal was not satisfied that the applicant was a refugee, and on 18 March 1997 it affirmed the decision not to grant him a protection visa.

The applicant claimed to fear persecution for reasons of race, namely his Kurdish ethnicity, and religion, namely his membership of the Naksibendi dervish order. The challenge to the Tribunal's decision rests on two aspects of its reasons touching the applicant's claims based on his Kurdish ethnicity. First, it is contended that the Tribunal misapprehended the nature of the key incident that is the genesis of his fear of persecution. It is said that the Tribunal thus failed to observe a procedure required by s 420(2)(b) of the Migration Act 1958 ("the Act"), namely, to "act according to substantial justice and the merits of the case." Secondly, it is submitted that the Tribunal's findings were vitiated by its failure to "accept" proof provided by two documents in circumstances where their authenticity could have been investigated under

s 427(1)(d) of the Act. This is said either to involve an error of law of the kind referred to in

s 476(1)(e) of the Act, or to be a further failure to observe the procedure required by

s 420(2)(b).

The "Applicant's Case" was described under that heading in paragraphs 19-39 of the Tribunal's reasons for decision. The key passages for present purposes are the following:

"23 He said that he worked at the biscuit factory as a driver between 1993 and 1995, but could not give more specific dates. In the application form he stated that he had worked until January 1995, at the hearing he could not or would not say. He said he stopped work because of incidents, but was unwilling or unable to say whether he stopped work before or after the fight which lead to his arrest.

24 The applicant spoke of harassment of Kurdish civilians by Turks, for example where a soldier was shot by the PKK, the soldier's family came to the Kurdish area where the applicant lived and stoned the houses. The applicant was unable to give a date for this incident, however it appears quite credible.

25 Possibly the same incident is described by the applicant when he stated that there was a fight between Kurds and Turks at which the police refused to help the Kurds who were the victims of a racist attack. The Kurds, the applicant among them, had to protect themselves, which they did with stick [sic] and other weapons. A number of people were injured during this incident. According to the applicant, only Kurds were arrested, about 30 of them, including the applicant. He was tortured at the time, was beaten, had his head shaved and had water dripped on him. I note there is nothing to indicate that only the Kurds involved in this brawl were arrested, it is simply the applicant's impression. He did not know everyone who was arrested.

26 He could not give a date for this, but said it was after his marriage, and when his older child was possibly a year or 18 months old. The child was born in April 1994, so on this dating the incident occurred between April 1995 and November 1995, when the applicant left Turkey.

27 He said he was held for 3 days and then released. He was charged with being a member of the PKK, he was charged with being a terrorist. The hearing was adjourned and he was released without bail.

28 As a result of this experience the applicant was frightened, and decided to leave Turkey. He sold his land after he was released. It is not clear how much he sold the land for, at one point he said he sold it for the same amount as he paid for it, at the hearing he said he sold it for less than he paid for it. He tried to go to Germany, by land via Romania.

29 His passport was issued in February 1995. When asked he said it was issued after his arrest; he obtained it by bribery, it took him a week. At the Departmental interview he indicated that he was arrested in March 1995. He also said that he had had a previous passport. He was able to get a visa for Romania by applying for it, but he could not get one for Germany. He left for Romania on 14 April , on [his] first attempt to get to Germany.

30 When asked about problems between his release from detention and his departure for Romania he stated that he had had to report to the police every four days, and that on each occasion he was detained for most of the day and tortured. I note that he made no mention of this on previous occasions.

31 He stayed in Romania for about 2 months, and was arrested trying to cross the border into Hungary. He was sent back to Turkey by bus. He was able to contact a police friend in his home town from the Customs post. With his help he was able to pass through Customs without being arrested or harassed. I note that the applicant's home town is in South East Turkey, while the land border towards Romania is in the North West. The applicant said that the police had been looking for him while he was in Romania.

32 He mainly stayed in Istanbul after his return from Romania - he was there for about 2 months, he simply went back to Karaman for about a week. He hoped that the police would forget about him if he stayed away for long enough.

33 He went to Romania a second time, but was again unable to reach Germany. He was again returned to Turkey. On this occasion he spent 10 days in Istanbul and 20 days in Karaman. A friend in Karaman helped him obtain his Australian visa in 10 days. While in Karaman he stayed with a relative. He was not himself arrested again, but his father and his wife were arrested and beaten. His family eventually told the authorities that he had left Turkey and applied for the refugee status.

34 The applicant bribed a policeman friend in Karaman and that policeman was able to organise for the applicant to be able to leave from the airport in Istanbul.

35 Since he left his family have been beaten. His family sought the help of a solicitor, who told them he could not help because the applicant is a Kurd.

Under the heading "Discussion", the Tribunal then said:

"40 Overall, I do not accept the applicant as a credible witness. He exaggerated and embellished his story as he thought would be helpful to him.

41 I do not find the story as told by the applicant credible for different reasons - it is not plausible internally; the story was not consistent; and it is not congruent with country information.

42 I do not accept that he would be able to contact a policeman in Karaman, in the South-East, when he was crossing back into Turkey from Bulgaria, in the North West. I do not accept that the policeman in Karaman would have been able to organise for his passport to be extended and for him to be able to leave through Istanbul airport if he were really wanted by the police, in the sense that he had only been released during an adjournment of a criminal trial. See Department of Foreign Affairs and Trade (DFAT) cable AN26288, of 9 October 1996:

Passports are issued by the security Department of the Ministry of the Interior. A Turkish citizen applying for a passport must provide a copy of his or her birth certificate, four photographs, a document establishing his or her occupation and complete the requisite application form . . .

A passport may be refused, or issued [sic] be delayed, under certain conditions. These include the existence of a warning by the Ministry of the Interior concerning the Applicant, if a court case against the Applicant remains pending . . .

Passports may be denied to people suspected of breaking the law or of questionable political background. (We were advised that it would be impossible for such people to obtain a passport by bribery as their status would be known to everybody).

43 I find it not believable that he would have been able to depart from Turkey three times and re-enter twice without problems if he were wanted by the police because he was not reporting to them.

44 I accept that coincidences occur, but I find the coincidence that a summons was issued by the Turkish authorities in the period between the Departmental interview and the Departmental decision impossible to accept. Nor do I accept that there was an earlier summons which the applicant's family discarded. He had, at the time he claimed the first summons was issued - in December 1995 or January 1996 not even applied for a protection visa, therefore he and his family must have been aware that he did not have permanent residence in Australia, and that there was a strong possibility that he would not be granted permanent residence.

45 I do not accept that the applicant had serious difficulties practising his religion. He was given ample opportunity to talk about specific instances of such difficulties at the Departmental interview, and did not mention the beatings. He said that a meeting that he was at was broken up by the police a month prior to his departure for Australia. If that had happened, and he was in fact wanted because he had not been reporting to the police, as he claimed, he would not have been able to depart.

46 I accept that he may have been arrested following a brawl in which a number of people were injured. The applicant claims that only Kurds were arrested following this incident, and [sic] but he has no real information on this. Nonetheless, the applicant was arrested following a fight, and this is normal police practice. I also accept that he was beaten and mistreated - this is consistent with country information. This is unfortunate for the applicant, however it occurred because he was in detention accused of a crime.

47 The applicant claimed that he was charged with assault and causing injury, and released without bail to an unspecified date. I do not accept that he would have been able to travel as he in fact did had he been still wanted with respect to a serious offence.

48 The applicant provided a document which he claims is an arrest warrant. I do not accept that this document is what it purports to be. The document does not set out what specific offence the applicant is charged with. Moreover, as stated above, I do not accept the coincidence that this document was issued more than a year after the original adjournment, and after the interview with the delegate.

49 The applicant provided a letter from a lawyer in Karaman. This states that the court has started legal proceedings against the applicant and he will face serious consequences should he return to Turkey. It states that the authorities are aware that the applicant fled the country. In fact, the applicant left Turkey on a legal passport, through legal channels. I do not accept that this letter is genuine.

50 If I am wrong, and the applicant is still wanted in connection with the brawl, it would appear that he is facing prosecution for criminal offence, and not persecution. . . .

51 I note at this point that the applicant did not commit the offence of assault for a political reason, but solely to defend himself. The issue therefore is whether the anticipated punishment for what is clearly a criminal offence, for which he may in Australian law have had a valid defence, should be seen as persecution on the basis of his ethnicity or (imputed) political opinion.

53 The applicant, to the extent that the authorities are still interested in him, and taking into account that I do not accept that the arrest "`arrest warrant' is what it purports to be, faces outstanding charges for assault and wounding. It appears that he did commit these offences. What he fears is prosecution for a crime. Whether this fear is well-founded or not is not at issue, as it is not persecution on a Convention ground."

The Tribunal concluded by stating the following findings:

65 Based on all the evidence available, and in the light of the discussion above I make the following findings:

66 The applicant is a young Kurdish man, a citizen of Turkey. He was not a credible witness.

67 I accept that he was arrested, and possibly mistreated, following a brawl between Turks and Kurds in which he was involved. While the mistreatment, if it occurred, is regrettable and would amount to persecution, it was not on a Convention ground.

68 I do not accept that he faced problems amounting to persecution due to his race or ethnicity.

69 I accept that he made several attempts to depart from Turkey, travelling via Romania.

70 I do not accept that he was still wanted by the Turkish authorities at this time. I do not accept that he had to, or would have been able to, organise departures and arrivals by bribing a policeman from his home area."

Counsel for the applicant submits that the Tribunal's statements in paragraphs 24 and 25 show that it misapprehended the case propounded for the applicant. I am unable to accept this submission. It may be noted that the applicant has been represented by his solicitor at all times since February 1996 when his application for a protection visa was lodged. The applicant's statement furnished with that application refers to only one incident which resulted in the arrest of the applicant. That statement, does, however, refer to earlier incidents involving the killing of a Turkish teacher and a Turkish soldier apparently at the hands of Kurds in eastern Turkey. That may be what the Tribunal meant by its reference to "possibly the same incident". The Minister's delegate had concluded that the attack by the Turks which resulted in the arrest seemed to have been "motivated by ethnic/racial intolerance". The transcript of the hearing before the Tribunal also shows that the Tribunal member questioned the applicant about this same incident. In particular, the Tribunal wished to ascertain when it was that the applicant said the incident had occurred. The Tribunal said that it accepted that the applicant was arrested following a "brawl" between Turks and Kurds and that he was beaten and mistreated whilst in detention. What the Tribunal expressly did not accept was the applicant's version of subsequent events. Counsel for the Minister submits, correctly in my opinion, that credit loomed very large in the review before the Tribunal and that credit was a matter for that body. The Tribunal was not bound to accept what the applicant said.

The second ground of challenge relates to the Tribunal's finding that it did not accept that the applicant "was still wanted by the Turkish authorities". Counsel for the applicant submits that the Tribunal should have arranged an investigation of the authenticity of two particular documents that the applicant relied on.

The first of those documents purported to be on the letterhead and under the seal of the Public Prosecutor's Office at Karaman. It was dated 8 June 1996, and the agreed translation was:

"It was reported by the Public Prosecutor's Office.

It has been approved that Emine Yazici's husband Nazmi Yazici be arrested on his return to Turkey on charges firstly of failing to attend to the court and secondly of leaving the country despite being wanted by the police."

The other document was a letter dated 9 December 1996 addressed to the applicant apparently from a Turkish lawyer in Karaman. It was translated as follows:

"I have found out from the documents your wife has brought to me that you have made a refugee application in Australia.

The authorities in Turkey are aware of the fact that you have fled the country.

The Court started legal proceedings against you. You will be charged under the articles of Turkish Constitution [sic] and Article 8 of anti-terrorism Act [sic] on the grounds that you were involved in Kurdish propaganda activities and you fled the country and you were involved in propaganda activities against Turkey and you were involved in subversive activities.

This information shows that if you are made to return to Turkey, there might be serious dangerous consequences for you."

The statement in paragraph 44 of the Tribunal's reasons which concerns an "earlier summons" is explained, in part, by something the applicant apparently said at his Departmental interview on 8 May 1996. The Minister's delegate records the applicant as having stated:

"The local Muhtar (local authority) delivered a court summons to the applicant's wife in December 95/January 1996, after his arrival in Australia. When the applicant asked his wife to send the court document to him, she told him that she ripped it up and discarded it. She felt that he would not need it as he was already overseas."

The transcript of the hearing before the Tribunal (p.50) suggests that a copy of the document purporting to come from the Public Prosecutor's Office was first submitted to the Tribunal under cover of a letter dated 17 September 1996 from the applicant's solicitors. This further explains what the Tribunal meant by "coincidence" in paragraph 44 of its reasons.

The Tribunal member discussed both documents with the applicant's solicitor at the hearing. That much is clear. Unfortunately the transcript records as indistinct (at p 52) what it was that the solicitor said he would do with the first of those documents. What is apparent enough is that the applicant's solicitor did not suggest that the Tribunal should arrange an investigation of its authenticity under s 427(1)(d) of the Act. There is no basis for a submission, nor do I understand it to be submitted, that the Tribunal was not aware of its power under that provision. Accordingly, as North J explained in Duggal v Minister for Immigration and Ethnic Affairs (unreported, 25 July 1997) at pp 5-6, no error of law can be shown in the Tribunal's conclusion at paragraph 48 of its reasons.

So far as the letter from the Turkish lawyer is concerned, such a letter had been foreshadowed by the applicant's solicitors in a letter apparently received by the Tribunal on 31 December 1996, but it was only submitted to the Tribunal the day before the hearing. The transcript (at

p 52) shows that the Tribunal member plainly thought it did no more than record the lawyer's instructions and his speculations about the applicant's fate, should he return to Turkey, based on those instructions. It was of no apparent evidentiary weight. The Tribunal's statement in paragraph 49 of its reasons that it does not "accept the letter as genuine" is admittedly curious, but in the context the meaning is plain. The lawyer's recitation of his instructions was not accepted as evidence of the truth of whatever was the effect of the "documents" apparently conveyed to the lawyer by the applicant's wife. In that very paragraph 49, the Tribunal explains why it does not accept that the applicant "fled" the country. Accordingly, it may be seen that in the case of both these documents no question arises of not accepting them in the light of inconsistent documents in the kind of situation hypothesized by the Court in Balwir Singh v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court, 14 November 1997) at p 8. The second ground of challenge is also rejected.

Other particulars of the grounds specified in pars (a) and (e) of s 476(1) of the Act, which were set out in the application for review, were not pressed. Counsel for the Minister submits that the reasoning of the majority in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 about the relationship between s 476(1)(a) and s 420(2)(b) is wrong. However, accepting for the sake of argument that s 420(2)(b) requires a procedure to be observed, I do not consider that in the present case the applicant has shown that the Tribunal failed to act according to substantial justice and the merits of the case. This is especially so when it is borne in mind that the Tribunal had a mass of material before it, including its findings on the applicant's credibility on his claims about fear of persecution on account of his religion, which would reinforce its critical assessments of credit which underpin the findings that the applicant has singled out for challenge in this proceeding for judicial review.

The application is dismissed with costs.

I certify that the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated: 3 March 1998

Counsel for the applicant:	T V Hurley
Solicitor for the applicant:	Erskine Rodan & Associates
Counsel for the respondent:	W Mosley
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	2 March 1998
Date of judgment:	3 March 1998