MZYIS v Minister for Immigration & Anor [2011] FMCA 7 (20 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYIS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 7

MIGRATION – Review of decisions – Refugee Review Tribunal – Visa – Protection visa.

Migration Act 1958 (Cth), ss.91R, 91S, 424A, 426 Convention Relating to the Status of Refugees 1951, Art.1

Applicant:

MZYIS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 708 of 2010

Judgment of:

Riethmuller FM

Hearing date:

1 September 2010

Date of Last Submission:

1 September 2010

Delivered at:

Melbourne

Delivered on:

20 January 2011

REPRESENTATION

Counsel for the Applicant:

The Applicant appearing in person

Counsel for the Respondent:

Mr Hill of Counsel

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The application filed on 13 May 2010 be dismissed.
(2) The applicant pay the respondent’s costs fixed at $5865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 708 of 2010

MZYIS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was born in Corum, Turkey in 1978. At the age of 16 he entered Australia on a child migrant visa. For reasons that are not relevant to the decision that must be made on this application, the child migrant visa was cancelled on 15 November 2004. On 22 October 2009 the applicant applied for a protection visa. This was refused on 4 January 2010 by a delegate of the Department of Immigration and Citizenship. On 6 January 2010 the applicant applied for review of the delegate’s decision by the Refugee Review Tribunal (‘RRT’). The applicant’s representative made written submissions to the RRT on
   4 February 2010, and the RRT held a hearing on 5 February 2010. Further submissions were provided by the applicant’s representative on 9 February 2010 in response to a request from the RRT. On 9 April 2010 the RRT refused the application and affirmed the delegate’s decision.
2. In substance, the applicant seeks a protection visa on the basis that he had associated with a pro-Kurdish group headed by one Mr B, who was aligned with the Kurdistan Workers Party (‘the PKK’). The applicant claimed that that he would be harmed if he were to return to Turkey because of his perceived support for the PKK, and alternatively, the applicant would be harmed by members of the group he was formerly a member of, as a result of him talking about the group’s activities.
3. The RRT sets out the applicant’s claims on pages 4 to 10 of their decision. The applicant’s initial claims as attached to his protection visa application were that he would be ‘severely discriminated against by the Turkish majority’ because he is half-Kurdish and that he would also be ‘severely discriminated against by the Kurds’ because he is half-Turkish. The applicant said that this would result in him being unable to secure any employment, and given that he does not have family or friends in Turkey he would not be able to support himself. The applicant also claimed that he would be at risk of physical assault and believed that he would not receive effective protection from the Turkish authorities. The applicant also believes that he would be the subject of verbal taunts and abuse.
4. After the delegate’s decision to refuse the protection visa, the applicant provided a further statutory declaration, this time to the RRT, setting out a further basis for his protection visa claim. The applicant said that when he was 16 years of age he moved to a predominately Kurdish area and became friends with some teenagers and young men of Turkish background. The applicant said that he was eventually taken to meet Mr B and he was warned that if he spoke to police about the group he would be killed. He claims that at this time he was given a code name [M]. Following these events, the applicant assisted in putting up posters and attended a demonstration. The applicant alleges that some time after the demonstration Mr B told him that the police were looking for him and he was encouraged to move away.
5. The applicant says he fears that upon returning to Turkey he will be persecuted because of his perceived involvement with the PKK as a result of his involvement with Mr B’s group. He also fears that he would be persecuted by Mr B’s group as a result of discussing the group’s activities. The applicant explained that he had not raised these matters earlier because he did not want to disclose details about his involvement in Mr B’s group. The applicant later obtained an official passport from the Turkish authorities and left Turkey on that passport. He said he believes the reason the Turkish authorities allowed him to obtain a passport and freely leave Turkey was that they were looking for him by his nickname [M].
6. The RRT made a number of findings, including:
   • [41] The Tribunal is cognizant of the fact that the applicant was diagnosed as a paranoid schizophrenic by a forensic psychiatrist and that he has been treated for this condition for a number of years. No information is before the Tribunal indicating that the applicant was not fit to give evidence before it.
   • ...
   • [43] The Tribunal has a number of concerns with the credibility of the applicant in so far as his late claims of being suspected as a supporter of the PKK. The Tribunal raised this issue with the applicant and it had been addressed in submissions. Essentially, the Tribunal is not satisfied with the explanation of the omission of this claim from the initial set of claims. It considers that the applicant has had the services of an adviser from the point at which he applied for a Protection Visa and given that the substance of the claim, ie., his being seen as a supporter of the PKK, is significant, the Tribunal regards its omission from the original claims as inherently unlikely.
   • [44] The reason provided for the omission of the claim is that the applicant did not want to disclose the details of his involvement with [B]’s group, as he was told never to tell anyone about this group. The Tribunal does not accept this reason as it was not a matter of a public declaration but the presentation of a claim in a situation where the information is treated confidentially. In addition, given that the claimed circumstances occurred some 16 years ago when the applicant himself was 16 and given that the applicant has spent most of this time in Australia, the Tribunal considers the applicant’s claimed reticence to reveal these activities to be contrived. Furthermore, even if the Tribunal were to accept that the applicant did participate in activities as claimed, it remains that he was able to leave Turkey on a valid Turkish passport issued in his own name and this does not indicate that the authorities were interested in him as claimed, the Tribunal regards it implausible that he would have been issued a passport and been able to leave the country.
   • [45] The Tribunal therefore does not accept that he was involved with a pro-Kurdish group, headed by one [B]; it does not accept that he put pro-Kurdish posters or attended a demonstration in approximately 1994. The Tribunal does not accept that he is wanted by [B]’s group because he has told others about this group (the applicant has never claimed to have disclosed his alleged participation in this group to anyone else apart from the Tribunal.
   • [46] The Tribunal has turned its mind to the issue of what weight, if any, it gives to the applicant’s controlled paranoid schizophrenia as a possible explanation of the applicant’s lack of credibility on this claim; given that there is nothing before the Tribunal to suggest that the applicant has no (or impaired) capacity to give evidence, the Tribunal gives no weight to his condition in this instance.
   • [47] The Tribunal has considered whether he faces a real chance of persecution on return for the reason that he is half-Kurdish. The Tribunal reiterates that the applicant left Turkey when he was 16 and has not returned, that his father was Turkish and that he does not speak Kurdish.
7. The RRT then went on to consider country information from a variety of sources. The Tribunal went on to conclude:
   • [59] The above information provides a mixture of positive developments and the persistence of human rights abuses especially where the south east of the country is concerned and where the PKK is concerned. The Tribunal accepts that on occasions Kurds are discriminated against for reasons of their ethnicity and that on occasions this discrimination amounts to persecution, especially when the acts performed relate to the political support or apparent support for the PKK, an organisation against which the Turkish state has been fighting for a considerable time. The Tribunal reiterates that it does not accept that the applicant is associated with the PKK in any manner, nor is he perceived to be associated with the PKK.
   • [60] The question for the Tribunal is whether the applicant faces a real chance of persecution for reasons of his ethnicity should he return. The information available discusses Kurds as an ethnic group; the applicant is half Turkish and half Kurdish; his surname is his father’s surname; he does not speak Kurdish. Even if the Tribunal were to consider that the applicant would be perceived to be a Kurd, it does not consider that the applicant would be persecuted for this reason on return. The majority of the independent information deals with incidents where persons, of whichever ethnicity, have engaged or have appeared to engage in activities which are considered to have been performed on behalf of the PKK, or where Kurdish identity has been promoted. The Tribunal accepts that he may have subjected to some verbal harassment in the past as he claims, however the Tribunal does not consider that this constitutes harm of the type and severity contemplated by the Convention and taken up by municipal law as cited above. The Tribunal notes that some positive steps have been taken in accepting the expression of ‘Kurdishness’ in the media and in education.
   • [61] The applicant was 16 when he left Turkey; the Tribunal has not accepted that he was involved with the PKK nor that he is wanted by the authorities; he has stated that he believes in a better deal for the Kurds and the latter sentiment can be, on the basis of the above information, aired and concrete steps are being taken to achieve improvements for the Kurds. The applicant does not have a political profile as an activist for the Kurds. He has claimed that a cousin is serving an 18 year sentence but the details provided about this cousin are not sufficient for the Tribunal to ascribe a reason for this imprisonment nor that it is related to the applicant’s claims.
   • [62] The applicant has also claimed that he will be persecuted by the Kurds for being half-Turkish. For analogous reasons as those discussed above, the Tribunal accepts that he may, in certain circumstances, be subject to verbal harassment because he is half-Turkish; the applicant has not claimed that he was ever harmed for this reason and the Tribunal regards the likelihood of such occurrence in the future as remote, in addition, based on the overall thrust of the country information cited above, the harm suffered would not be of the type or severity contemplated by the Convention. The applicant has cited the example of his sister in Turkey and her inability to secure employment or employment commensurate with her abilities. The Tribunal finds that the applicant is merely speculating about the reasons for the employment situation in which his sister finds herself. He has provided no details or any indication which could indicate that the reasons for her employment status is her ethnicity.
   • [63] In light of the above evidence and discussion the Tribunal finds that the applicant does not face a real chance of persecution for reasons of his real or imputed political opinion or his ethnicity, now or in the reasonably foreseeable future should he return to Turkey. Thus the Tribunal finds that his fear of persecution is not well-founded. No other Convention claims have been adduced or arise on the facts.

Ground of review

8. The ground of the application filed on 13 May 2010 by the applicant is as follows:
   • The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential precondition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the applications, and its powers to conduct a review under s414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it failed to comply with the obligations imposed upon it by s424A.
9. These grounds of application are particularly difficult to understand, however it would appear to be to the effect that:
   1. the RRT made an unspecified error in making their decision; and
   2. the RRT failed to comply with s.424A.
10. In his written outline, the applicant referred to article 1 of the Convention Relating to the Status of Refugees 1951, and the definition of a refugee contained within that convention. Australia is a party to the Convention, and has enacted local laws providing for protection visas in order to fulfil Australia’s obligations under the Convention, to the extent that the government has considered it appropriate. Sections 91R and 91S of the Act qualify some of the aspects of the definition of a refugee contained within the Convention. There is no question that the RRT was obliged to apply the law as set out in the Act, which it appears to have done in this case. To the extent that the applicant’s case is that the RRT ought to have applied principles that derive from the Convention which are not part of the law as enacted by the Australian Parliament, the application must fail.
11. The applicant also argued that the RRT had erred in its conduct of the hearing by failing to take Mr B’s evidence. The applicant, through his advisers, sought to have Mr B give evidence by telephone (with the assistance of an interpreter) and provided the RRT with a telephone number for Mr B in Azerbaijan. There is no question that Mr B is a crucial witness in this matter.
12. Ordinarily witnesses are required to give evidence in courts and tribunals in person. This fulfils two very important aspects of a hearing process. First, there is no question as to the identity of the person giving evidence. Secondly, the decision-maker has the opportunity to see and hear from the witness in person in order to assess their credibility and the weight to be attached to their evidence.
13. In the modern world witnesses do regularly give evidence by telephone, both to avoid expense and in some cases because personal appearances cannot be undertaken. This is a less than perfect system. However, in some cases justice requires a witness to give evidence via telephone rather than not giving evidence at all. In this case, however, the applicant advised that Mr B ‘would not give the Tribunal any information about his identity or provide any identification’ (paragraph 35 of the RRT’s decision). It was suggested by the Tribunal that alternatively Mr B could attend an Australian embassy to give evidence by telephone. On 9 February 2010 the Tribunal was advised by the applicant’s adviser that:
    • Although the applicant wants [B] to give evidence in this matter, [B] has decided not to give evidence because he is afraid that if details of his evidence and location are disclosed to third parties, he may be placing himself and his family at an increased risk of being seriously harmed...(see paragraph 37 of the RRT’s decision)
14. It seems that, on a careful reading of the materials, the RRT did not in fact refuse to accept Mr B’s evidence, but had sought submissions as to why they should accept any evidence from him in the circumstances. The RRT were subsequently advised that Mr B would not give evidence. Even if the RRT effectively conveyed to the applicant a refusal to accept Mr B’s evidence, it is within the Tribunal’s discretion to determine whether or not they would accept evidence from a witness under s.426 of the Migration Act. Importantly, s.426(3) says that the Tribunal must have regard to an applicant’s wishes but is not required to obtain evidence from a person named by an applicant.
15. It is clear that the RRT had regard to the importance of the evidence in this case, and the difficulty of receiving telephone evidence from a person whose identity could not be established and who was not attending in person: put simply, anyone could have been on the other end of the telephone link. It is difficult to see what weight the RRT could have placed upon evidence delivered in this way. It is difficult to conceive of a court ever allowing evidence to be given in this way in judicial proceedings. In the circumstances of this case, I am not persuaded that the RRT has committed a jurisdictional error in this respect.
16. The applicant, in his outline, also complains that the RRT concluded that his involvement in Mr B’s group was limited. This was a finding of fact by the RRT which was open on the evidence before it. It is not open to the applicant to seek to review the fact finding of the RRT in judicial review proceedings.
17. The applicant complains that the RRT relied upon the fact that the applicant came to Australia on a Turkish passport and left Turkey without difficulty. The applicant explains this on the basis that the police were looking for him under his code name of [M]. The RRT considered the circumstances of the applicant leaving Turkey saying:
    • [33] The applicant was asked when he obtained his passport before he left Turkey and he said it was about a month before leaving. The Tribunal pointed out that if he had been issued with a passport, this did not indicate an interest in him by the authorities. He said that they were looking for him by his nickname, which was [M]. The applicant confirmed that this was a diminutive form of the name [M1] but added that only Kurds would contract the name [M] to [M].
18. The applicant has not placed in evidence the transcript of the Tribunal hearing to identify whether the applicant referred to his nickname or the code name. However, it is clear that the RRT considered the circumstances of the applicant leaving Turkey and the substance of the explanation at paragraph 33 of the RRT’s decision. It is not for this Court to review findings of fact. This finding of fact appears to have been open to the Tribunal who have turned their mind to the particular issue.
19. The applicant also complains that he told the RRT of his cousin who was in prison for being involved in a group like the one that the applicant claims he was involved in. He complains that the RRT did not investigate this. The RRT is not required to investigate every claim made by a person. It is not said that the cousin was involved in the same group as the applicant. It was for the applicant to place further evidence with respect to his cousin before the RRT if he believed that it was relevant. In any event it is difficult to conclude that the evidence of his cousin’s involvement in a different group was relevant to the findings ultimately made by the RRT in this case.
20. The applicant sets out the discrimination that he says that he and his brother were subjected to in the town where he grew up. However, it is not appropriate in judicial review proceedings to review questions of fact. All these matters were placed before the RRT.
21. It appears that these are the matters, as set out in the applicant’s outline, that form the substance of the complaint made in the first ground of his application.
22. The second ground of his application alleges a failure to comply with s.424A of the Migration Act. He did not provide particulars of the alleged error. Country information does not have to be supplied to the applicant in accordance with s.424A. The other material relied upon by the RRT was the applicant’s account which was provided by him. Nothing has been identified which indicates any failure on the part of the RRT to comply with s.424A. As a result, the application on this ground must be refused.
23. The final matter that was raised by the applicant was a complaint that circumstances surrounding the events leading to the cancellation of his child migrant visa were contained within the files and placed before the RRT member. These matters are a matter of public record set out in detail in the decision of Forgie DP of the AAT in a decision publicly available on AustLII. Forgie DP’s decision relied in significant part upon events set out in some detail in two decisions from the Supreme Court of Victoria, again reported on AustLII.
24. It does not appear that the RRT have had regard to these matters, or the applicant’s criminal history, when assessing this case and making the decision, the subject of review. It would not be possible for the applicant to explain the very long delay between entering Australia and the refugee application, or indeed the need for the refugee application, without reference to the cancellation of his child migrant visa and his period of incarceration. The Tribunal considered the applicant’s schizophrenia as part of the process of assessing his evidence. The Tribunal gave reasons for rejecting his evidence and did not rely upon his criminal conduct. This was not a case heard by a jury, but a professional decision-maker. I find no error on the part of the Tribunal member in proceeding to determine the case in these circumstances.
25. I therefore dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 20 January 2011