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Federal Court of Australia |
IMMIGRATION - refugee status - protection visa - well-founded fear of persecution - applicant a Turkish seaman of Alevi faith - claim for refugee status based on identification as an adherent to the Alevi faith - whether Tribunal's decision involved error of law.
Migration Act 1958 (Cth) ss.476(1)(e)
Chan Yee Kin v. Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Wu Shan Liang v. Minister for Immigration & Ethnic Affairs [1995] FCA 1327; (1995) 130 ALR 367
Minister for Immigration & Ethnic Affairs v. Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Tho Xuan Don v. Minister for Immigration, Local Government and Ethnic Affairs (Olney J, Federal Court of Australia, 9 April 1997, unreported, Judgment No. 222 of 1997)
Selvadurai v. Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347
Shu Min Pan v. Minister for Immigration and Multicultural Affairs (R.D.Nicholson J, Federal Court of Australia, 23 January 1997, unreported, Judgment No. 13 of 1997)
Nguyen Van Anh v. Minister for Immigration, Local Government and Ethnic Affairs (Mansfield J, Federal Court of Australia, 11 June 1997, unreported, Judgment No. 506 of 1997).
FARIS SEMIZ v. THE MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
No. WAG 57 of 1996
CARR J
PERTH
24 JUNE 1997
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA ) No. WAG 57 of 1996
DISTRICT REGISTRY )
GENERAL DIVISION )
B E T W E E N : FARIS SEMIZ
Applicant
- and -
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
CORAM: CARR J
DATE: 24 JUNE 1997
PLACE: PERTH
1. The application be dismissed.
2. The applicant pay the respondent's costs.
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 ) No. WAG 57 of 1996
DISTRICT REGISTRY )
GENERAL DIVISION )
B E T W E E N : FARIS SEMIZ
Applicant
- and -
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
CORAM: CARR J
DATE: 24 JUNE 1997
PLACE: PERTH
INTRODUCTION
The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations ("the Regulations"): see s.31(3) of the Migration Act 1958 (Cth) ("the Act") and r.2.03 of the Regulations. One of those criteria is that at the time of decision the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl.866.221 of Schedule 2 of the Regulations. "Refugees Convention" is defined by cl.866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. 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; ..."
The applicant's case before the Tribunal was presented in the form of written and oral evidence previously provided to the Minister's delegate together with his own further sworn oral evidence. The applicant's claims to refugee status were based on alleged mistreatment arising from his Alevi religion and his fear that, if returned to Turkey, he would be punished for jumping ship and seeking refuge in Australia. The Alevis are a Shi'ite Muslim minority in Turkey who (so the Tribunal appears to have found) suffer discrimination at the hands of the majority Sunni Muslims. The applicant told the Tribunal that his family are Alevi but that he had never lived in an Alevi environment and had no education in the Alevi religion, nor had he pursued its practice. The applicant told the Tribunal that he was also Kurdish, although he does not speak Kurdish and made no claims that he was ever mistreated because of his Kurdish nationality or that he feared future harm for that particular reason. The applicant was born in a predominantly Alevi area of Turkey and moved to Ankara when he was three or four years old. His mother died when he was eight and, together with his brother, he was sent to an orphanage in the town where he was born. His brother still lives in that town, where he is a cleaner at a local school. The applicant's father remarried and has remained living in Ankara, while two of the applicant's younger siblings remain in orphanages. The applicant claimed that he was discriminated against because of his Alevi background and beaten up during his school years by boys from an Islamic school. In 1988 he was involved in a fight with some non-Alevi Muslim friends. As a result of that fight he was detained by police. The applicant told the Tribunal that he experienced problems during his military service because he had proclaimed that he was an Alevi. He said that he was allocated to undesirable cooking duties, although he said that the other cooks were not Alevis. On one occasion he was detained for fourteen days after he was involved in a fight over religion with a Sunni Muslim. The Sunni Muslim was only detained for seven days. He indicated that there was frequent niggling, arguments and rough treatment over the food which he had prepared. The applicant stated that it was difficult for Alevis to obtain employment, although he said that he did not search much for work after his discharge from the army, but took the first seaman's job that was offered to him. He worked on two ships, experiencing no problems on the first, but becoming involved in a dispute on the ship which he deserted in Australia. He stated that there were five Alevis in the crew and that two of them had confronted the captain because he was allocating Alevis the worst work. The applicant supported his two friends and the captain threatened them all with dismissal when they returned to Turkey. The applicant stated that non-Alevi crew members were also in dispute with the captain over the work which they were required to do. As a consequence of the threat of dismissal, the applicant and his friends decided to desert the ship. When the Tribunal pointed out to the applicant that he had not previously mentioned this motive for leaving the ship, he replied that he had just remembered it and that if he had wanted to leave for economic reasons he had had plenty of prior opportunities to do so in other countries. The applicant expressed fear that he would be questioned on return to Turkey and detained and tortured because he had deserted ship and because he had applied for asylum on the ground that he is an Alevi. He said that he had heard that ship jumpers were detained and seriously mistreated. The fact that he is an Alevi, so he claimed, would exacerbate such treatment. The applicant said that he had telephoned his father in mid-1995. His father had told him that three bearded men had been asking after him. The applicant claimed that because the fundamentalist Refah party is coming to power in Turkey, there will be an increase in the already high rate of human rights abuses in that country particularly against the non-orthodox Alevis.
In addition to the oral and written evidence provided to the Tribunal by the applicant and the information contained on the Departmental files, the Tribunal had before it further evidence in the form of various reports concerning the political, religious and human rights situation in Turkey. The Tribunal treated the applicant's claims based on his Alevi background as disclosing two potential Convention reasons, namely religion and imputation of certain political opinions. The Tribunal assessed the claims based on ship desertion and the fact that an application had been made for refugee status as having been made by reason of political opinion, either real or imputed by the Turkish authorities.
The Tribunal rejected the applicant's claim to be Kurdish. It stated its conclusion on that matter in the following terms:
"Given that the Applicant stated he could not speak Kurdish, that the claim was first disclosed at the hearing and no claims were made that his Kurdish nationality was ever a cause of mistreatment or is now a reason for fear, the Tribunal finds that the Applicant contrived the claim that he was Kurdish to improve his chances of being recognised as a refugee."
The Tribunal accepted that the applicant has an Alevi background. The applicant told the Minister's delegate and the Tribunal that he was not a follower of Alevi religious practices or beliefs and that he is effectively ignorant of them. He also told the Tribunal that he was not a religious person, that there were no Alevi organisations in Perth but that he would join one if there were such an organisation in Perth. The Tribunal expressed surprise at that claim, on the basis that the applicant had never shown any inclination to pursue his religion previously and stated that he was not religious. Even so, the Tribunal noted that the applicant said he was proud of being Alevi. On the matter of the applicant identifying himself as being Alevi, the Tribunal found that:
"... despite his Alevi heritage, the Applicant is unaware of the roots of his religion and his family history, he has never learned or followed the Alevi customs and expressed no inclination to do so until the hearing when he said he would join an Alevi organisation if one existed in Perth, and there is nothing inherent in his name, looks, conduct, language or any other characteristic that identifies him as an Alevi. The only times he has been recognised as an Alevi is when he stated he had disclosed that fact."
The Tribunal accepted that it was "possible" that the applicant had suffered some harassment during his school years at the hands of boys from the Islamic school. The Tribunal also found that the applicant had experienced some minor discrimination during the years before his military service. However, the Tribunal stated that it did not follow that the applicant was victimised because he was an Alevi, as his evidence indicated that fundamentalist Muslims in Turkey are equally likely to harass anybody who does not conform with their fundamentalist views. The Tribunal referred to the applicant's comments about having many friends who were "just Muslims", but were not Alevis. In respect of any harassment before his military service, the Tribunal concluded that even if the applicant had been targeted for being an Alevi, that discrimination was minor and did not amount to persecution.
The Tribunal then turned to the detention of the applicant in 1988. The Tribunal found that the applicant was not detained on account of his religion, because his Muslim (non-Alevi) friends were also detained. The Tribunal concluded that the applicant was detained for fighting, regardless of his religion or any other Convention reason. The Tribunal drew a similar conclusion in relation to the applicant's army experiences. The Tribunal referred to the applicant's evidence that he was allocated an undesirable job as a cook, but noted that his own evidence was to the effect that the other three or four cooks were not Alevi. The Tribunal stated that this indicated that the applicant's religion was not a discriminatory factor in the allocation of that work. In relation to the alleged rough treatment over the food prepared by the applicant, the Tribunal held that the applicant's evidence did not disclose that this arose from a Convention reason but was, rather, a result of complaints about the quality of the food. As to the consequences of the fight with a Sunni Muslim, the Tribunal noted that both the applicant and that person were detained and that this indicated that they were being punished for fighting regardless of their respective religions. The Tribunal considered the fact that the applicant was detained for a longer period than his foe indicated that he was seen to be the aggressor. The Tribunal said that this was most likely, given the applicant's evidence that he was often drawn into arguments and had some history of fighting. The Tribunal discounted as "remote" the possibility that extra punishment was inflicted on him because he was Alevi. In relation to these claims the Tribunal summarised the position as follows:
"The picture that emerges from the Applicant's evidence is that he sometimes identified himself with the Alevis, although he did not follow any Alevi customs. He would then be teased or otherwise aggravated (sic) until he would become argumentative and on isolated occasions he would resort to violence. While it is reprehensible that some individuals would goad him on account of religion, the authorities treated him no differently from those he was fighting and he continued to have friendships with other Muslims. The Tribunal finds that there is not a real chance he was systematically harassed on account of his religion, and it also concludes that the insults to which he was occasionally subjected were isolated incidents of minor discrimination that cumulatively did not approach the level of serious harm that would amount to persecution."
The Tribunal then considered the applicant's claim that it was difficult for Alevis to find employment. The Tribunal noted that the applicant had not looked for employment for very long before finding a job as a seaman soon after his discharge from the army. The Tribunal said that the applicant's evidence demonstrated that at least 18% of the crew on his second boat were Alevi. It concluded:
"The ease he experienced in finding relatively lucrative employment as a crew-member indicates that the authorities did not persecute him because he was an Alevi, particularly as he needed to obtain a seaman's book and a passport.
...
The evidence also supports a conclusion that he was honourably discharged from the Army, despite his record of fighting. In considering the Applicant's treatment by the authorities in Turkey, the Tribunal finds there is not a real chance that it was motivated by any Convention reason and concludes that his Alevi religion was merely coincidental on the occasions on which he encountered difficulties with agencies of the government."
The Tribunal rejected the applicant's claim that he had been harassed while working on ships. It noted that it was only at the hearing that the applicant stated that he was motivated to desert the ship because some Alevi colleagues had confronted the captain over work allocations. The Tribunal expressed its conclusion on this matter in the following terms:
"The lateness of the claim by the Applicant in the current case indicates that it is fabricated in order to enhance his claim to be a refugee. The Tribunal finds to be far-fetched, the explanation that he just remembered it at the hearing but had not been able to do so when he applied for refugee status almost a year previously and just three or four months after the alleged event."
The Tribunal drew in its overall conclusions in the following terms:
"Despite his evidence that he was proud to be an Alevi and would let people know about it, the Applicant's evidence indicates that he became involved in arguments over his religious background on occasion and once this turned into a physical fight after which the military authorities detained both the Applicant and the other non-Alevi participant. In view of this relative lack of evidence of harassment for a Convention reason, particularly during the four years the Applicant was a seaman, together with the evidence that he had not taken the ample opportunities on offer to escape alleged discrimination during that time, the Tribunal finds to be remote the possibility that he left his ship for a Convention reason, concluding that he deserted in order to improve his lifestyle or his economic situation."
The Tribunal also rejected the applicant's claim that his father was visited by three bearded men around the middle of 1995. The Tribunal said that the applicant's evidence that his father was not otherwise harassed and that his siblings have not been experiencing any problems leads to the conclusion that the family's Alevi background was not of any interest to those visitors. The Tribunal stated that it was odd that they should visit the applicant's father in Ankara some eighteen years after the applicant last resided there. The Tribunal described the applicant's evidence about the visit as being vague and that he had not claimed that the visitors made any mention of the fact that he had deserted ship in Australia. The Tribunal concluded that:
"The timing of the claim, shortly after the initial application was refused and submitted with the application for review, in conjunction with the other circumstances, leads to a conclusion that this aspect of the Applicant's evidence was concocted."
The Tribunal then reviewed several reports relating to the religious, political and human rights situation in Turkey. These included reports which indicated that Kurds and people perceived to be sympathetic to the Kurdish separatist cause, together with political activists and supporters perceived to oppose the ruling authorities, may be at risk of serious harm. However, in relation to the applicant, the Tribunal observed:
"The Applicant is not Kurdish and has not claimed to have been involved in any political group in Turkey. Nor has he claimed that he has ever been harassed by Turkish authorities other than his superiors in the Army and the police on one occasion. Each time he was treated in a similar manner to the people with whom he was fighting, notwithstanding that they were not Alevis. His treatment at the hands of Turkish officialdom, in obtaining consent and documentation to work in the merchant navy and leave and enter the country over a period of several years, indicates that they have no interest at all in discriminating against him because of his Alevi background. Similarly, the fact that he was able to find work on ships without significant difficulty leads to a conclusion that he will not be denied a livelihood by the government and private agencies and shipping lines involved in the industry in which he is employed."
The Tribunal then referred to a US State Report as confirming the existence of some discrimination against Alevis. In that regard the Tribunal found as follows:
"Given the Applicant's ignorance of the Alevi religion, his express statements that he is not a religious person and his historical lack of interest or motivation in reclaiming his Alevi heritage (notwithstanding his statement that he would join an Alevi group if one existed in Perth), together with the fact that he is not from the south-east, this type of discrimination is of little relevance in assessing whether or not the Applicant faces persecution should he return. In any event, it does not disclose evidence that the applicant would be prevented from pursuing Alevi religious practices without hindrance, if that was his desire."
The Tribunal referred to the 1995 riots in Istanbul and Ankara. It found that there was "not a real chance" of the applicant becoming involved in, let alone suffering serious harm, should there be any further outbreaks of such violence. The Tribunal made the following finding:
"While there is ample evidence to support the claim that Turkey has a bad record on human rights, that evidence does not support the Applicant's claims that there is a real chance he will be persecuted on account of his Alevi background. Nor, as discussed below, does it support his claims regarding his desertion of his ship and refugee application in Australia."
The Tribunal then examined evidence concerning the consequences to the applicant, if he were returned to Turkey, for having deserted his ship and having made application in Australia for refugee status. That evidence included an opinion from the Turkish Maritime Organisation that there was no special law in Turkey punishing those returning to Turkey after having deserted a ship overseas, unless they were guilty of some other crime. The Turkish Maritime Organisation advised that if there had been no such crime then such persons are freed after an administrative investigation. The applicant did not claim to be in the category of a person who had committed a crime. The Tribunal concluded that there was no real chance that the applicant would face persecution in Turkey on account of having deserted his ship. The Tribunal rejected the applicant's evidence that asylum seekers would be persecuted upon return to Turkey on account of having made a claim for asylum. The Tribunal noted that there was no evidence to that effect in the human rights reports available to it, although given the significant number of Turks who have gone overseas and the international focus on human rights abuses in Turkey, the Tribunal said that it would expect that such instances would have been reported. The Tribunal's reasons concluded in the following terms:
"In assessing the Applicant's claims and the evidence before it, the Tribunal finds that there is not a real chance that the Applicant faces a real chance of persecution for reasons of his religion and for reasons of political opinions imputed to him because he has jumped ship and sought asylum in Australia. This is the Tribunal's conclusion whether the claims are considered separately or in combination. The Applicant has made no other claims that disclose other Convention reasons, so there is not a real chance he will face persecution for such reasons. It follows that he is not a person to whom Australia has protection obligations under the 1951 Convention relating to Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees and therefore he is not entitled to the grant of a protection visa."
The applicant originally relied upon three grounds. At the hearing, two of those grounds were abandoned. The remaining ground was in the following terms:
"That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the person who made the decision."
That ground can be seen as invoking and following, almost word for word, the ground for review provided by s.476(1)(e) of the Act. The applicant filed the following particulars of this ground, namely:
. The Tribunal erred at law in that it did not properly direct itself at law as to whether there was a well founded fear of persecution held by the applicant. As such it failed to recognise that the applicant is a refugee for the purposes of the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees and as such Australia has protection obligations to the applicant.
. The Tribunal did not properly direct itself at law as to the meaning of "well-founded fear".
. The Tribunal did not correctly direct itself as to the circumstances which are sufficient to constitute a "well founded fear" within the meaning of the term in the Convention.
At the hearing, Mr M.P. Ellis, counsel for the applicant, conceded that the Tribunal had correctly "cited and identified" the applicable law but said that the essence of the applicant's case was that the Tribunal had incorrectly applied that law to the facts as found by it. I note that counsel did not expressly concede by use of the word "interpret" (or its derivatives) that there was no error on the Tribunal's part involving an incorrect interpretation of the applicable law. However, a concession that the Tribunal correctly "cited and identified" the applicable law amounts, in my view, to the same thing. Furthermore, there was no objection when Mr P.R. Macliver, counsel for the respondent, submitted that this was a case in which review was sought under the second limb of s.476(1)(e). Accordingly I am reasonably certain that Mr Ellis abandoned, and intended to abandon, reliance upon the first limb of s.476(1)(e). In those circumstances, the only issue for the Court to decide in this application is whether the Tribunal's decision involved an error of law by an incorrect application of the law to the facts as found by it, whether or not that error appears on the record of the decision. However, as a matter of perhaps excess caution, I shall later in these reasons, consider whether the Tribunal incorrectly interpreted the applicable law.
The applicant criticised five findings which, so Mr Ellis submitted, showed that the respondent "did not correctly direct itself as to the circumstances which are sufficient to constitute a well-founded fear of persecution" within the meaning of the Convention. The first focused on the findings (set out at pp.5-6 above) in relation to the applicant's unawareness of the roots of his religion and the like. The intensity of the applicant's beliefs, so it was put, was irrelevant to the objective question of whether there was a well-founded fear of persecution. On behalf of the applicant it was submitted that there was thus a failure properly to consider "the merits of the evidence" and that this amounted to a failure on the part of the Tribunal properly to "direct itself with respect to the law". In my view, this criticism does not disclose any relevant error of law. The finding can be seen as a preliminary finding by the Tribunal, relevant to the extent to which the applicant might be identified by the Turkish authorities as actively professing and promoting the Alevi faith or otherwise. The applicant relied upon a passage from a publication by a Mr David McDowell "The Alevi Kurds: A Briefing on Alevi Kurd Asylum Seekers", which the Tribunal set out at p.9 of its reasons. The relevant passage read:
"But Kurds give themselves away by their speech, and if they come from an Alevi area they are assumed to be Alevi."
Mr Ellis submitted that if it is known that the applicant came from an Alevi area, this report shows that he will be assumed to be an Alevi. In my opinion, this is a criticism of the weight or lack of weight given to that observation compared to the Tribunal's own assessment of the applicant's profile as an Alevi follower. It does not disclose any error of law. Furthermore, any incorrect application of law must be shown to be such an application to the facts "as found by the Tribunal". The applicant in reality is challenging the Tribunal's fact finding process.
The same applies to each of the other four matters raised by the applicant, namely:
. The Tribunal's reasoning that although the applicant experienced some minor discrimination during his school years, it did not follow that he was victimised because he was an Alevi, as his evidence indicated that fundamentalist Muslims in Turkey are equally likely to harass anybody who does not conform to their fundamentalist views.
Mr Ellis submitted that the Tribunal's decision on this point ignored the fact that fundamentalist Muslims are in the majority in Turkey and because the applicant is not a fundamentalist Muslim, he will almost certainly be harassed by fundamentalist Muslims. He submitted that this should have been taken into consideration when the Tribunal applied the law to the facts. The Tribunal had not, so it was contended, taken the next step to find whether or not that conduct amounted to persecution. The failure of the Tribunal, so it was put, indicated an improper application of the law to the facts of the applicant's case.
. The Tribunal's conclusions in respect of his 1988 detention and his allocation to undesirable work during army service.
The applicant complained about the Tribunal's finding that he had been detained for fighting, regardless of his religion or any other Convention reason. The applicant criticised this finding on the basis that the Tribunal was bound to consider this evidence in the context of the applicant's "overall circumstances", which were that he was Alevi and had been involved in fights generally because of his religion. There was also a criticism that the Tribunal did not consider whether the other "participants" were treated in the same way as the applicant whilst in detention. I should interpolate here that I was not taken to any claims made or evidence led by the applicant before the Tribunal to that effect. Mr Ellis submitted that similarly in respect of the undesirable work the Tribunal failed to consider this evidence in "the context of the fact that the Applicant was given these undesirable tasks because he was Alevi: the fact that other cooks were not Alevi does not add to the proposition that there was no discrimination against Alevis generally. This therefore constituted an improper application of the law to the facts". Furthermore, so it was submitted, the mere fact that other cooks were non-Alevi did not mean that the applicant was not assigned to the job because it was an undesirable job and because he was an Alevi. Counsel for the applicant argued that the other non-Alevi cooks may have done "other things" to deserve a low status job but no evidence was taken and no findings made as to that.
. The Tribunal's finding that there was not a real chance that the applicant was systematically harassed on account of his religion, and its conclusion that the insults to which the applicant was occasionally subjected were isolated incidents of minor discrimination that cumulatively did not approach the level of serious harm that would amount to persecution.
The applicant submitted that the Tribunal was bound to consider "the overall context of the Applicant's circumstances", which included constant harassment, no matter how minor. This, so it was argued, indicated discrimination against him and as such should have been considered so by the Tribunal. The applicant complained that the Tribunal should have considered the matters cumulatively and by not doing so had improperly applied the law to the facts.
. The Tribunal's finding that during the four years the applicant was a seaman he had had ample opportunities to escape and the possibility that he left his ship for a Convention reason at Fremantle was remote, concluding that the applicant deserted in order to improve his lifestyle or his economic situation.
Once again, the applicant submitted that the Tribunal had ignored the seriousness of a decision to jump ship. It was bound to consider the cumulative nature of the discrimination "in that the Applicant had endured discrimination for the past four years and as such his ship-jumping was the last act of a man desperate to achieve freedom".
In my opinion each of these four further complaints amount to complaints that the Tribunal made errors in its factual findings. They do not involve any error of law of the type described in s.476(1)(e) of the Act.
Earlier in its reasons the Tribunal set out the legislative framework and referred to the authorities on the application of the "real chance of persecution" test. The Tribunal quoted extracts from Chan Yee Kin v. Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. The Tribunal can be seen, from its reasoning, to have understood the two-stage process and the correct application of the "real chance" test. It can be seen also to have understood the meaning of "persecution". In my opinion, so far as the first limb of s.476(1)(e) is concerned, the Tribunal's decision did not involve an error of law being an error involving an incorrect interpretation of the applicable law. In reply, Mr Ellis eschewed any suggestion that the Tribunal had "surreptitiously adopted a balance of probabilities test". The remaining question is whether the Tribunal's decision involved an incorrect application of the law to the facts as found by it. The approach which a Court should take in answering that question is now well-settled by authority. As a Full Court of this Court said in Wu Shan Liang v. Minister for Immigration & Ethnic Affairs [1995] FCA 1327; (1995) 130 ALR 367 at p.378:
"The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written."
On appeal in that case, Minister for Immigration & Ethnic Affairs v. Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at pp.274-276 the High Court explained that the subjective nature of the Minister's decision (that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution), whilst not immunising the decision from review, was necessarily of relevance to the issue of whether there has been an error of law. At p.272 the High Court referred to:
"... the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, 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 of the merits of the decision."
The respondent, in his written outline of submissions set out some twenty-one factual findings expressed in the Tribunal's reasons. These comprised, so it was submitted, a whole range of factual findings to justify the Tribunal's conclusion. I agree. I have set out or referred to many of them above. I do not consider that the applicant has made good his complaint that the Tribunal failed to apply the "real chance of persecution" test in this matter. In my opinion, a fair reading of the Tribunal's reasons shows that it understood the legal test and that it made numerous findings of fact which were open to it on the evidence. On those findings of fact it was clearly open to the Tribunal to reach the conclusion that it was not satisfied that there was a real chance of persecution of the applicant if he were returned to Turkey. In respect of the applicant's complaints to the effect that in the absence of any other evidence or other explanation for discriminatory treatment and the like, the Tribunal was obliged to find in favour of the applicant's contentions, that is simply not the law. The Tribunal is not thus fettered - see Selvadurai v. Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at p.348; Shu Min Pan v. Minister for Immigration and Multicultural Affairs (R.D. Nicholson J, Federal Court of Australia, 23 January 1997, unreported, Judgment No. 13 of 1997) at p.10. I accept the respondent's submission that in reality the applicant was seeking to attack the Tribunal's decision on the merits i.e. to challenge its findings of fact. In my view, the applicant, in making the submissions referred to above, was engaged in just such a factual exercise. He was also seeking expressly and implicitly to criticise the weight given by the Tribunal to certain matters relating to the five findings which he challenged, and which I have summarized above. Insofar as the applicant contended that the Tribunal failed to consider cumulatively the claims made by the applicant, my assessment is that it did in fact take into account all of the claims both individually and on a cumulative basis. See, for example, the passage from its reasons which I have set out at p.11 above.
But, as foreshadowed in these reasons, there is a more basic obstacle in the applicant's path. The Tribunal found as a fact (at p.12):
"... that there is not a real chance that the applicant faces a real chance of persecution for reasons of his religion and for reasons of political opinions imputed to him because he has jumped ship and sought asylum in Australia".
On that finding, the Tribunal was obliged, as a matter of law, to hold that the applicant was not a refugee. I respectfully adopt and agree with the following passage from the reasons for judgment of Olney J in Tho Xuan Don v. Minister for Immigration, Local Government and Ethnic Affairs (Federal Court of Australia, 9 April 1997, unreported, Judgment No. 222 of 1997) at pp.12-13:
"The sole issue for determination was whether the applicant's fear of persecution is well-founded. After considering the evidence the Tribunal found as a fact that the applicant's fear of persecution was not well-founded. Having made that finding, a correct application of the law to the facts of the case inevitably led to the conclusion reached by the Tribunal, namely that the applicant is not a refugee and is not entitled to the relief sought.
The particulars pleaded in respect of this ground of appeal challenge the finding of fact that the applicant's fear is not well founded and invite a consideration of matters of evidence to make good the challenge. Such an approach is not open to the applicant who seeks review under the second arm of s.476(1)(e), the very basis of which requires an acceptance of the facts as found by the Tribunal.
In my opinion the applicant has failed to make out a case for review pursuant to the ground available under s.476(1)(e) of the Migration Act."
The applicant has failed to establish that the Tribunal incorrectly applied the law to the facts as found by it. No other ground of review was relied upon. Accordingly, the application will be dismissed with costs.
I certify that this and the preceding nineteen (19)
pages are a true copy of the Reasons for Judgment
of Justice Carr.
Associate:
Date: 24 June 1997
Counsel for the Applicant: Mr M.P. Ellis
Solicitors for the Applicant: J Chong & Co
Counsel for the Respondent: Mr P.R. Macliver
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 16 June 1997
Date of Judgment: 24 June 1997
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