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Federal Court of Australia |
Last Updated: 17 December 1999
Celik v Minister for Immigration & Multicultural Affairs [1999] FCA 1769
MIGRATION - no question of principle
Migration Act 1958 ss 430, 476(1)(a) and 476(1)(e)
Thanh Phat Ma v Billings (1996) 71 FCR 431 followed
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 referred to
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 cited
DENIZ CELIK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 252 OF 1999
IBOCAN CELIK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 253 OF 1999
SEVDA CELIK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 254 OF 1999
HELY J
17 DECEMBER 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
1. The applications be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
JUDGE: |
HELY J |
DATE: |
17 DECEMBER 1999 |
PLACE: |
SYDNEY |
1 The applicants are citizens of Turkey. Deniz and Ibocan are brothers. Sevda is their sister. The brothers arrived in Australia on 6 July 1996 travelling on their own passports with a visitor's visa. The sister arrived in Australia on 18 October 1996.
2 Each applicant claimed the status of a refugee upon the basis that each is a Kurdish, Alevi Muslim, who is politically involved in HADEP/TKP-ML, and that his or her life is in danger because of his or her race, religion or political beliefs. It was the cumulative effect of the applicants' position as Alevi-Kurds, and as perceived political opponents of the Turkish authorities, which was claimed to give rise to their well-founded fear of persecution.
3 The applications for orders of review gave no meaningful information as to the grounds on which review was sought. Orders for the filing of amended applications, identifying the issues for determination, were made on 27 April, 18 June and 16 July 1999. None of these orders was complied with. Amended applications for review were provided to the respondent on 22 and 23 November 1999, the matters having been fixed for hearing on 25 November 1999.
4 Leave to file the amended applications was opposed upon the ground of failure to comply with the orders earlier made, and the proximity of the hearing date, and because of defects and obscurities in the proposed amended applications themselves. There was considerable force in each of these complaints. Nonetheless, I allowed the amended applications to be filed, but required the applicants' counsel to specify the grounds on which review was sought with some precision during the course of his submissions. Counsel confirmed that any matter referred to in the amended application which was not the subject of oral submission was to be taken as having been withdrawn.
5 This has the consequence that the grounds on which review is sought appear only from the transcript, as summarised in these reasons. It is unsatisfactory that this should be so, but adoption of any of the other available courses would have produced an even more unsatisfactory outcome.
Turkey
6 For over a decade, Turkey has engaged in armed conflict with the terrorist Kurdish Workers Party ("PKK") whose stated goal is the creation of a separate state of Kurdistan in south-eastern Turkey. PKK has been outlawed in Turkey. HADEP is a legal organisation. It is the pro-Kurdish peoples' democracy party, which is perceived to be a left-wing organisation. TKP-ML is a Kurdish/Turkish communist party. Alevi Muslims are a religious sect with a significant Kurdish membership.
Deniz Celik
7 The applicant's case to the Refugee Review Tribunal ("RRT"), insofar as it concerned political activities, is that he was an active member of HADEP from 1990 and closely involved with his father's activities as secretary of that organisation. He claimed to have been threatened and persecuted on occasions in January 1995, March 1995 and May 1996 for that reason.
8 For reasons which it gave, RRT did not accept the applicant as a credible or reliable witness. Those reasons are capable of sustaining that conclusion. RRT found:
- the applicant had no significant political profile;
- the applicant did not become a member of HADEP until October 1995;
- the applicant was not threatened or persecuted by reasons of his, or his father's, involvement in HADEP;
- the specific incidents relied upon did not amount to persecution nor did they involve the applicant being treated in a discriminatory manner. Shortly stated, he and other participants were arrested when otherwise lawful activity degenerated into a brawl, and their arrest was for that reason.
9 RRT considered the Independent Country Information in relation to persecution as an Alevi. It noted that the available sources of information did not suggest that the Alevis are prevented from practising their religion or are persecuted; the Alevis do, however, complain about informal discrimination, limits on religious instruction and professional advancement. RRT expressed its conclusion in this way:
"The Tribunal is satisfied that Alevis in Turkey do not face persecution or experience systematic harassment by the authorities. That is not to say that an individual Alevi may not be persecuted in particular circumstances but on the evidence before it the Tribunal is not satisfied that the applicant has been targeted or persecuted by reason of his Alevi beliefs or identity, or that he would be on return to Turkey."
10 Notwithstanding ongoing difficulties in the south-east of Turkey, the country information did not demonstrate to the satisfaction of RRT that in Istanbul (where the applicant and his family have been settled since 1989) "simply being a Kurd of itself" gives rise to a real chance of persecution. RRT noted that there is evidence that being perceived as an active proponent of Kurdish separatism, or of the PKK will attract attention. However, its conclusion was that the applicant did not have any significant political profile.
Ibocan Celik
11 For reasons which it gave, RRT did not find the applicant to be a reliable or credible witness. Those reasons are capable of sustaining that conclusion. The applicant's own membership of HADEP and the claimed high profile role of his father as secretary of the local branch of HADEP, were said to be a principal focus of the stated harassment of the applicant. RRT was not prepared to accept at face value the applicant's evidence about his involvement with HADEP, or his father's activities.
12 RRT:
- rejected the applicant's original claim that he had been a member of HADEP since 1993, and found that he did not become a member until December 1995;
- did not accept that the applicant was an active member of HADEP or closely involved with his father's activities or that he was threatened or persecuted for those reasons;
- rejected his version of the 1995 May day demonstration.
13 RRT considered the same country information in relation to persecution as an Alevi as it had considered in relation to Deniz's application. However, Ibocan had made some specific claims as to particular adverse experiences as a Kurdish Alevi. Of these claims RRT said:
"Having regard to the evidence before it, the Tribunal is satisfied that Alevis in Turkey do not face persecution or experience systematic harassment by the authorities. The Tribunal is also satisfied that police checking of identification at gatherings of young men, when the Applicant was reading newspapers and magazines, did not interrupt worship or a religious service and in all the circumstances did not amount to persecution. Nor does the passing of remarks by the Applicant's Sunni work colleagues, whether during Ramadan or otherwise, amount to persecution. The Tribunal also notes that the Applicant was not denied employment because he was an Alevi. It does not appear from the evidence that the Applicant was ever harmed or arrested or detained because he is an Alevi.The Tribunal is satisfied that the Applicant does not have a well-founded fear of persecution on the basis of his religious beliefs or identify as an Alevi."
14 RRT reached the same conclusion with respect to whether "simply being a Kurd of itself" gives rise to a real chance of persecution as it had reached in the case of Deniz's application, and for the same reason. However, in addition, Ibocan relied upon personal experiences which he claimed amounted to discrimination as a Kurd. RRT was not satisfied that this was so. As this aspect of the matter was not the subject of any ground on which review was sought, it is not necessary to pursue those personal experiences any further.
15 Ibocan claimed that he did not wish to do military service because he would be forced to fight against Kurds and against friends and family who were assisting the TKP-ML or the PKK.
16 The applicant's main concern was in relation to his anticipated treatment in the army because of his Kurdish ethnicity and his political opinions. RRT found that there was no evidence before it which established that persons of Kurdish ethnicity are persecuted within the Turkish military, and given its findings about the applicant's claims as to his political profile, RRT did not accept that he would be persecuted within the military for that reason. RRT was not satisfied that undertaking military service would give rise to a real chance of persecution of the applicant for a Convention reason.
Sevda Celik
17 Sevda was not a member of HADEP. She claimed no political involvement or profile other than assisting her father with distribution of material and posting of posters. She did not claim either to have been arrested or harmed in relation to that activity. RRT was satisfied that the applicant has not been detained or harmed because of her actual or imputed political opinion, and that her role in relation to HADEP involved nothing more than providing incidental assistance to her father. Insofar as her case was based upon the brothers' claimed political activities, it failed for the same reason.
18 As to persecution as an Alevi, RRT considered the same country information as it had considered in relation to her brothers. RRT concluded:
"... the Tribunal is satisfied that Alevis in Turkey do not face persecution or experience systematic harassment by the authorities. That is not to say that an individual Alevi may not be targeted for this or some other reason and the Tribunal must therefore consider the Applicant's particular circumstances."
19 RRT then went on to consider particular claims which this applicant had made and came to the conclusion that it did not accept that the applicant had been prevented from practising her religion and was satisfied that she did not have a well-founded fear of persecution on the basis of her religious beliefs or identify as an Alevi. Nor was RRT satisfied that this applicant had encountered, or that she faced a real chance of, harm or mistreatment amounting to persecution, by reason of her Kurdish ethnicity.
Grounds of review
20 The first ground on which review is sought is a contention that RRT failed to consider the cumulative grounds on which the fear of persecution was based, namely, ethnic origin (Kurdish), religious denomination (Alevi) and political opinion (HADEP party). It was put that the HADEP party is the legal branch of the PKK. There is no finding by RRT to that effect, nor would the material to which I was taken, sustain such a conclusion.
21 RRT was required to consider whether any of the applicants would be persecuted for a Convention reason if returned to Turkey. All relevant circumstances are to be taken into account in making that assessment. If a person has three qualities which are germane to the question of whether there is a real chance of persecution, then the question is to be answered on that basis. It would be wrong to find that such a person was not exposed to a real chance of persecution where no one of those characteristics would be sufficient to lead to that conclusion, if possession of all three did so. In Thanh Phat Ma v Billings (1996) 71 FCR 431 Drummond J said:
"... the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect."
The probability analysis described by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [49] emphasises the importance of considering the cumulative effect of relevant matters.
22 RRT was alive to the fact that it was being asked to assess the likelihood of persecution by reference to cumulative grounds. For example, in the case of Deniz at RD 164 RRT said:
"It was submitted that ... the cumulative effect of his status as an Alevi Kurd and a perceived political opponent of the Turkish authorities means that he continues to face a risk of persecution."
And, on a fair reading of RRT's decision, I do not think that it fell into the error which is attributed to it. RRT accepted that whilst the mere fact that the person is an Alevi Kurd would be insufficient to give rise to a real chance of persecution, the position might be otherwise if the person was an active proponent of Kurdish separatism or of the PKK. But, on RRT's findings, none of these applicants possessed that additional quality. In the cases of Ibocan and Sevda other particular circumstances were relied upon in addition to the fact that they were Alevi Kurds. RRT assessed these additional circumstances and came to a conclusion that they did not give rise to a well-founded fear of persecution for a Convention reason.
23 On a fair reading of RRT's decision, I think that RRT assessed each of these applicants as it found them to be, rather than, as the applicants submit, on the basis of some notional and artificial compartmentalisation. Accordingly, this ground on which review is sought fails.
24 The second ground on which review is sought is that evidence given by two independent witnesses, the aunt and uncle of the applicants, was not the subject of any findings.
25 The uncle left Turkey in 1985 when the applicants were young children. The aunt left Turkey in February 1996. She did state that Deniz and Ibocan Celik had been involved in HADEP assisting their father, and she asserted that over a period of years the authorities had persecuted the family because of its political profile. In its decisions concerning Deniz and Ibocan Celik RRT's conclusion in relation to the evidence of the aunt and uncle was as follows:
"The evidence of these two family witnesses was not first-hand with regard to the particular incidents from 1995 onwards relied upon by the Applicant and was therefore not helpful in resolving the specific matters concerning which the Tribunal had difficulties, as already discussed. The evidence of the various witnesses in this case (all members of the Applicant's family) did not persuade the Tribunal that it might be mistaken in its findings about the Applicant's credibility, his alleged difficulties or the fabricated court document."
In my opinion RRT was entitled to adopt the approach which it did. It made quite specific findings on the applicants' central claims, explaining why it rejected those claims, and it explained why it found the evidence of the uncle and aunt to be of no assistance.
26 The third ground on which review is sought is that RRT erred in applying the "real chance test" inasmuch as it should have asked itself the question "what if I am wrong", but failed to do so.
27 RRT made specific findings of fact. There is nothing in the reasons for decision of RRT which would justify a conclusion that it entertained doubts in relation to the findings which it made. In Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [67] Sackville J said:
"If a fair reading of the reasons as a whole shows that the RRT itself had `no real doubt' (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution."
The application of these principles to the facts of the present case reveals no error on the part of RRT in failing to pose or respond to the question: "what if I am wrong?"
28 The fourth ground of review is confined to Ibocan. RRT accepted that in 1993 Ibocan was questioned for a number of hours the day after he attended a family dinner with his uncle, in whom the authorities had an interest as a member or suspected member of an illegal organisation. RRT was satisfied that the purpose of the questioning was to seek information about the uncle, and not as a result of the applicant's own actual or imputed opinion.
29 At RD 145 the Tribunal said:
"The Applicant stated that after this every month or two the police would come to his place of work and question him, including about his uncle who they accused of being a member of the TKP-ML."
The ground of review is a failure on the part of RRT to make a finding as to whether or not it accepted the evidence which I have quoted. The significance of the supposed omission is that if RRT had accepted this evidence of repeated questioning, it might suggest that the purpose of the questioning was not confined to the uncle's activities.
30 It is probably fair to say that RRT did not make a specific finding in relation to this evidence. But, it is a failure which appears to me to lead nowhere. The evidence is vague and general in character, and its essential thrust is upon the position of the uncle, rather than upon that of the applicant himself.
31 The fifth ground of review is confined to Ibocan. The ground is that RRT made an adverse credit finding against Ibocan without taking into account the corroborative evidence given by the uncle and aunt. No attempt was made to put before me the evidence which either the uncle or the aunt gave to RRT, and so I am dependent upon RRT's reasons for an indication of the nature of the evidence which they gave.
32 RRT's conclusion in relation to the evidence of the uncle and aunt is set out at par 25 above. In the light of this finding, the ground on which review is sought is untenable. RRT did take into account the evidence of the uncle and the aunt, but having taken it into account was entitled to conclude, as it did, that it was of no assistance.
33 The sixth ground of review is peculiar to Ibocan. It relates to the issue of military service. At RD 164 RRT said:
"There was no evidence before the Tribunal which established that persons of Kurdish ethnicity are persecuted within the Turkish military."
It was submitted that there was in fact evidence before RRT which established that matter.
34 Reliance was placed upon matters which appeared at pp 48 and 49 of the Independent Country Information. At p 48 the following appears:
"Since 1984 the separatist PKK has waged a violent terrorist insurgency in south east Turkey, directed against both security forces and civilians, almost all of them Kurds, whom the PKK accuses of cooperating with the State. The TNP, Jandarma, and armed forces, in turn, have waged an intense campaign to suppress terrorism, targeting active PKK units as well as persons they believe support or sympathize with the PKK."
Neither this evidence, nor the cable on p 49 supports the proposition for which the applicant contends. There was evidence that the government attacks the PKK as well as persons believed to support or sympathise with the PKK. There was, however, nothing to suggest that the military was attacking Kurds as such. Nor did any of the material to which I was taken support the conclusion that HADEP and the PKK are interchangeable.
35 The seventh ground on which review is sought was confined to Sevda's application. The ground is that the Tribunal erred in failing to set out its findings in respect of Sevda's claim that she was assaulted on two occasions at the Nevroz celebrations in March 1994 and March 1995.
36 Sevda stated that in March 1994 and March 1995 she was celebrating an annual Kurdish feast (Nevroz) with a group of people when the police came and broke up the celebrations with batons in the course of which she was hit. At the hearing, the applicant made a new claim of having been arrested at the 1995 Nevroz celebrations. RRT came to the conclusion that she had significantly embellished her account of what had occurred on this occasion, and that she had deliberately claimed to have been arrested when she was not.
37 Leaving aside the issue of arrest, the 1994 and 1995 incidents at the Kurdish feast of Nevroz were said to be significant because they amounted to persecution of the applicant and others motivated by a desire to oppress the expression of Kurdish national sentiment.
38 At RD 179 RRT said:
"The Applicant's claim is that local Nevroz celebrations in which she participated in March 1994 and March 1995 were physically broken up by the police. She later claimed that she was arrested at the gathering in March 1995. The Applicant has described Nevroz (in her April 1997 statutory declaration) as an annual celebration to herald the birth of a Kurdish nation, and as such it might be perceived as a specifically separatist gesture.The Applicant's belated claim that she was arrested at the Nevroz gathering in 1995 has already been discussed. The Tribunal was not satisfied that the claim was true."
Then RRT addressed submissions by the applicant's adviser to the effect that Kurds celebrating Nevroz are at risk of detention, and for reasons which it gave, rejected that submission. It concluded:
"Having regard to the evidence before it and its findings about the Applicant's credibility, the Tribunal is not satisfied that the Applicant has encountered (or faces a real chance of) harm or mistreatment amounting to persecution by reason of her Kurdish ethnicity."
39 The respondent submitted that having rejected the claim of arrest, RRT had implicitly rejected the claim that the police had broken up the celebration with batons, in the course of which the applicant was hit. Reliance was placed on the approach adopted by Gleeson CJ and McHugh J in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 [85]. I do not think this is the correct way of approaching the matter, as it only applies where the matter not referred to is consequential upon the matter rejected. That is not the case here.
40 Nor do I think that it necessarily follows from the Tribunal's adverse finding as to this applicant's credibility that her claims, other than the arrest claim in relation to the Nevroz festivals, have been rejected.
41 I therefore think that it is correct to say that RRT has not made a specific finding on this aspect of the applicant's evidence. It would have been better had RRT done so. However, in the overall scale of things it seems to me that the omission is a very minor one which would have little, if any, bearing on the overall assessment of the applicant's case. That it is of a minor nature is reinforced by the applicant's and her adviser's unsuccessful attempts to elevate the incidents to a higher plane by endeavouring to show that Kurds celebrating Nevroz are at risk of detention. In addition, and importantly, having set out the allegations concerning the Nevroz festival, RRT squarely addressed the issue to which those claims were directed: whether the applicant's Kurdish ethnicity was a reason for alleged persecution. RRT's conclusion is recounted at par 38 above.
42 The eighth ground on which review is sought was raised in the context of Sevda's application. It was said that the finding that "simply being a Kurd of itself" does not give rise to a real chance of persecution involved a reviewable error.
43 The error was said to be exposed by the Department of Foreign Affairs & Trade ("DFAT") cable extracted at pp 178-179 which states that Kurds who make an effort to stand out by their activities may be subject to discrimination.
44 In my opinion, no error, or reviewable error, is shown in relation to the matter complained of. RRT made it plain in relation to this applicant as well as in relation to the other applicants that consideration had to be given to whether in addition to being of Kurdish ethnicity, the person in question was an active proponent or supporter of Kurdish separatism.
45 The final ground of review was again, in relation to Sevda. The complaint is that RRT had no regard at all to the evidence of the aunt and uncle which, although given during the hearings in relation to the brothers' claims, was part of the material before the Tribunal in Sevda's case.
46 I have rejected the claim made on behalf of the brothers that there was a reviewable error on the part of RRT in its treatment of the evidence of the aunt and uncle. Sevda cannot be in any better position than Deniz and Ibocan in this respect. This ground of review fails.
47 Having regard to the conclusions to which I have come, it has not been necessary for me to give close attention to the question as to whether if material errors were established, they would have been reviewable errors in terms of Part VIII of the Migration Act 1958 ("the Act"). Section 430 and s 476(1)(a) of the Act were principally relied upon by the applicant, but reference was also made to s 476(1)(e). Counsel for the Minister formally submitted that if there were a failure to comply with s 430 of the Act that would not enliven the jurisdiction of the Court under s 476(1)(a), but it was, I think, accepted that I would not be justified in upholding that submission having regard to Full Court authority which has proceeded upon a different basis.
48 For those reasons, each application will be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. |
Associate:
Dated: 17 December 1999
Counsel for the Applicants: |
P M Gwozdecky |
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Solicitor for the Applicants: |
G H Healey & Co |
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Counsel for the Respondent: |
B J Skinner |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
25, 26 November 1999 |
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Date of Judgment: |
17 December 1999 |
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