Huseyin Taner v Minister for Immigration & Multicultural Affairs [1999] FCA 19 (20 January 1999)

Last Updated: 20 January 1999

FEDERAL COURT OF AUSTRALIA

Taner v Minister for Immigration & Multicultural Affairs [1999] FCA 19

MIGRATION - refusal of protection visa - challenge to facts found by Refugee Review Tribunal - procedures in connection with fact-finding - whether findings of fact open on material before Tribunal - no ground of review made out

Migration Act 1958 ss 420(2)(b), 476(1)(a) and (e)

Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 applied

HUSEYIN TANER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 539 OF 1997

WHITLAM J

20 JANUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 539 OF 1997

BETWEEN:	HUSEYIN TANER Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WHITLAM J
DATE OF ORDER:	20 JANUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is 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
VICTORIA DISTRICT REGISTRY	VG 539 OF 1997

BETWEEN:	HUSEYIN TANER Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WHITLAM J
DATE:	20 JANUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of the respondent's delegate to refuse to grant the applicant a protection visa. The applicant had claimed to be a refugee under the well-known Convention definition of refugee for reasons of race and political opinion.

2 The applicant is a Turkish citizen. He is also a member of the Laz people, who are a minority ethnic group in Turkey. The applicant had claimed to be a member of Devrimci Sol (Revolutionary Left). This is an organization usually referred to by the abbreviation Dev Sol. It has been banned in Turkey since 1980.

3 A seaman, the applicant deserted his ship in Australia on about 20 August 1996. His application for a protection visa and his application for review by the Tribunal were prepared by his solicitor who is also a migration agent. With his visa application, which was lodged on 16 October 1996, the applicant supplied a handwritten statement claiming "harassment, discrimination and persecution, detention, arrest and torture at the hands of the [Turkish] authorities". He was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 2 December 1996. His solicitor subsequently sent the Department a report on Dev Sol by one Paul J. White, whom the solicitor described as "an academic expert on Turkish matters at Deakin University". On 5 February 1997 the respondent's delegate refused to grant a protection visa to the applicant. He applied for a review of that decision by the Tribunal.

4 The Tribunal fixed a hearing for 24 June 1997. Prior to that date the applicant's solicitor sent the Tribunal a press clipping from the Turkish daily newspaper Cumhuriyet of 25 June 1996 and a report by a Dr Fogarty from the Brunswick Community Health Centre. At the hearing on 24 June 1997 oral evidence was given by Dr Fogarty, as well as the applicant, who completed his evidence on 30 June 1997. (Transcripts of both days of the hearing are in evidence.) Afterwards the applicant's solicitor sent the Tribunal, first, a report by a consultant psychiatrist, which he had foreshadowed at the hearing and, later on 9 July 1997, three pages from the March 1995 number of Devrimin Sesi (Voice of the Revolution), an organ of the Turkish Revolutionary Communist Party. On 18 August 1997 the Tribunal made its decision that is the subject of the present application for review.

5 Certain milestones in the applicant's life are uncontroversial. He was born on 6 March 1972 in Turkey in Samsun on the Black Sea. After finishing school in 1991, the applicant worked on ships until he was called up for military service at the end of 1992. He was discharged in May 1994 and returned to sea.

6 The applicant's claims to refugee status may be summarized as follows. At school he suffered discrimination on account of his Laz ethnicity. He joined Dev Sol and his involvement with that organization brought him to the attention of the authorities. Whilst he was still at school, the police arrested him and detained him for two days, during which he was tortured. When he left school, the applicant became increasingly active in Dev Sol. The police continuously harassed him and, at times when he was detained for questioning, his family worried that he would "disappear". This pattern continued whenever he came home on shore leave. In the army he was sent to eastern Turkey to fight against the Kurds because the Turkish authorities deliberately set one minority group against another. After his discharge from the army, the applicant was arrested and detained for twenty-five days. At the end of 1994 he was discharged from a ship in Germany when he contracted tuberculosis and, upon being repatriated to Istanbul in February 1995, his passport was seized by Turkish authorities. The applicant returned to Samsun and resumed his activities with Dev Sol. In March 1996 he and some comrades from Dev Sol brawled with members of a right-wing extremist group during which shots were fired by one of his friends, who was armed with a gun, and two of the other group were wounded. In order to avoid arrest, the applicant went into hiding for fifteen days. He then decamped to Istanbul where he paid a bribe to recover his passport. A shipping company engaged him as part of a crew which was flown out to Brazil in order to man the ship on which he subsequently arrived in Australia. En route to Australia he telephoned home from Thailand and was told that, following the brawl, his friends had been arrested and tortured and that he had been accused of the shooting.

7 The Tribunal's reasons for decision comprise fifteen-and-a-half pages. They set out, in much greater detail than I have, a description of the applicant's background and of his case. It appears, from so much of the material that was before the Tribunal and is also in evidence in the present proceeding, that the Tribunal has carefully pieced together the applicant's story as it unravelled in its various versions and as it was supplemented by information from his solicitor, with proper regard being paid to any difficulties in translation. I do not understand there to be any criticism of this part of the Tribunal's statement.

8 The present challenge to the Tribunal's decision rests primarily on its fact-finding. The Tribunal said on the question of race (p 10):

". . . while it is likely that there is some discrimination against Laz people, the Tribunal does not believe it is of the extent described by the Applicant. It does not accept that he was denied education, failed at school or denied employment because he is a Laz. He finished school and found work in an occupation that was commensurate with his qualifications. He was also able to obtain documentation that permitted him to move freely in and out of the country. He claims that he was sent to the Kurdish front because of his ethnicity, but none of the evidence before the Tribunal supports the claim that there is such a policy. The Tribunal concludes he was unfortunate enough to be among a batch of conscripts who served at the Front, regardless of Convention reasons. The fact that he kept on returning to his home is strongly supportive of a conclusion that he was not in fear of persecution because he is a Laz or, for that matter, for any other reason that focuses on that geographic location. The Tribunal accepts that the Applicant may have suffered some low key discrimination from members of the general public, but it does not accept that there was any official discrimination against him."

9 It also concluded that the applicant was never a member of Dev Sol and went on to say (pp10-11):

"The Tribunal similarly finds that the Applicant was not involved in any Dev Sol activities, even as a non-member, nor was he suspected of such participation. Despite his claims that he was constantly harassed from 1988 or so and that he was known as a Dev Sol member, he frequently returned to the village where he states his political opinions and affiliations were known to the authorities. In spite of such knowledge, he was permitted to continue his schooling and then obtain employment, notwithstanding the ongoing brutal suppression of Dev Sol activities and its members and supporters by government security agencies. Given that Dev Sol is one of the organisations that is subjected to violent military repression, it defies credulity that the [sic] would be arrested and released if he was known to be a member and he was truly believed to be associated with that organisation. Nor would he have been taken into the Army and allowed to remain there without harassment if he was known to oppose the policies of the government. The evidence . . . demonstrates that Turkish security forces are ruthless in dealing with suspected members of left-wing organisations, particularly those that resort to violence such as Dev Sol." (Emphasis supplied.)

10 After reviewing the available information about Dev Sol, the Tribunal stated (p 13):

"The Applicant claimed that he continued to carry out left-wing activities within a relatively small community and that security officials and right wing extremists linked with those officials' organisations were aware of his political affiliations and activities, while the authorities actually knew of his Dev Sol membership. The Tribunal does not accept that the Applicant was involved in left-wing political activities or that he was suspected of such involvement. His own conduct in continually returning to the location of his alleged persecution when he could have sought refuge elsewhere in Turkey is completely at odds with a conclusion that he feared persecution on account of being a member of a proscribed terrorist group that was subjected to ruthless and violent reprisal by government forces and fascists, such as members of the MHP [Milliyetçi Hareket Partisi (Nationalist Action Party)]. Similarly, his claim that he was released by the authorities despite the fact that he was known to be a member of Dev Sol is completely at odds with evidence from other sources about the treatment of Dev Sol members or suspected members and supporters, particularly as he claimed he was a key figure in his branch with access to vital information."

11 The Tribunal declined to infer that the payment of a bribe suggested the applicant was wanted by Turkish authorities. It concluded on this topic (p 14):

"If he was suspected of involvement with terrorist groups, the Tribunal finds he would not have been able to obtain proper documentation and negotiate security procedures on several occasions. It also finds that resort to bribes or contacts was unrelated to Convention reasons or a fear of persecution, but was undertaken merely to facilitate the administrative procedures that were of benefit to the Applicant in obtaining desired employment."

12 So far as the applicant's ship-jumping and asylum-seeking were concerned, the Tribunal said (pp 14-15):

"The Applicant stated that he would be interrogated for jumping ship and would be punished for that reason, together with punishment for seeking asylum and involvement in Dev Sol. The Tribunal has not accepted the claims regarding Dev Sol and finds that questioning of the Applicant on his return would not disclose any dissident political opinions or affiliations. The information available to the Tribunal leads to the conclusion that any fears he harbours for reason of jumping ship would be ill-founded."

After referring to the information on the treatment in Turkey of ship-jumpers and asylum-seekers, the Tribunal said (p 15):

"The acceptable evidence left before the Tribunal is that the Applicant did not flee Turkey out of fear of persecution arising from affiliation with Dev Sol, although he may have had subjective fears of persecution on account of his race, notwithstanding such fears were, and remain, ill-founded. If the Applicant encounters difficulties for jumping ship they would be the result of him failing to complete whatever agreement he had with his employer."

13 The subject of the brawl was dealt with at the end of the reasons, where the Tribunal said (p 16):

The Applicant states that he was involved in a fight in which two people were seriously wounded. He states that he has been blamed for inflicting the injuries, although he did not do so. If that is the reason he fled the country, it is a reason that is unrelated to the Convention. Rather it is an attempt to escape punishment for criminally wounding somebody. He may face some questioning in relation to jumping ship if he returns, and if he is wanted for committing a crime that may come to light. However, the consequences of that are outside the ambit of the Convention. The Tribunal does not accept that being involved in a fight which resulted in people being injured will result in him being punished for reason of an imputed political opinion. He may also have difficulty in obtaining further contracts as a sailor, although that also is unrelated to the Convention as it arises from a breach of a contract with his employer.

The Human Rights reports before the Tribunal indicate that members of Dev Sol and people perceived to be sympathetic to its cause may be at risk of serious harm, together with Kurdish separatists and other political activists and supporters perceived to oppose the ruling authorities. The Applicant has not been involved in any political group in Turkey, nor is there acceptable evidence that he is suspected of affiliation with any dissident group or will be imputed with a dissident political opinion. His ability to obtain consent and documentation to work in the merchant navy and depart and return to the country, supports the finding that the authorities have no adverse interest him [sic].

There is ample evidence to support the conclusion that Turkey has a bad record on human rights, but that evidence does not support the conclusion that there is a real chance the Applicant will be persecuted on account of his political opinions or any other Convention reason. Nor, as discussed above, does it support a conclusion that he faces a real chance of persecution regarding his desertion of his ship and for seeking asylum. He may face some low-key discrimination because he is a Laz, but that is the only consequence of issues related to the Convention. Any other harm he may encounter would arise exclusively from criminal or contractual matters that are unrelated to the reasons in the Convention and would not compound minor discrimination based on race. (Emphasis supplied.)"

14 Before dealing with the grounds of challenge to the Tribunal's decision, I should also mention the medical evidence before the Tribunal. Dr Fogarty saw the applicant six or seven times between December 1996 and the Tribunal hearing. He confirmed the past tuberculosis. More importantly, he diagnosed the applicant as suffering from post-traumatic stress disorder ("PTSD"). The traumatic events that the applicant described to Dr Fogarty were his detention by the police as "part of a political group" and his subsequent torture and his participation in army activities against the Kurds. Dr Fogarty referred him to Dr Ian Jackson, the consultant psychiatrist whose report was subsequently received by the Tribunal. Dr Jackson also thought that the applicant was suffering from PTSD. In particular, Dr Fogarty cautioned that the applicant's "ability to recall and concentrate is significantly impaired by recall of traumatic events in the army". The transcript reveals that the Tribunal heeded this advice during the hearing. It said in its reasons for decision (p 14):

"While the Tribunal does not accept that the Applicant has been harassed because of his political opinions, it is apparent from Dr. Jackson's opinions [sic] that he suffers from the symptoms of PTSD. That opinion was based on the same claims that the Applicant made in his refugee application, despite
Dr. Jackson's observations that the Applicant was "rather agitated and guarded" at his first consultation and "slightly guarded and irritable" at his second. As those claims regarding political persecution are not accepted as being factual by the Tribunal, it seems that the experiences of the Applicant during his military service may be the cause of his current symptoms. The Tribunal finds that to be the case and confirms the conclusion that, unfortunate as his psychiatric symptoms are, his experiences during military service were not Convention-based.

15 The applicant relies upon the grounds specified in pars 476(1)(a) and (e) of the Migration Act 1958 ("the Act"). It is submitted that a failure to comply with the requirement in par 420(2)(b) of the Act to "act according to substantial justice and the merits of the case" is a failure to observe procedures required to be observed in connection with the making of a decision for the purposes of par 476(1)(a): Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. I will assume that this is so: Calado v Minister for Immigration & Multicultural Affairs [1998] FCA 1532.

16 In the present case the applicant submits that the Tribunal made no finding about his account of detention and torture by the police, that it did not consider his PTSD and that it made findings of fact unsupported by probative material. In those respects, it is said, the obligation imposed by par 420(2)(b) of the Act was not observed.

17 The first two submissions are plainly wrong and must be rejected. The passage last set out above from the Tribunal's statement shows that it accepted that the applicant suffered from PTSD. (I have already said that at the hearing the Tribunal was astute to follow the medical advice and to avoid questioning about atrocities during the applicant's military service.) More significantly, what that excerpt also contains is the Tribunal's finding that the applicant's PTSD was solely attributable to his military service. It is clear that the Tribunal did not accept that the other traumatic event described to the doctors ever took place. No doubt, it could have said so more explicitly, but the Tribunal had already expressed its disbelief of the applicant's claims to have been arrested and released by the police. (The word "credulity" in the Tribunal's reasons must be a misprint for "credibility".)

18 The third submission rests on what Finkelstein J said about the content of the obligation imposed by par 420(2)(b) in an earlier case that his Honour again referred to in Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 397 at 406-407:

"I considered these issues in Thambythurai v Minister for Immigration and Multicultural Affairs (Fed C of A, Finkelstein J, 16 September 1997, unreported). There I expressed the view that s 420(2)(b) did impose a procedural obligation on the tribunal requiring it to act rationally and reasonably. The tribunal would not be acting rationally or reasonably if it made a finding of fact upon which its decision was based that was not supported by probative evidence. The tribunal would also fail to act rationally and reasonably if it failed to rationally consider the probative evidence that was before it."

That decision has since been reversed: Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1. Black CJ, von Doussa and Car JJ disagreed with the additional obligation identified by Finkelstein J. Their Honours emphasized that it was only necessary for there to be "some basis" for an inference drawn by the Tribunal.

19 Here the findings of fact singled out for attack were well open on the material before the Tribunal. Only two of them could be described as other than peripheral to the Tribunal's decision. The rejection of the applicant's important claim that Laz servicemen were sent to the Turkish front on account of their ethnicity rested on information in a variety of sources earlier cited by the Tribunal. So too, the finding about bribes facilitating administrative procedures was based on the information in a publication of the Department of Foreign Affairs and Trade that is referred to in the Tribunal's statement.

20 The challenge to the facts found by the Tribunal fails. The applicant submits, however, that the Tribunal's decision involved an error of law covered by par 476(1)(e) of the Act. It is said that the Tribunal failed to speculate about the "real chance" of persecution as required by Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. The applicant fixes particularly on the fact that he jumped ship and claimed asylum. But the Tribunal plainly speculated upon the chances of persecution emerging from that fact, as the passages set out above show. Nor has the Tribunal, contrary to the applicant's submission, failed to consider whether the possibility of charges arising out of the shooting incident could found a fear of persecution for a Convention reason. The language used by the Tribunal shows that it was alert to the need to consider whether a political opinion might be imputed to the applicant by the Turkish authorities, quite apart from the question of whether he actually held such an opinion. Of course, the Tribunal had to do this even though it did not find that the applicant, in fact, had a subjective fear of persecution for reason of his political opinion. In any event, a fair reading of the Tribunal's reasons does not suggest that it foreclosed reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material before it.

21 None of the grounds of review has been made out. The application will be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 20 January 1999

Counsel for the Applicant:	D S Mortimer
Solicitors for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	P R D Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 1998
Date of Judgment:	20 January 1999