Yildrim v Minister for Immigration & Multicultural Affairs [1999] FCA 429 (7 April 1999)

Last Updated: 18 May 1999

FEDERAL COURT OF AUSTRALIA

YILDRIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [1999] FCA 429

MIGRATION Applicant given notice of Refugee Review Tribunal hearing but failed to attend - whether incumbent on the Tribunal to contact the applicant before giving its decision.

Migration Act 1958 (Cth) ss 420, 425, 427, 476(1)(a), 476(1)(e)

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 cited

Minister for Immigration and Multicultural Affairs v Capitly (Wilcox, Hill and Madgwick JJ, 5 March 1999, unreported) cited

SAHIN YILDRIM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO NG 1237 OF 1999

MATHEWS J

7 APRIL 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1237 OF 1999

BETWEEN:	SAHIN YILDRIM Applicant
AND:	MINISTER FOR IMMIGRATON AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MATHEWS J
DATE OF ORDER:	7 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 1237 OF 1999

BETWEEN:	SAHIN YILDRIM Applicant
AND:	MINISTER FOR IMMIGRATON AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MATHEWS J
DATE:	7 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 22 October 1998 in which the Tribunal refused the applicant's application to remain permanently in Australia under a protection visa. The application to this court is based on paras 476(a) and (e) of the Migration Act 1958 ("the Act").

2 The factual background is in short compass. The applicant was born in Turkey on 4 March 1963. In his visa application form, he gave his place of birth as Istanbul, although on other documentation he said that he was born in Sivas, a predominantly Kurdish province in the south east of Turkey.

3 For about 10 years between 1977 and 1987, the applicant was a seaman with various Turkish shipping lines. On 19 October 1987, he left Turkey on a Turkish passport and arrived in Australia the following day. He said in his application form that his passport was later stolen from him and that he was left with no identification documents. According to his visa application he has no close relatives in Australia and no family members in Turkey or anywhere else.

4 It was not until 26 June 1997, after he had been detained by the migration authorities, that the applicant first applied for a protection visa. In his application he described his ethnic group as Kurdish and his religion as Muslim. He gave no information in support of his claim for refugee status. In those parts of the application form which requested this information, he said, "see attached", but there was no attached documentation.

5 The applicant was not interviewed by the immigration authorities. On 10 July 1997 his application was refused by the respondent's delegate on the basis that no claims had been advanced in support of the application. On 8 August 1997, the applicant sought review of this decision from the Tribunal. In his application for review, he said:

I don't agree with the Department's decision because I have a well-founded fear of persecution in Turkey. I will submit my fear of persecution in due course.

6 On 1 September 1997, a migration agent, Mr Zadourian, wrote to the Tribunal saying that the applicant was seeking Australia's protection on the basis that he had suffered persecution in Turkey by reason of being a Kurd and an Allevi Muslim. He had a well-founded fear of persecution in Turkey by reason of his race, religion and nationality. Enclosed with the letter were several testimonials which attested to the fact that the applicant was a Kurd. One of these testimonials, apparently signed by four people, said that they had known the applicant for a long time, that he was born in Sivas province and that "His family and himself are from Kurdish background". This contradicted the information in the applicant's visa application, both as to the applicant's place of birth and also as to the non-existence of any family members.

7 Several work references were also produced, which attested to the fact that the applicant was a punctual, diligent worker. More importantly, there was a statement from the applicant himself. In it he said that because of his Kurdish background he was detained twice in Turkey before his departure for Australia. He said that he would have been killed had he remained in Turkey and that he sought to remain in Australia in order to avoid the persecution that would be awaiting him should he return to Turkey.

8 Not all the information contained in this statement was consistent with other material before the Tribunal. By way of illustration, the applicant said in his statement that he had had difficulty obtaining his passport. In his visa application form he said that his passport had been obtained without difficulty. He also appeared in his statement to be saying that after his arrival in Australia, the Immigration Department retained his passport, thus depriving him of his only overseas identification. This is in contrast to what he had said in his visa application form, namely that his passport had been stolen from him together with his personal possessions.

9 Very significantly, the Tribunal also had before it a letter dated 23 July 1997 from the Australian Kurdish Association, addressed to the applicant's migration agent, a copy of which had been sent to the Department. Its relevant portion is in the following terms:

I am writing you regarding Mr Sahin Yildrim, whom you have referred to our Association. As he did not show us enough evidence about his nationality, we are not able to confirm that his is from Kurdish origin. We believe that he has given false information to you regarding his nationality.

10 On 28 September 1998, the Tribunal wrote to the applicant, telling him that it was unable to make a favourable decision on the basis of the papers alone. It invited him to attend a hearing of the Tribunal and to give oral evidence in support of his claim. The hearing date specified in the notice was 20 October 1998. On 10 October 1998, the applicant responded to the hearing offer, indicating that he proposed to attend on that date and to bring two witnesses with him. On 14 October, he sent a further form to the Tribunal indicating his intention to call a third witness. However, on 20 October, neither the applicant nor any of his witnesses attended at the Tribunal. No explanation was provided for their absence. Accordingly, the Tribunal dealt with the matter on the papers, and gave its adverse decision two days later. In view of the conflicting material before it, the Tribunal said that it was not satisfied that the applicant was a Kurd and was therefore not satisfied that he would suffer any harm in Turkey because of his race or nationality. Nor could the Tribunal be satisfied as to the applicant's religion. By extension, it could not be satisfied that he might be discriminated against because of it. Accordingly, the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa.

11 At the hearing before me, Mr Diab who appeared for the applicant, sought to amend the grounds upon which the application to this court was based. The respondent, represented by Ms Hartstein of Counsel, consented to this course. Accordingly, the two grounds which are now relied upon by the applicant are, first, that the Tribunal did not observe the procedures which were required to be observed under the Act, (s 476(1)(a)) and secondly, that the decision involved an error of law, (s 476(1)(e)). Both grounds go together. It was contended by Mr Diab that, in accordance with the decision of Davies J in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, a failure by the Tribunal to observe the procedural requirements specified in the Act was sufficient to support both grounds.

12 In this regard, Mr Diab submitted that the Tribunal failed to comply with the procedures required by ss 420, 425 and 427 of the Act. Dealing first with the latter two sections: s 425 of the Act, when read in conjunction with s 424, requires the Tribunal, if it is not prepared to find in favour of an applicant on the basis of the papers alone, to give the applicant an opportunity to appear before it and to give evidence. The Tribunal is also empowered, although not obliged, to obtain such other evidence as it considers necessary.

13 Section 427 sets out the powers of the Tribunal for the purpose of reviewing decisions. Subsection (3), relied upon by Mr Diab, entitles the Tribunal to summon a person to appear to give evidence or to produce documents. Finally, and most importantly, s 420(1) requires the Tribunal, in carrying out its functions under the Act:

To pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

14 Mr Diab submits that the requirements of s 420 go beyond those of s 425. In the circumstances of this case, he says that the Tribunal was put on notice that the applicant wanted to give evidence himself and also wanted to call three witnesses in support of his case. Given this background, and bearing in mind the extreme consequences to the applicant of a rejection of his application, the Tribunal should have given the applicant an opportunity to explain why he and his witnesses failed to attend on 20 October. In failing to do so, and in then giving its adverse decision only two days later, on 22 October, the Tribunal did not provide a fair and just mechanism for review as required by s 420 of the Act.

15 No admissible evidence has been adduced before me as to why the applicant failed to appear before the Tribunal on 20 October 1998. Mr Diab said in his submissions that the applicant simply mistook the date for 28 October. How he could have done this, given that he himself signed the relevant forms, is not sought to be explained. In any event, the relevant issue here is not the reason why the applicant failed to attend the Tribunal, but whether the Tribunal erred in determining the matter in his absence.

16 In Minister for Immigration and Multicultural Affairs v Capitly (Wilcox, Hill and Madgwick JJ, 5 March 1999, unreported) the Full Court of this Court upheld the decision of a single judge which found that the Tribunal had not complied with its obligation under s 425 of the Act, in circumstances where there was evidence that the Tribunal had been alerted before the making of its decision that the applicant had not attended to give evidence because he was ill. However this is not such a case. Serious as the consequences were to the applicant, the Tribunal had, in my view, done all that was necessary or required under ss 420 or 425 when it gave its decision on 22 October 1998. The applicant had personally been notified of the hearing on 20 October. He had personally responded to that notification. There was no explanation for his failure to attend and the Tribunal was not, in my view, required to seek one before it proceeded to deal with the matter upon the material before it.

17 Accordingly, I can find no error on the part of the Tribunal. The application is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated: 7 April 1999

Solicitor for the Applicant:	John H Maait & Co.
Counsel for the Respondent:	Ms V. Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 April 1999
Date of Judgment:	7 April 1999