Balli v Minister for Immigration & Multicultural Affairs [2000] FCA 819 (20 June 2000)

Last Updated: 20 June 2000

FEDERAL COURT OF AUSTRALIA

Balli v Minister for Immigration & Multicultural Affairs

[2000] FCA 819

MIGRATION - application for review of a decision of the Refugee Review Tribunal refusing to grant a protection visa - whether Tribunal properly applied the test for refugee status - whether Tribunal properly determined that certain restrictions on Kurds in Turkey do not amount to persecution.

Migration Act 1958 s 36, s 65, s 476(1)(g)

Migration Regulations 1994, subclass 866 of Schedule 2

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 cited

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 cited

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 cited

BULENT BALLI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and WENDY BODDISON, member constituting the REFUGEE REVIEW TRIBUNAL

Q 211 OF 1999

SPENDER J

BRISBANE

20 JUNE 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 211 OF 1999

BETWEEN:	BULENT BALLI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT WENDY BODDISON member constituting the REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	20 JUNE 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of and incidental to the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 211 OF 1999

BETWEEN:	BULENT BALLI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT WENDY BODDISON member constituting the REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	SPENDER J
DATE:	20 JUNE 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application for an order of review under Part 8 of the Migration Act 1958 (the Act) by Bulent Balli from a decision of the Refugee Review Tribunal (the Tribunal) given in Melbourne on 2 July 1999, whereby the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) not to grant a protection visa to the applicant.

2 The applicants to the Tribunal, Bulent Balli and his wife Altin Akbal, are citizens of Turkey. They arrived in Australia on 6 November 1997. On 5 May 1998 they lodged combined applications for a protection visa with the Department of Immigration and Multicultural Affairs under the Act. On 26 May 1998, a delegate of the Minister refused to grant protection visas. On 29 June 1998, the applicants sought review of that decision, which the Tribunal affirmed on 2 July 1999.

3 At the hearing before the Tribunal on 18 March 1999, Mr Balli indicated that he and his wife had separated, that she had left Australia and returned to Germany, and that she did not intend to return to Australia. The Tribunal noted that Mr Balli's wife appeared to have last left Australia on 25 January 1999, and to have been outside Australia since then. Having regard to the requirements of s 36(2) of the Act, the Tribunal noted that the wife could not be granted a protection visa. This appeal is thus not concerned with the position of Akbal Altin.

4 The basis of the challenge to the Tribunal's decision made on behalf of Mr Balli in this Court was that the Tribunal did not properly appreciate the test for refugee status, having true regard to the material before it. Mr Balli is an Alevi of Kurdish ethnicity.

5 Section 36 of the Act provides for a class of visas known as "protection visas". By s 36 (2), a criterion for the grant of a protection visa is that the applicant is a non-citizen, in Australia, to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (the Convention).

6 By s 65 of the Act, the Minister is to grant a visa if satisfied of matters that are prescribed criteria for the granting of the class of visa sought. In the present case, the grant of a protection visa as provided for in subclass 866 of Schedule 2 of the Migration Regulations 1994 requires satisfaction that at the time of the decision, the applicant is a person to whom Australia has protection obligations under the Convention.

7 Article 1A(2) of the Convention defines a refugee as any person who:

"owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

8 For present purposes, it is relevant to note that in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 570:

"For the purposes of the Convention, a political opinion need not be an opinion that is actually held by the refugee. It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor. In Chan [v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 416] Gaudron J said:

`persecution may as equally be constituted by the infliction of harm on the basis of perceived political belief as of actual belief.'

In the same case McHugh J said [at 433] that:

It is irrelevant that the appellant may not have held the opinions attributed to him. What matters is that the authorities identified [Mr Chan] with those opinions and, in consequence, restricted his liberty for a long and indeterminate period."

9 Further, in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 233, Brennan CJ said:

"The feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (race, religion, nationality, membership of a particular social group or political opinion) mentioned in Art 1A(2). The persecution must be `for reasons of' one of those categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms."

10 McHugh J said, at 258:

"Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion, or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee."

11 In this case, the Tribunal correctly identified the principles to be applied in determining whether the applicant was a refugee within the meaning of ss 5(1) and 36(2) of the Act, applying Article 1A of the Convention. The contention by the applicant before the Tribunal relied on his "ethnicity-race" and his religion, he being an Alevi of Kurdish ethnicity.

12 The Tribunal, so far as the religion of the applicant was concerned, said:

"The applicant in his initial application noted `not applicable' to the question about his religion. Later he claimed to be Alevi but a branch of Alevism that stems from Zorat. He said it was more a way of life than a religion. The applicant has not been persecuted in the past for his religion and the Tribunal finds there is no real chance that he will be persecuted in the future."

13 Concerning the applicant's claim of a well-founded fear of persecution because he was a Kurd, the Tribunal said:

"The applicant claims to have been involved in pro-Kurdish demonstrations in Germany. However he was not a member of any Kurdish organisation. The Tribunal accepts that he may have been involved in demonstrations but it was as a low level participant in peaceful demonstrations and this involvement would not have resulted in him having a profile with the Turkish authorities."

14 The Tribunal expressly rejected the assertion that: "Kurdish people are at risk for merely being Kurdish", and later stated:

"The Tribunal does not accept the applicant is at risk for being Kurdish. The country information does not support this view and the Tribunal has found he has not been persecuted in the past."

15 The contention on behalf of the applicant is that the country information before the Tribunal would, on a proper appreciation of who is a refugee, have led the Tribunal to conclude that the applicant as a Kurd was subject to persecution for a Convention reason.

16 The Tribunal referred to the position of Kurds in Turkey as expressed in a 1999 US Department of State country report (the country information). Since the applicant depends on the assertion that the Tribunal misapplied this information in determining what may amount to persecution for the purposes of the definition of "refugee" in the Convention, it is necessary to set the information out in full:

"The Constitution does not recognize the Kurds as a national, racial or ethnic minority. There are no legal barriers to ethnic Kurds' participation in political and economic affairs, but Kurds who publicly or politically assert their Kurdish ethnic identity risk harassment or prosecution. Many Members of Parliament and senior officials and professionals are ethnic Kurds. Kurds who are long-term residents in industrialized cities in western Turkey have been for the most part assimilated into the political, economic, and social life of the nation, and much intermarriage has occurred over many generations. Kurds who currently are migrating westward (including those displaced by the conflict in the southeast) bring with them their culture and village identity, but often little education and few skills. The 1991 repeal of the law prohibiting publications or communications in Kurdish legalized private spoken and printed communications in Kurdish. The use of minority languages, including Kurdish, in television and radio broadcasts by political parties and in schools in restricted by a plethora of laws and even articles of the Constitution; these restrictions are invoked arbitrarily. Kurdish is widely spoken on the streets, especially in the largely Kurdish southeast, and Kurdish music recordings reportedly were widely available there. Soz-TV in Diyarbakir reportedly played some Kurdish music as well. Materials dealing with Kurdish history, culture, and ethnic identify continue to be subject to confiscation and prosecution under the "indivisible unity of the state" provisions of the Anti-Terror Law."

17 It was submitted on behalf of the applicant that the country information contained a number of propositions:

§ "Kurds who publicly or politically assert their Kurdish ethnic identity risk harassment or persecution;

§ The use of minority languages, including Kurdish, in television and radio broadcasts by political parties and in schools is restricted by a plethora of laws and even articles of the Constitution; these restrictions are invoked arbitrarily;

§ Material dealing with Kurdish history etc continue to be subject to confiscation and prosecution."

18 The contention on the applicant's behalf is that the Tribunal's statement that the country information supports the view that "...Kurds who do not assert their cultural identity are not at risk of persecution for merely being Kurdish" is a gross distortion of what may amount to "persecution" for the purposes of the definition of "refugee" in the Convention. Thus, it was said that: an Aboriginal who was exposed to sanction for espousing his special relationship with the land, performing traditional dance or representing in graphic form the Dreamtime; a person of Chinese origin who was exposed to sanction for participating in a lantern festival, otherwise acknowledging Chinese New Year or taking part in a ceremonial dragon parade; a person of Irish origin who was subject to sanction for wearing green on St Patrick's Day; or a person of Scots origin who was subject to sanction for wearing a kilt on St Andrew's Day, would suffer "persecution" for a "Convention reason".

19 It was submitted on behalf of the applicant that the country information established that the regime in Turkey concerning Kurds was one which denied, on pain of sanction, the ability freely to celebrate racial or ethnic origin; that the Tribunal failed to appreciate that that circumstance can give rise to a well-founded fear of persecution; and that, as a consequence, the Tribunal's decision should be set aside and the matter remitted for rehearing.

20 These submissions, in my view, impermissibly focus on part only of the view of the Tribunal concerning the position of Kurds in Turkey. What the Tribunal said concerning the country information was as follows:

"This information supports the view that Kurds who do not assert their cultural identity are not at risk of persecution for merely being Kurdish. In fact the information suggests that even Kurds who assert their cultural identity in a non-violent ways [sic] such as carrying banners are not at risk of persecution. The country information does not support the view that Kurds are persecuted merely for being Kurdish."

21 Sir Anthony Mason observed in Chan, at 388, that:

"The Convention and the Protocol do not define the words `being persecuted' in Art. 1A(2). The delegate was no doubt right in thinking that some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution. ...Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason."

22 So, also, McHugh J at 429 where His Honour said:

"The term `persecuted' is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes `being persecuted'. The notion of persecution involves selective harassment. ... As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is `being persecuted' for the purposes of the Convention."

23 I take the reference in the country information here to "Kurds who publicly or politically assert their Kurdish ethnic identity" as being persons who "risk harassment or prosecution" as being a reference to those who assert a separatist Kurdish entity, separate from Turkey. So much, I think, comes from the context of the passage of that country information set out above. In my opinion, neither that fact, nor the fact that the use of minority languages, including Kurdish, is restricted, nor the fact that there are restrictions on the use of, inter alia, Kurdish in media broadcasts by political parties or in schools, nor the fact that material dealing with Kurdish history etcetera continues to be liable for confiscation and persecution, either alone or together, requires the conclusion that every Kurd is entitled to refugee status.

24 In order to understand the submission on behalf of the appellant, I put to Mr Logan SC, his counsel:

"...your proposition is, putting it baldly and directly, a Kurd [from] Turkey is entitled to Convention protection?",

to which Mr Logan said:

"That's right".

25 Later, I said to him:

"...your submission ... really is a very wide ranging and sweeping claim that a person who is a Kurd from Turkey has a fear of persecution which is well founded?"

to which Mr Logan added:

"Because of the nature of the regime in place, for reasons which are undoubtedly thought good in Turkey."

26 The Tribunal expressly referred to the observation of Mason CJ in Chan (at 388) that persecution requires "...some serious punishment or penalty or some significant detrimental disadvantage ...". The Tribunal, further, was clearly of the view that the particular restrictions referred to in the United States country information were not such as to constitute persecution. In my respectful opinion, that view was open to it.

27 It was further asserted that the decision of the Tribunal was based on a fact which did not exist. A psychiatrist, Dr Goldstein, had treated the applicant concerning an incident at Izmir in 1990 when clearing Immigration. The report stated: "A young, 20-year-old man was threatened with being shot dead and tortured."

28 Of this report, the Tribunal said that it "indicates that he fears torture but does not detail what has occurred to make him fear torture."

29 The Tribunal did not accept the applicant's evidence as to the total circumstances of his experiences in 1990. The Tribunal said it placed no weight on Dr Goldstein's report: "because it neither confirms nor contradicts [the applicant's] claims."

30 I find no error in the Tribunal's conclusion that the report: "... indicates that [the applicant] fears torture, but does not detail what has occurred to make him fear torture."

31 The critical finding which the Tribunal made in determining whether there was a real chance of persecution was not that the events claimed by the applicant to have occurred in 1990 did not occur, but rather that even on his version, he was released, suffered no further difficulties in Turkey in the ensuing five weeks, and was not contacted in Germany during the next seven years. The ground based on s 476(1)(g) of the Act is not made out.

32 For the above reasons, the application is dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 20 June 2000

Counsel for the Applicant:	Mr J. Logan, SC
Solicitor for the Applicant:	Rouyanian & Company
Counsel for the Respondent:	Mr S. Horneman-Wren
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 March 2000
Date of Judgment:	20 June 2000