NAQX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 919 (25 August 2003)

Last Updated: 18 September 2003

FEDERAL COURT OF AUSTRALIA

NAQX v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 919

NAQX & NAQY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 628 of 2003

SACKVILLE J

SYDNEY

25 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 628 OF 2003

BETWEEN:	NAQX FIRST APPLICANT NAQY SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	25 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants 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	N 628 OF 2003

BETWEEN:	NAQX FIRST APPLICANT NAQY SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	25 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ("RRT") handed down on 1 May 2003. The RRT affirmed a decision of the respondent ("the Minister") refusing to grant the applicants protection visas.

2 The applicants have filed without legal representation, an application in this Court. When the matter was called today there was no appearance on behalf of the applicants. Someone purporting to act on their behalf had, however, contacted the Court and the Minister's representatives earlier today, claiming that there were difficulties with transportation, and for that reason they were unlikely to appear today.

3 The application does not identify any ground capable of establishing jurisdictional error on the part of the RRT. The complaint appears to be essentially that the applicants disagree with the factual findings of the RRT. Mr Reilly, who appears on behalf of the Minister, has submitted that the application should be dismissed by reason of the non-appearance of the applicants, pursuant to Federal Court Rules, O 32, r 2(1)(c). He submits, however, that it would be appropriate for me to indicate a view of the merits of the application in case a subsequent application is made to set aside the orders that will be made today.

4 The applicants are husband and wife. They are citizens of Turkey and, until their arrival in Australia on 17 May 2001 were residents of the city of Adana in Turkey. On 20 June 2001, they lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 25 June 2001, the delegate refused to grant the protection visas and on 20 July 2001, the applicants applied for review of that decision by the RRT.

5 As already noted, the RRT did not hand down its decision until 1 May 2003. However, part of the reason for the delay was that the hearing, which was ultimately held on 24 March 2003, was postponed at the request of the applicants. The RRT also provided an opportunity for an agent to file written submissions on behalf of the applicants after the hearing had concluded.

6 The male applicant gave evidence before the RRT, but his wife was content for him to give oral evidence on her behalf. The RRT, however, considered the claims of both applicants. It took into account evidence given on their behalf by other witnesses at the hearing and written statements from persons who have known the applicants in Australia.

7 The applicants claimed to fear persecution in Turkey by reason of their religion. In particular, they claimed to have left Turkey because of a fear of religious persecution arising from their conversion from Islam to the Christian Orthodox religion. The male applicant claimed that his friends and neighbours hated him because of his conversion to the Christian faith.

8 The specific claims made by the applicants included the following:

* The male applicant had lost his job because of his wish to convert to Christianity. Thereafter he had opened a series of businesses, but few customers would buy from his shops because they knew of his wish to convert.

* A brick was thrown into the applicants' living room at their house in Adana while they were having Christmas Day lunch with their family. As there were no witnesses, the police could not help them.

* The male applicant had been threatened by members of the fundamentalist group "Hezbollah" because he had gone to church. From 1993, he and his wife had continuously been threatened with death by Hezbollah.

* Each of the applicants had been baptised as Christians in Australia on 16 March 2003, shortly before the RRT hearing. By reason of this conversion, they feared persecution from fundamentalists in Turkey, should they be forced to return to that country.

* Local Christians had given evidence that they regarded the applicants as sincere converts to Christianity.

9 The RRT gave detailed reasons for rejecting the applicants' claims. The RRT concluded that it was not satisfied that the applicants wished to convert to Christianity while in Turkey, nor that they were perceived to want to do so by Hezbollah or other Muslims in Adana. Accordingly, the RRT was satisfied that, at the time the applicants left Turkey in 2001, they did not have a well-founded fear of Convention related persecution.

10 The RRT gave a number of reasons for making this finding of fact. The reasons included the following:

* The male applicant had visited a church in Turkey on only four occasions during a period of some thirty years. The female applicant had done so on only one occasion in her life, the purpose of which was to collect a letter from a priest to bring to Australia in support of her claim to be a Christian. These facts, according to the RRT, were not consistent with a genuine wish to convert to Christianity.

* The applicants had a genuine opportunity to attend church services and be baptised as Christians during a short period when they stayed in Istanbul in 1997 or 1998. They had not done so and no convincing explanation had been provided for their failure to attend church during that period.

* The male applicant had given what the RRT considered to be inconsistent evidence concerning the threats he claimed had been made against him by Hezbollah. His vagueness on this fundamental point had cast doubt on the plausibility of his claim to have been threatened at all.

* It was highly implausible, given the applicants' negligible contact with the Christian church in Adana and their claim otherwise only to have prayed at home that neighbours might have perceived them to be converts to Christianity. None of the witnesses called on their behalf had any first hand knowledge of religiously motivated harassment of them by neighbours or anybody else.

* The male applicant had given inconsistent evidence about his efforts to obtain protection from the Adana police for what he said had been harassment. That evidence was vague and internally contradictory. The RRT was not satisfied that he had sought police protection at all.

* The applicants had made no attempt by moving house to avoid the harassment to which they claimed they were subject, until their journey to Australia. Moreover, the female applicant had made no inquiries about seeking asylum in Germany during her visit to that country in late 2000 in order to see her brother and daughter. Rather, she chose to return to Adana before leaving for Australia with her husband (where they also have family).

* The general circumstances of the family, according to the RRT, were not consistent with their contention that they had been the targets of continual harassment and discrimination. They were a fairly affluent and privileged family in Turkey. Two of their three sons were university graduates and the third was a university student.

* The male applicant's evidence was not given in a clear or cogent manner and the RRT considered his evidence to be generally unreliable.

11 The RRT accepted that the applicants had recently been baptised as Christians in Australia and that they were perceived by the people who volunteered to give evidence on their behalf to have genuinely converted to Christianity. However, the RRT pointed out that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, the decision-maker must disregard any conduct engaged in by that person unless satisfied that he or she engaged in the conduct otherwise than for the purpose of strengthening a claim to be a refugee: Migration Act 1958 (Cth), s 91R(3). The RRT was not satisfied that the applicants had attended church and been baptised as Christians in Australia otherwise than for the purpose of strengthening their claims to be refugees. In coming to this conclusion, the RRT took into account the male applicant's lack of credibility with regard to his experiences before he left Turkey. It also regarded as relevant the fact that the applicants had been baptised shortly before the Tribunal hearing, notwithstanding that they had been in Australia since 2001.

12 Finally, the RRT said that even if it was wrong in its factual conclusions and that the applicants had genuinely held religious beliefs, the independent country information relating to Turkey did not suggest that there had been any incidents of serious harm against Christian converts in Adana.

13 The RRT was not satisfied that the applicants would face harm amounting to persecution because of their conversion to Christianity if they returned to Turkey. Accordingly, it was not satisfied that the applicants were persons to whom Australia had protection obligations under the Convention.

14 In my view, it is appropriate to make the orders sought by the Minister. No satisfactory excuse has been provided by the applicants for their non-attendance today. They have had ample notice of the hearing. As these reasons have already indicated, the applicants have been unable in their application filed in this Court, to point to anything that might constitute jurisdictional error on the part of the RRT. My own reading of the RRT's reasons indicates that it gave careful consideration to the applicants' claims and also provided them with a full opportunity to put their case forward. To the extent that the applicants disagree with the RRT's findings, their disagreement concerns the merits of the RRT's decision. This does not provide a basis for judicial review.

15 If the applicants choose to make an application to set aside the orders made today, the outcome of that application will, of course, be a matter for the Judge determining it. However, it might be expected that, for any such application to succeed, the applicants would need to identify a plausible basis for establishing jurisdictional error on the part of the RRT.

16 It follows that the application must be dismissed. The applicants must pay the Minister's costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 25 August 2003

Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 August 2003
Date of Judgment:	25 August 2003