Dertli v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal ("RRT") decision refusing refugee status - whether the RRT failed to comply with the provisions of s 430 of the Migration Act 1958 (Cth) by not setting out its findings on material questions of fact - whether decision involved an error of law involving an incorrect interpretation of the meaning of the word "persecution" - whether the RRT incorrectly applied the law to the facts as found by it

Migration Act 1958 (Cth), ss 430, 476(1)(a), 476(1)(e), 476(2)

Sean Investments Pty Ltd v Mackellar (1981) 8 ALR 363, cited

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, cited

Kirushanthan Paramananthan v Minister for Immigration and Multicultural Affairs (unreported, Full Court of Federal Court, 21 December 1998), cited

DILSAH DERTLI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 879 of 1998

O'CONNOR J

SYDNEY

26 FEBRUARY 1999

THE COURT ORDERS THAT:

1.   The decision of the Refugee Review Tribunal dated 31 July 1998 be set aside and the matter remitted back to the Refugee Review Tribunal for reconsideration according to law.

2.   The respondent pay the applicant's costs of these proceedings.

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

REASONS FOR JUDGMENT

1 This is an application for the review of a decision of a member of the Refugee Review Tribunal ("the Tribunal") dated 31 July 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

2 The grounds of the application amended, by consent, at the hearing are:

3 1. That the Tribunal made an error of law, in that it incorrectly interpreted the meaning of "persecution" under the Refugees Convention, s 36 of the Migration Act 1958 (Cth) ("the Act") and Reg 866 of the Migration Regulations (Cth) ("the Regulations"), or alternatively incorrectly applied the law to the founds as found by it. The applicant claims the Tribunal failed to properly apply the meaning of the term "persecution" to the events which it found had occurred to the applicant and her family.

4 2. The Tribunal failed to comply with the procedures that were required to be observed in connection with the making of the decision, in that it failed to set out its findings on material questions of fact. (These were particularised and will be dealt with later in these reasons or judgment)

LEGISLATIVE CONTEXT

5 The relevant provisions of the Act in respect of this application are as follows:

"Application for review

430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based.

(2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

(3) Where the Tribunal has prepared the written statement, the Tribunal must:

(a) return to the Secretary any document that the Secretary has provided in relation to the review; and

(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power."

6 A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, she is a person who:

"owing to 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."

7 The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law.

FACTUAL BACKGROUND

8 The applicant is a citizen of Turkey who arrived in Australia on 15 May 1996.

9 The applicant is an illiterate Kurdish Alevi woman originally from the village Guzeldere in the mountains of Turkey. At age 18 she married a legal officer employed with the court and has five children. The family later moved to Ankara. The applicant said her children were intelligent and often got top marks at school. As a result others envied and resented their success, particularly because of the children's Kurdish background and the applicant says she and her family were harassed and assaulted by their neighbours.

10 The applicant's children became interested in politics and were often involved in political protests. In about 1978 the applicant's two daughters were arrested and detained by the police for 26 days. They were later released, but thereafter the police would often attend the applicant's house asking after the girls. At the end of 1979 the applicant's family moved to another part of Ankara.

11 In 1990 the applicant's son Turgay left Turkey to come to Australia. In May 1996 the applicant left Turkey to join him.

12 After her arrival, on 19 November, 1996, the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. The delegate's decision refusing the application was made on 29 May 1997. The applicant applied for a review of that decision by the Tribunal on 4 June 1997. The application for review was rejected by the Tribunal and his application for protection visa refused on 31 July 1998.

TRIBUNAL HEARING

13 The applicant was legally represented at this hearing. Her solicitor submitted that because of her relationship to her children, several of whom were serious political suspects, she has for many years been the focus of police attention. In addition to the serious emotional suffering she has experienced because of her children's persecution, she herself has been abused, harassed, roughly handled, accused and badly treated by the police on many occasions over a period of about eighteen years. The applicant maintains that she is considered a communist by the police and that they will continue to hound her if she returns to Turkey.

14 She confirmed that she feared returning to Turkey because the police often raided her home, bashed and kicked her and demanded she bring her children to them, because they are left-wing revolutionaries. The last time this happened was when her husband, who died in 1981, was still alive. The applicant claimed the police came to her home in Ankara looking for pamphlets or other material to link her daughter Perihan, who had gone into hiding with her husband, with communist activities. The police asked the applicant to sign a statement and bashed her. The applicant also described other incidents including another incident before her husband's death when Perihan was held in detention for about one month, when she had a three-month old son, and that she escaped from that custody. The applicant also spoke of the incident in 1980 involving her son Turgay.

15 For the last twelve years or so the applicant has lived in Izmir with her oldest son, Turgut. Asked whether there were any incidents in Izmir the applicant said she was frightened to visit her son's home in Izmir because he was suspected of supporting the PKK and they would arrest her. The applicant stated she always felt she was under the control of the police and that she could not visit her children or neighbours. However the Tribunal noted that in the twelve years she lived in Izmir there were no incidents in which she or her children had been detained by the police locally, although she claimed the harassment continued.

16 The Tribunal asked the applicant whether she had any trouble obtaining a passport. The applicant claimed her son and son-in-law organised the passport and paid a bribe to the police. She claimed that she would not have been granted a passport because the police have come to her home so many times. This information had not been provided in her written statement in support of her application nor, apparently, did she tell her legal adviser about the payment of the bribe.

17 In a final statement to the Tribunal the applicant said the reasons for her mistreatment in the past and for her fear of mistreatment in the future were connected to her being Kurdish and Alevi, to her holding a political view and because she was the mother of children involved in, and suspected of, political activities.

TRIBUNAL'S DECISION

18 The Tribunal made the following findings.

* The Tribunal accepted independent evidence that serious human rights problems continue to exist in Turkey, that extrajudicial killings and disappearances continue, that torture remains widespread and that police and security forces operate within a climate of relative impunity. The Tribunal also accepted that there is widespread discrimination against the Kurdish minority in Turkey of which the applicant is one, and that treatment of Kurds is worst in the southeast. However, the Tribunal did not accept that all Kurds face persecution because of their ethnicity, nor that the discrimination against the group as a whole amounts to persecution. The Tribunal found that many Kurds survive "reasonably well" in Turkey and hold senior positions in the government, although this usually results from a willingness to "assimilate" into the Turkish community. The Tribunal found that the independent evidence leads one to the conclusion that the serious mistreatment by the authorities of Kurds, where it arises, is generally because of their actual or imputed political opinions, especially in regard to separatism, rather than because of their ethnic identity.

* The Tribunal further accepted that the significant Alevi minority in Turkey may claim the government discriminates against its people in a range of ways, although there is no illegal Alevi organisation and no "Government-sanctioned discrimination against them". The Tribunal concluded that the serious mistreatment of Alevis arises because of their actual or imputed political opinion rather than because of their religion.

* The Tribunal found the applicant's claims were generally consistent and were therefore genuine and accepted that the applicant identifies strongly with her Alevi Kurd background, that she was generally supportive of the Alevi Kurdish cause and that several of her children have been politically involved with that cause. The Tribunal also accepted the applicant's claim that on many occasions she and her children were labelled "communists" by the authorities. The Tribunal noted the applicant's age and particular circumstances and was sympathetic to submissions made by her representative to explain inconsistencies in her evidence that she has difficulty recalling the chronology and details of particular incidents. It was accepted that from 1978 until about 1981/1982 the applicant and her children were subjected to abuse, harassment, threats and frequent observation by the police because of their actual or imputed political opinions. The Tribunal also accepted the applicant's evidence in relation to the incidents concerning her daughters and her son Turgay after that time.

* However, the Tribunal considered that the situation faced by the applicant and her children changed significantly after the death of her husband in 1981. While the applicant stated that the pressure, questioning and abuse by the police continued over the period of 1978 to 1996 the Tribunal was satisfied that the nature and severity of the mistreatment suffered by the applicant and her children was substantially different after 1982. When asked about the "last incident" in which the applicant and her children had problems with the police the applicant described a situation which the Tribunal said seemed to have occurred before her husband's death. At a later stage the applicant said the last incident involving the police occurred about "two/three" years ago. The Tribunal did accept, however, the applicant's evidence, supported by a witness, (her son Turgay), that her daughter Perihan was detained by the police in 1990 in relation to incidents occurring about 1980, that the matter went before the court and the charges were dismissed.

* The Tribunal however did not accept the applicant's claim that she would be detained by the police on return home. The Tribunal said that, about 1994, Turgut her son, who remains in Turkey, may have had difficulties in his work situation. The applicant maintained his problems were connected with his being an Alevi Kurd but the Tribunal concluded that even if it were to accept this as motivation for his dismissal from his job, did not accept that any harm done to Turgut or the applicant was so serious as to amount to persecution in the Convention sense.

* While accepting that the applicant's living situation is clearly difficult for her it did not accept that she cannot safely visit her children in Izmir because of attention from the police.

* The Tribunal also found it most unlikely that the police would seek her out in Ankara if she were to visit, or that they would seriously mistreat her. Moreover several of the applicant's children have held stable jobs of a type which suggest they are well-accepted by local authorities. The Tribunal was not satisfied that, on the evidence before it, that the applicant's three children, Turgut, Pervin and Perihan, have been seriously mistreated or persecuted for a Convention reason since 1982 and therefore was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason because of her connection with her children.

19 The Tribunal concluded that:

" ... even if I were to find the applicant had been subjected to treatment amounting to persecution to 1982, I find she has not been subjected to treatment amounting to persecution in the years 1982 to 1996. While she may have continued to feel a sense of pressure from the police, marked by instances of harassment and questioning, I do not accept such treatment amounts to persecution in the Convention sense even when directed at a person such as the applicant."

SUBMISSIONS OF THE PARTIES

20 The applicant challenges the Tribunal decision on two bases:

1.   It failed to comply with the provisions of s 430, by not setting out its findings on material questions of fact, and

2.   It wrongly applied the law, as to the meaning of the word "persecution" to the facts that were found.

21  In relation to the failure to make findings on material matters the applicant referred to the following particulars:

(a)  No unambiguous finding was made as to whether the Tribunal accepted that the applicant's son was taken into custody by police for a week following his sister's escape to New Zealand.

(b)  No findings were made as to the employment difficulties of the applicant's son and whether it was either ethnically or politically motivated.

(c)  No finding was made as to whether the Tribunal accepted that the applicant paid a substantial bribe to secure a passport.

(d)  No findings were made as to the documents which were submitted by the applicant to the Tribunal, (nor was any attempt made to have them translated for consideration by the Tribunal in making its decision).

(e)  No findings were made in relation to the evidence of the applicant stating police accused the whole family of being communists.

22 The respondent argues that the obligation placed on the Tribunal by s 430 is not one which is fulfilled by referring to a list of matters nominated by the applicant as relevant and thus requiring positive findings. This approach, it was submitted, has been disapproved of in a number of decisions made under general administrative law principles citing, particularly, Deane J in Sean Investments Pty Ltd v Mackellar (1981) 8 ALR 363, where he said at 374-5:

"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the

decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account."

23 Therefore, the respondent submits, in relation to (a) the Tribunal stating that it "was a difficult claim to accept" and then assuming its truth for the sake of argument, was an appropriate treatment of the issue, in that the evidence was taken into account even if no positive finding was made.

24 In relation to (b), the respondent submits again that the evidence was "assumed to be true" as a basis for another conclusion and this was also sufficient to comply with s 430.

25 In relation to (c), (the evidence about payment of a bribe to procure a passport), the respondent said that a detailed discussion of the issue had been recorded in the section of the decision headed "claims and evidence" and this was sufficient to infer that an unfavourable conclusion had been reached by the Tribunal on the issue although no final conclusions were stated.

26 Also, in relation to (d), the respondent said the Tribunal had "left it up to the applicant" to have the material translated and had no obligation to do more than that. Further a witness had described the contents of the documents, in general, to the Tribunal and this was sufficient for the Tribunal to have proper regard to them in making the decision.

27 In relation to (e), the respondent says that the Tribunal referred to the incident in which this was alleged to have occurred and made a finding that the applicant was only involved "coincidentally" in that incident. That being so, there was no requirement to make any finding about that particular matter, because it was, apparently, not material.

28 In these reasons for decision, the Tribunal has dealt with the claims of the applicant and the evidence supporting those claims in a variety of ways. The documentary evidence, for example, was the subject of detailed evidence and questioning at the hearing but was not subsequently translated. It was not positively rejected or even dealt with directly in the reasons for decision. It is difficult to know, in reading the decision, whether this evidence was taken into account. The same conclusion could be reached in relation to the evidence of bribery to secure a passport, the labelling of the applicant and her family as communists and their continued harassment after the applicant had left the country.

29 This applicant's case is that she and her family are of interest to the authorities in Turkey, in a negative sense, and that they have been and continue to be harassed and abused because they are politically active Kurds.

30 The matters about which no findings are made are, in my view, crucial to a determination of whether these matters, if believed, amount to persecution and whether the applicant, if she returned, would continue to be subjected to the same treatment. Findings, one way or the other, would be necessary to support the conclusion reached. The Court accepts that there is no need, as the respondent says, to make findings on every conceivable piece of evidence presented in support of an application. However, there is a statutory obligation to make findings on material questions of fact.

31 The decision maker in this case adopted a method of writing reasons which resulted, in these crucial matters, in no findings being made, or conclusions being reached, positive or negative, as to the material being considered, by setting up "hypothetical" conclusions as to the matters in order to support the ultimate conclusion that the applicant is not a refugee.

32 The decision maker raises "difficulties" with some evidence but does not proceed to a conclusion about it. There is, in fact, very little of the applicant's testimony which is said to be "not accepted". The Tribunal made no adverse finding as to credit, describing the applicant's claims as generally consistent and therefore genuine.

33 The result is a set of reasons which are unclear as to the basis of the findings as to persecution and the "real chance" test. It is true, as the respondent submits, that the principles of law in relation to the issue of persecution are correctly stated in the body of the decision. However, there is nothing in the decision to explain why, having accepted a number of incidents as having actually (or in some cases hypothetically) to have occurred, this could lead to the conclusion that there has been no serious mistreatment or persecution for a Convention reason. It is hard to conceive of a more straightforward case of persecution if, as the Tribunal says, all of the claims are accepted.

34 The respondent characterises the applicant's claim of "error of law" as nothing more than an attempt to have merits review by inviting the court to come to a different conclusion to that arrived at by the Tribunal. As Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 596:

"The matter was one for judgment and assessment. It thus involved the classical problem of fact-finding and decision-making. The speculative consideration of what might occur to the respondents, if once again they were returned to China, was one necessitating conclusions of fact on the part of the tribunal and speculation as to the future resting on those conclusions. So long as the tribunal considered the correct legal questions, no lawful basis could be established for the intervention of the Federal Court simply because that court disagreed with the Tribunal's factual conclusions."

35 However, that, in my view, is the problem with these reasons for decision in respect of many crucial material matters. It is not sufficient, given the positive obligations placed upon it by s 430 for the Tribunal to merely discuss or give an account of relevant issues without coming to stated conclusions supported by evidence. Nor is it sufficient to hear documentary material discussed in evidence and not having it translated when it was made available. A conclusion about this material was required.

36 The result is that the obligation of "judgment and assessment", the foundation stone of reasons has either not been undertaken or communicated, by means of the reasons, to the applicant

37 In Kirushanthan Paramananthan v MIMA (an unreported decision of the Full Court of the Federal Court, 21 December 1998), Wilcox J, discussing the obligation to make findings on material questions of fact, relevantly, said at 3:

"Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the Tribunal does make should not to be construed in an over-critical way, ":with an eye keenly attuned to the perception of error": see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. On the other hand it is important that a reader be able to discern what conclusions the Tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the Tribunal must say so and indicate the factual material on which the adverse finding was based."

38 The obligation of the Tribunal under s 430 is not, as Merkel J said at 14 of his judgment in the same matter, one of mere form because:

" ... compliance with s 430 can reveal whether the "real chance" test has been properly applied and non compliance can disguise a flaw in the reasoning process and, therefore, a ground for judicial review: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-367 per Deane J."

39 The failure to comply with the procedural obligations imposed by s 430 is sufficient to allow the appeal in this case. However, the additional failure of the Tribunal in not having materials presented to it and referred to in evidence, sent for translation for accurate consideration of their content also, in my view, amounts to a reviewable error.

40 In Kirushanthan Paramananthan v MIMA (above) when discussing the role of the RRT and its obligation, Merkel J said, at 27 of his judgment:

" ... the RRT is required to determine whether it is "satisfied" that the applicant is a person to whom Australia has protection obligations under the Convention.

Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the RRT may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Afairs (1985) 6 FCR 155 at 170 per Wilcox, J, Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ and Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 547-548 per Wilcox J. Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Branson J, 26 October 1998) at 2 and Saliba v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Sackville J, 5 November 1998) at 16-17. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particularly case, but cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it according to the "merits of the case".

In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, is such that the RRT is required to determine the substantive issues raised by the material and evidence before it. That duty, which was recognised by Brennan J in Bushell, is a fundamental incident of the inquisitorial function of an administrative tribunal such as the RRT."

41 In this case the Tribunal had no interest in a translation of documents presented to it and came to conclusions adverse to the applicant's without reading the documents. This material and all of the evidence of the applicant and her witness was able to be accepted or rejected or given little weight by the Tribunal. It must however be considered and discussed in the reasons for decision and appropriate findings made. Otherwise there could be no confidence in or understanding of why the Tribunal came to the conclusions it did in relation to the ultimate decision as to the real chance of persecution of this applicant.

42 I order that the decision under review be set aside and remitted to the RRT for reconsideration according to law.