Aksahin v Minister for Immigration & Multicultural Affairs

The Grounds of Review 7 The grounds of review as particularised in the amended application were as follows: "1. That the decision of the Tribunal involved an error of law, being the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both. PARTICULARS a) In making the finding that a refusal by the Applicant to serve in the Turkish military would not give rise to a well-founded fear of being persecuted for a Convention reason; the Tribunal held that "The fact that someone objects to serving in the military because of their race or political opinion or because they do not wish to participate in what they see as an unjust or immoral war does not give rise to a claim under the Convention if the requirement to serve in the armed services during such war is a law of general application and the consequences for refusing to serve are the same for all. It is only if an individual faces discriminatory treatment for a Convention reason in relation to his military service or if his refusal to serve results in him being seen as holding unacceptable political views and he is at risk of harm because of this, he may have a claim for refugee status." b) Such finding of the Tribunal failed to recognise that the Turkish law relating to compulsory military service adversely impacted upon and therefor discriminated against Kurds who objected to being at risk of being forced to be part of inhumane campaign against the Kurdish population in SE Turkey. c) Further such finding of the Tribunal failed to recognise that it was sufficient for the Applicant to show that his refusal to serve in the military arose from a genuine conscientious objection based on political or racial reasons in circumstances where the military engaged in systemic human rights abuses against the Kurdish population in SE Turkey which conduct was in breach of international law and involved crimes against humanity and that there was a real chance that the Applicant would suffer persecution as a result of his beliefs. d) To the extent that the Tribunal purported to dispose of the Applicant's fear of persecution arising out of a refusal to undergo military service because of a fear of being required to serve in the Kurdish populated rural areas in SE Turkey; by the Tribunal's finding that "the evidence before the Tribunal indicates that it would be unlikely that Mr Aksahin would be sent into combat against the PKK in the southeast as the number of Kurds is kept to a relatively small portion of the entire force and Kurds who are not believed to support the government are not generally sent to area"; such finding demonstrated that he (sic) Tribunal erred in its interpretation, and its application to the facts as found, of the phrase "well founded fear of persecution. 2. The Tribunal failed to observe the procedures required by s 430 of the Migration Act in that it failed to set out its findings on any material questions of fact; and refer to the evidence or any other material on which its findings of fact were based, in relation to the following matters. PARTICULARS a) The Tribunal failed to make any finding of fact as to whether the Applicant's possible refusal to perform military service would be by reason of a genuine conscientious objection. b) The Tribunal failed to make any finding of fact as to the nature and extent of the penalty or other harm that the Applicant faced a risk of suffering if he refused to perform military service. c) The Tribunal failed to make any finding of fact as to whether or not the law relating to compulsory military service adversely impacted upon and therefor discriminated against Kurds such as the Applicant who objected to being at risk of being forced to be part of systemic human rights abuses against the Kurdish population in SE Turkey. d) Having regard to the evidence before the Tribunal which was essentially accepted by the Tribunal that torture and other serious ill-treatment of persons held in detention in Turkey was widespread: I. The Tribunal failed to make findings of fact as to whether any penalty imposed on the Applicant for refusing to be drafted for military conscription carried a real chance that it would result in torture or other serious ill treatment amounting to persecution. II. The Tribunal failed to make any finding of fact as to whether the Applicant as a Kurd would suffer disproportionately from any official penalty that might be imposed for a refusal to perform military service by reason of torture or other serious ill-treatment that he might suffer as a result of being a Kurd who was in conflict with the authorities by refusing to perform military service." A third ground was abandoned at the hearing.

The Tribunal's Decision 8 The Tribunal, after referring to the provisions of the Refugees Convention, identified Mr Aksahin's claim that he is at risk of persecution if he returns to Turkey because of his involvement in the Peoples Democratic party (HADEP) and because when called up for national service he will object and thereby be seen as supporting the Kurdish Workers Party (PKK). Against this background the main issues in the case as set out by the Tribunal were: 1. Whether Mr Aksahin's fear that he will be persecuted in Turkey for reasons of political opinion is well-founded? 2. Whether Mr Aksahin is a conscientious objector and whether this gives rise to a claim for protection under the Convention? 3. Whether his fear of persecution because of his Kurdish ethnicity is well-founded? 9 The Tribunal began its assessment of the claims and evidence before it by considering the place of Kurds in Turkey. It found that the Turkish State has for many years denied cultural rights to its Kurdish minority insisting that they assimilate into the mainstream culture. Many had done so, but many had not accepted that policy and had sought greater cultural rights. The PKK since the 1980's has engaged in an armed struggle against the central government in South East Turkey with the aim of establishing a separate Kurdish State. The Tribunal found: "Kurds who assert their cultural rights or who involve themselves in political activities aimed at achieving greater rights for Kurds have face (sic) problems ranging from harassment to detention, where torture is frequent. Some have been murdered. Kurds who belong to or are believed to actively support the PKK risk serious harm at the hands of the Turkish authorities. HADEP is a legal political party with a relatively large following. It is seen as being pro-PKK and some members have faced problems ranging from harassment to more serious harm because of their activities on behalf of the party." (pp 3-4) Against this general context, the Tribunal reviewed the claims and the evidence. It referred to the interpreter assisted interview given by Mr Aksahin on 11 May 1999 and his statement in support of his application for a protection visa on 28 May 1999. 10 In a submission from Mr Aksahin's adviser sent to the Tribunal on 19 January 2000, it was said he had not previously given a comprehensive account of his situation because he had been afraid when taken into custody on arrival in Australia, fearing that information he provided would be given to the Turkish government. He said his father and brother were HADEP supporters but that membership of that party was illegal and his father had been repeatedly harassed, interrogated and assaulted by police because of it. Mr Aksahin himself was not a member, although he went to some meetings with his father. His brother, Ismail, was arrested in 1998 and held in custody for two months and tortured while in prison. 11 In 1999, according to Mr Aksahin, his father stood for public office as Muktar candidate in local elections. He helped with the campaign. They were subject to police harassment and intimidation. His father was tortured. Harassment continued even after the elections. The family home was kept under surveillance. Mr Aksahin claimed that he was followed by plain clothes police after the election. He said he knew they were police because they often spoke into radio headsets. His father told him to go to his aunt's home in Pazarcik and hide there for his own safety. While in Pazarcik Mr Aksahin made arrangements to flee Turkey. He claims his father is still being harassed and that his brother, Ismail, left Turkey following his departure. He said his father is now making arrangements for his younger brother, Ali, to leave. 12 Mr Aksahin is liable to military service at age twenty. He said he had not done the service and was afraid that he would be accused of desertion if called for military service while outside the country. He said he was afraid that if conscripted he would be sent to the east to fight the PKK. He said he would not want to fight against his own people and feared that he would be executed for desertion for refusing to serve in the army. 13 Having set out the general claims advanced by Mr Akashin, the Tribunal reviewed the questions which it had put to him and the answers it had received. When asked about his claims in relation to military service, Mr Akashin told the Tribunal that people had to do military service when they turned twenty. He feared that he would be sent to the south east of Turkey and would have to fight other Kurdish people. He did not know whether his older brother had been called to do military service. 14 On 27 January 2000, a further written submission was sent to the Tribunal by Mr Aksahin's adviser. In it Mr Aksahin reiterated he wasn't sure whether his passport was a legal document. Problems with his evidence before the Tribunal were said to be due to the fact that he was confused and stressed as a result of the trauma he had experienced in Turkey and his detention after arriving in Australia. He had been taken into custody a few times in Turkey, the most recent being before the elections in 1999 at which time he said he was tortured with electric shocks. Mr Aksahin's adviser also submitted he was at risk of serious harm because if he were called up while outside the country he would be suspected of supporting or fighting with the PKK because he objected to serving in the Turkish military as he did not want to serve in the south east. 15 The Tribunal wrote to Mr Aksahin on 14 February 2000 advising him of information it had indicating that Kurds did not face systematic discrimination in the Turkish military and were not necessarily sent to the south east and would not be sent if they were not believed to be loyal to the government. Mr Aksahin's adviser responded on 22 February arguing that information contained in the country report did not support the view that those who evade military service are unlikely to face serious harm. The report made no mention of the possibility that evasion of military service would result in the individual concerned being treated as pro-PKK. The adviser submitted that Kurds who do not join the Village Guard are treated in Turkey's south east as pro-PKK. 16 Having reviewed the claims and the evidence put before it, the Tribunal set out its findings and reasons for decision dealing first with the subject of Mr Aksahin's claim to political involvement. It did not accept that he or other members of his immediate family were active HADEP members and supporters nor that they were detained and tortured as a result. There had been no mention of these matters when Mr Aksahin was interviewed upon arrival, nor in his written or oral submissions to the Department. His claim that he did not provide that information because he didn't understand the definition of a refugee and because of fear that Turkish authorities would learn about his application and cause further problems for him and his family was not accepted. It was not necessary to have a knowledge of the Refugee Convention in order to answer simple questions about the reasons for departing from Turkey. Given that Mr Aksahin claimed he was seeking protection in Australia, believed Australia had a good human rights record and was aware, at least after he spoke to his first adviser, that anything said would be kept in confidence, the Tribunal did not believe that he would have failed to mention his own and his father's political involvement and the alleged problems which it caused if those contentions were true. Nor did it consider that the confusion and contradictions in his evidence about his political activity could be put down to nervousness or stress. The Tribunal did not accept that Mr Aksahin or his family had any involvement in HADEP prior to his departure from Turkey or that he had a well-founded fear of being persecuted for that reason were he to return home. 17 The Tribunal also rejected the contention that Mr Aksahin would be at risk of persecution because of his application for refugee status in Australia. The application to the Tribunal, not being public, there was no reason to suppose that Turkish authorities would be aware of the fact. The Tribunal referred to statistics indicating that over the last decade of 35,326 people who returned to Turkey at least 6,275 were failed asylum seekers. The UK Country Assessment indicated seventy reports of people who had problems on return to Turkey, a number of whom were apparently known PKK supporters or sympathisers. The Tribunal said (at p 13): "In Mr Aksahin's case I do not believe that he has had any past involvement in pro-Kurdish or other political activities and find that there is no more than a remote and insubstantial chance that he will be suspected of applying for refugee status while outside the country and therefore be viewed as a (sic) having some involvement in anti-government or pro-PKK activities and persecuted." 18 The Tribunal then turned to the subject of military service. It began by expressing scepticism of Mr Aksahin's claimed fear that he would be persecuted because he would refuse to do compulsory military service on the grounds that he would be sent to fight the PKK and objected to fighting Kurds. He had made no mention of these fears until after the refusal of his protection visa application by the delegate. He would not be liable to undertake military service until age twenty, which would be on 1 August 2000. The Tribunal went on to observe that evidence before it indicated that it was unlikely that Mr Aksahin would be sent into combat against the PKK in the south east as the number of Kurds was kept to a relatively small proportion of the entire force and Kurds who were not believed to support the government were not generally sent to that area. This was based on a UK Country Assessment. Nevertheless the Tribunal accepted that Mr Aksahin might not want to serve in the Turkish military when called and it might be that he and other Kurds believed they faced a high risk of being sent to the south east even if that were not the case. This did not, however, mean he had a well-founded fear of being persecuted for a Convention reason. 19 The Tribunal found there is no provision for conscientious objection to military service under Turkish law. Penalties for avoiding military service range from fines to gaol terms of up to three years. The courts in Turkey generally impose minimum penalties, usually fines. The Tribunal referred to a specific case involving four objectors who took a public stand against conscription in 1994. The leader received a six month sentence and two others sentences of two and four months. They were also fined small amounts. The fourth defendant was taken by military police to the recruitment office where he was ordered to present himself to barracks two days later. Again refusing to serve, he faced renewed prosecution. He continued to resist and in the event was sentenced to six months gaol. The Tribunal saw the conscription law as one of general application and not involving discriminatory treatment for a Convention reason. It did not believe Mr Aksahin would face serious harm for any such reason. Military postings are determined randomly by computer, although only ten per cent of conscripts in the south east are to be Kurds and the majority of those born in the east of the country are sent to serve in the west. The UK Turkey Country Assessment was cited by the Tribunal as reporting no systematic discrimination against Kurdish conscripts during military service. Moreover, according to the DFAT Country Information Report No 323/98 dated 7 August 1998, military courts do not distinguish between Turkish citizens of Turkish origin nor Kurdish origin. There are no discriminatory policies in civil and military courts based on ethnicity. In these circumstances the Tribunal did not consider that Mr Aksahin would face significantly harsher treatment than other conscripts because he is a Kurd. 20 The Tribunal then considered Mr Aksahin's Kurdish ethnicity. It expressed scepticism of his claim of being assaulted by police three years prior to leaving Turkey and of his brother's detention in 1998. He was unable to provide more than a few details of the circumstances of these incidents. Even if both incidents occurred, they did not suggest that he would face a real chance of persecution because of ethnicity if he were to return to Turkey now. It was far from clear on his claims that he or his brother were targeted because of their ethnicity. Even if there were a racist element involved, these were at most isolated incidents in the life of people who had otherwise suffered no serious problems for any of the reasons in the Convention. There was no reason to suppose more than a remote chance that they would occur again. 21 The Tribunal referred to a claim by Mr Aksahin that his passport was obtained illegally. It rejected that contention and the contention that he had left Turkey illegally. It did not believe that he was of interest to the Turkish authorities for any Convention reason. Turkish citizens generally have the right to obtain a passport and travel abroad. There is no reason why he would not have been able to obtain a legal passport through normal channels. The claim that the passport was false or illegally obtained was at odds with information in his protection visa application which was prepared with the assistance of a registered migration agent and stated that he left Turkey legally with his passport. The Tribunal believed this to be the truth and that Mr Aksahin had sought to change his evidence to bolster his claim for refugee status.

Discriminatory Operation of Military Service Requirement 22 The first and primary ground upon which Mr Aksahin challenged the Tribunal's decision was that it wrongly failed to accept that exposure to punishment for refusal to comply with a general requirement to perform military service could be persecution for a Convention reason. If a military service requirement of general application operates in a discriminatory way against people of particular ethnicity or political belief, then punishment for non-compliance, it was said, could amount to persecution for a Convention reason where such non-compliance was related to the person's ethnicity or political belief. It was submitted that where refusal to perform military service is for genuine reasons relating to human rights abuses by the military then, however the country of origin may view the penalty resulting from the refusal, in reality it would result from the decision by the individual not to comply for reasons having a political, religious or racial basis. Accordingly, it was submitted there should not be any difficulty in accepting that the penalty in such a case would be for a Convention reason and that the test of a "well-founded fear of persecution for a Convention reason" would therefore be met. The Tribunal, it was said, should have found that it was sufficient for Mr Aksahin to show that his refusal to serve in the military arose from a genuine conscientious objection based on political or racial reasons given that the military engaged in systematic inhumane conduct against the Kurdish population of south east Turkey and that there was a real chance that he would suffer persecution as a result of his beliefs. The refusal to accept a claim for protection arising out of a conscientious objection to military service failed to recognise that the law relating to compulsory military service adversely impacted upon and therefore discriminated upon Kurds who objected to being involved in the "inhumane campaign against the Kurdish population in south east Turkey". This position was said to be consistent with statements of principle in the High Court that laws of general application have to be considered in context as to whether they impact on a minority group in a discriminatory fashion. 23 In dealing with this ground it is important to bear in mind the actual principle applied by the Tribunal in reaching its conclusion about Mr Aksahin's contentions concerning military service. The Tribunal said (at p 15): "International law recognises that a state has a right to compel its citizens to undertake military service. Enforcement of laws relating to conscription does not, of itself, give rise to a claim for refugee status. The fact that someone objects to serving in the military because of their race or political opinion or because they do not wish to participate in what they see as an unjust or immoral war does not give rise to a claim under the Convention if the requirement to serve in the armed forces during such a war is a law of general application and the consequences for refusing to serve are the same for all. It is only if an individual faces discriminatory treatment for a Convention reason in relation to his military service, or if his refusal to serve results in him being seen as holding unacceptable political views and he is at risk of harm because of this, he may have a claim for refugee status." The Tribunal did not believe that Mr Aksahin faced serious harm for either of the posited reasons. 24 The Minister relied upon the approach to the construction of the term "persecution" by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 where it was said: "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 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. Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object would ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution." Brennan CJ at 233 emphasised the importance of the discriminatory character of the feared persecution. He put it thus: "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….The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee"." 25 More recently in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553, the High Court, in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, reinforced the proposition that ordinarily enforcement of a law of general application does not constitute discrimination (at par [21]). Their Honours said: "To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory. And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention." And importantly, dealing with the concept of persecution, their Honours said at par 25: "As was pointed out in Applicant A not every form of discriminatory or persecutory behaviour is covered by the Convention definition of "refugee". It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution." The Court expressly approved the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted (par 34). The accident that the particular political or ethnic sympathies of a person may cause him or her to disobey a law of general application, does not render the sanction for non-compliance persecution for a Convention reason. 26 This was the approach adopted by Lehane J in Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192. His Honour said, at par 21: "The terms of Art 1A(2) of the Convention make it clear that a refugee is a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The importance of the words "for reasons of", was emphasised by the Full Court in [Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565]." His Honour's approach left open the possibility that a person holding a conscientious objection to military service might "on that account" be singled out for discriminatory treatment. I need not repeat here the comprehensive treatment which his Honour gave to the topic in his judgment. Plainly, the occasions of and means by which discriminatory persecution may be effected are various and may extend to those who fail to comply with requirements for compulsory military service on particular conscientious grounds related to Convention reasons. This is not such a case. The Tribunal's fact findings take it out of that category and it has displayed no error of principle in the approach it has taken.

Failure to Make Material Findings of Fact 27 The application of this ground, alleging a failure to comply with s 430 of the Migration Act 1958 (Cth) to make findings on material questions of fact, and raising the ground of review under s 476(1)(a), is governed by the judgment of the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, delivered since this case was argued. The content of the obligation under s 430 as set out in the judgment of the Full Court may be summarised as follows: 1. Section 430 requires a recording of the decision to which the Tribunal came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based. It does not impose any obligation on the Tribunal to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached (par 44). 2. There is no requirement in s 430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding it made (par 46). 3. The preceding proposition is subject to the requirement under s 430(1)(c) that the Tribunal set out its findings on material questions of fact - materiality being determined objectively. That is to say the Tribunal must make findings on questions of fact that are central to the case raised by the material and evidence before it (pars 47 and 60). 4. The material facts are not only those ultimate facts specified by the statute, such as the existence of a well-founded fear of persecution, they extend to facts which are necessary to complete the logical chain the Tribunal has adopted as the basis for its decision (par 55). A fact is material if the decision in the practical circumstances of the particular case turns on whether that fact exists (par 57). 28 In submissions on this ground it was said that in making its finding that a refusal by Mr Aksahin to serve in the Turkish military would not give rise to a well-founded fear of being persecuted for a Convention reason, the Tribunal relied on evidence that penalties comprised gaol terms of up to three years, fines and being taken direct to military service. However, it is said to have made no specific finding as to the possible risk of the penalty applicable to or the possible harm to be suffered by Mr Aksahin. The Tribunal, it was said, did not consider the obvious issue, or make any finding, as to whether a Kurd who attempted to refuse to perform military service and who was taken direct to the military would be at a high risk of torture and other human rights abuses, although on the face of it there was no legal penalty or only a fine imposed. The Minister, however, pointed out that the Tribunal specifically referred to the penalties provided by Turkish law for avoiding military service and specific penalties incurred by conscientious objectors. It found as a matter of fact that it did not consider Mr Aksahin would face significantly harsher treatment than other conscripts because he was a Kurd and was not satisfied that if he refused to serve in the army that would mean that he was seen as opposing the state or supporting the PKK. In any event, the Tribunal did not accept that torture and other serious ill-treatment of persons held in detention in Turkey was widespread. It found that Kurds who supported a separate homelander who were involved in political parties such as HADEP or were believed to support the PKK risked problems ranging from harassment to detention and torture. 29 I accept the respondent's submissions in this case that the Tribunal has made all necessary findings to support the conclusion which it reached in relation to non-compliance with the requirements for military service, the risk of torture was not related to conscientious objection and the cases to which it referred did not involve any suggestion of such treatment. In my opinion this ground is not made out.

Conclusion 30 For the preceding reasons, the application will be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Solicitor for the Respondent: Australian Government Solicitor