Eshetu v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT BACKGROUND The applicant was born on 1 May 1977. He is a citizen of Turkey. He is of Kurdish ethnic background, and a member of the Alevi religion. He entered Australia lawfully on 10 June 1995, and on 16 August 1995 he applied for a protection visa under the Migration Act 1958 (Cth) ("the Act"). It is a criterion for such a visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 20 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"): s 36 of the Act; Sch 2, cl 866.221 Migration Regulations. Article 1A(2) of the Convention relevantly provides that a person is a refugee if that person "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." There must be a "real chance" of persecution if the applicant were to be returned to Turkey, as the expression "well-founded fear of being persecuted" contemplates both the subjective fear of persecution, and the objective requirement of a sufficient foundation for that fear: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The applicant's claim was considered by a delegate of the respondent. The grounds giving rise to a well-founded fear of persecution were largely, but not exclusively, that he was the target of violence from a gang of Moslem fundamentalists because of his ethnic background and his religious beliefs. It will be necessary to refer to those matters in more detail below. He also asserted that he was due to undertake compulsory military service in Turkey, and that the government policy was to send conscripts of Kurdish ethnicity to fight the Kurdish rebels in south-east Turkey, so he was fearful both of the consequences of serving in the Turkish army in that region and of being shot by officers of the Turkish army because he himself was Kurdish. He did not claim to be a conscientious objector to military service generally, or at that point to serving in that particular area of conflict. The delegate was not satisfied that the concern in relation to military service was 'Convention related'. As to the former concern, the delegate concluded: "the applicant has a real chance of persecution for a Convention reason in his home town of Alaca but that it is reasonable to expect the applicant to relocate to another part of the country where there is not a real chance of persecution. I find that the fear of persecution on return is consequently not well founded in relation to the country as a whole." On 26 February 1996, the application was refused. On the basis of that conclusion, it was appropriate to do so: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437. On 6 March 1996, the applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). The hearing before the Tribunal took a somewhat different course. It concluded that · there is not a real chance that the applicant would face persecution for a Convention reason if he were now to return to Turkey, and · "the violent actions" of the applicant would, in any event, exclude him from the definition of a refugee in accordance with the provisions of Art 1F of the Convention. The Tribunal, on 1 July 1997, therefore affirmed the decision of the respondent by the delegate not to grant the applicant a protection visa. It did not address the 'relocation principle' which, in the light of the delegate's findings, led to the delegate refusing the application. THE TRIBUNAL'S REASONS The Tribunal recorded the detailed claims of the applicant, and the evidence in support of them. It then turned to assess that evidence, and to make its findings. It found that his Kurdish ethnicity was known to a significant number of persons at his secondary school, and in that area, despite his evidence that he concealed those origins at secondary school. He came from a known Kurdish village some twenty-two kilometres away from the school, and openly and frequently returned home, sometimes with other Kurdish youths from nearby villages. His teachers knew of his ethnic origins. Many of his friends at school were Kurds. It also found that, despite that awareness, he was able to have friendly relations with many Sunni Moslems whilst at school and was able to avoid serious harm 'just about right through his period of secondary schooling'. During his schooling, the applicant joined a gang of 'right-wing' youths. The Tribunal accepted that he may have done so to afford himself a greater measure of protection from any prospect of harm from Sunni Moslems. He had not prior to joining the gang been harmed by Sunnis or others, and other Kurds at the school did not join the gang yet were able to complete their education and were not themselves subjected to particular risk of serious harm. It rejected his evidence that he joined the gang out of coercion. Once he joined the gang, the Tribunal noted his participation in a series of serious assaults over a substantial period of time. It noted the absence of "compelling evidence" that his participation was for a well-founded fear for his own safety based upon a Convention reason. It is evident that the Tribunal concluded to the contrary. There were two occasions towards the end of his schooling when the applicant himself was assaulted. He had by this time elected not to participate in the gang's violent activities, and to distance himself from them. As it had concluded that the applicant's Kurdish ethnicity was probably known to other gang members in any event, it did not conclude that those attacks on him, apparently by the gang members, were by reason of his ethnicity or race. It also noted that there was no evidence to indicate that, other than in that part of Turkey outside those areas where there is a state of emergency, there is any institutionalised failure by the state to respond to complaints of attacks upon its Kurdish citizens. In the applicant's case, the two attacks were not reported to the police and so no opportunity for the authorities to respond was generated. After his secondary schooling, the applicant said that he sought to attend university some considerable distance away, but did not pursue that ambition, and then moved to Ankara where he moved houses and changed jobs quite often. The Tribunal found that, if (as he claimed) those events were brought about by gang members or those associated with them, or by his fear of such persons, those events did not occur by reason of his ethnicity or race. It also found, adversely to the applicant, that he was not harassed by those persons as he asserted. It rejected his evidence as to those matters. The Tribunal also concluded, more generally, that although there is considerable evidence that Kurds are disadvantaged in Turkey, especially in cultural activity, and in the south-east region, there is no material to indicate that a person such as the applicant would face adverse consequences amounting to persecution in Turkey on the basis of his ethnicity or race. The Tribunal then addressed the applicant's claims based upon his Alevi faith. The applicant had in fact not encountered harm amounting to persecution based on his religion or his political opinion. It reviewed the evidence, and concluded: "It is palpable that there is a very large number of Alevis in Turkey and that not all, by any means, encounter persecution. The absence of persecution of the applicant for a Convention reason indicates that any prospect of such persecution in the future is remote, and the Tribunal so finds." Finally, the Tribunal addressed the applicant's claim of vulnerability to persecution for a Convention reason based upon his being liable for military service and being required to fight against Kurds. It was his evidence that, as a Kurd, he may be shot by his own officers, or that he may be imprisoned or tortured if he were to refuse to serve in the army. The Tribunal accepted that he is liable to be conscripted, and may be required to serve against Kurds. However, it positively found, contrary to the applicant's evidence, that he is not a conscientious objector either generally or in relation to serving if required in conflict against other Kurds. It also found that the prospect of the applicant encountering serious harm from commanding officers by reason of his race is remote. To that point of its reasons, the Tribunal had reached the view that the applicant was not exposed to a real chance of persecution for a Convention reason were he to be required to return to Turkey. It did not address, in that regard, whether he could in any event reasonably relocate elsewhere within Turkey. It did not need to. The Tribunal then addressed Art 1F of the Convention. That matter had been the subject of the earlier finding by the delegate of the respondent in favour of the applicant. Article 1F provides: "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) [s]he has committed a crime against peace, a war crime, or a crime against humanity, as defined by the international instruments drawn up to make provision in respect of such crimes; (b) [s]he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) [s]he has been guilty of acts contrary to the purposes and principles of the United Nations." I do not need to set out the Tribunal's reasons on those issues at this point. It is sufficient to note that the Tribunal concluded that the participation of the applicant in the violent activities of the gang over a period of time, albeit when he was a youth only of about sixteen years of age, disqualified him from being eligible to take advantage of the provisions of the Convention by reason of Art 1F. It may appear, at first, to be a harsh finding having regard to his age, but it is not necessary for the Court to review that finding on this application. GROUNDS OF REVIEW There were three grounds of review ultimately pursued: (1) The Tribunal failed to act according to "substantial justice and the merits of the case": s 420, and so failed to observe procedures required by the Act to be observed in connection with the making of the decision: s 476(1)(a). The particulars in the application assert that, in assessing the credibility of the applicant and his account of events in Turkey: "i) the tribunal did not give real consideration to the material lodged in support of the applicant by the Victorian Foundation for Victims of Torture, nor the evidence of Mr Corlett; ii) the tribunal did not take sufficient account of the background and language difficulties experienced by the applicant's mother, and her different cultural perspective in relation to dates and details of past events; iii) the tribunal did not take sufficient account of the submission made on behalf of the applicant by the Refugee Advice and Casework Service dated 9 August 1996. This submission addressed many of the tribunal's preliminary concerns, and sought directions about the filing of further information to satisfy the tribunal on certain matters: see for example p 7 of the submission in relation to the applicant's experiences in Ankara, a matter about which the tribunal made specific findings adverse to the applicant; iv) the tribunal failed to give real consideration to the circumstances in which the applicant found himself, the general difficulties with the rule of law in Turkey, and the applicant's race in concluding that the applicant's credibility was adversely affected by his failure to report his assault to the police." although particulars (ii) and (iii) were not the subject of discrete oral submissions. As expressed, they relate to the weight attributed to the Tribunal to certain material before it and in my view do not go beyond a criticism of the Tribunal's reasons on the merits. I am not satisfied that they disclose any reviewable error under s 476 of the Act. It is also said that, despite the fact that the Tribunal had no jurisdiction to address Art 1F, the Tribunal had proceeded to find that the applicant had committed "crimes against humanity" and "serious non-political crimes", and that these views affected its considerations of the overall credibility of the applicant's evidence ". . . in a way which, given the lack of jurisdiction, cannot be said to afford to the applicant substantial justice in a consideration of the merits of his case". (2) The Tribunal had no jurisdiction to determine that the applicant was excluded from the protection of the Convention by reason of Art 1F: s 476(1)(b) and (3) The Tribunal erred (a) in considering the existence or otherwise of the applicant's conscientious objection to military service by having regard only to the applicant's past conduct and did not therefore determine that matter as at the date of the hearing of the application, and (b) in failing to consider whether the applicant had a well-founded fear of persecution by reason of his political opinion, namely his view that the fundamentalist views of the gang of which he had previously been a member were wrong, so that there was an error of law in the Tribunal's approach or its conclusions: s 476(1)(e). SECTION 476(1)(a) It is clear that s 420 imposes upon the Tribunal procedures to be observed in connection with the making of the decision, the departure from which provides a ground of review under s 476(1)(a): Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505. The precise content of the obligation to accord "substantial justice" will necessarily have to be addressed on a case by case basis: Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179. In that case Foster J held that the failure to make a decision on a significant issue necessary for the proper determination of the proceedings would amount to such a failure. If the Tribunal's treatment of the issues is so unreasonable that the decision could not have been made by a reasonable person, the obligation under s 420 has not been met: Eshetu (above), per Davies J at 305-6 and per Burchett J at 317, and Sun Zhan Qui (above) per Wilcox J at 548. In Sun Zhan Qui (above), Wilcox J at 548-549 (with whom Burchett J at 554 agreed on these points) extended that content to encompass conduct by the Tribunal inducing an applicant to the wrong belief that particular information has a limited significance, and to the failure by the Tribunal to take into account significant relevant considerations. On the latter point, Wilcox J referred to the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 as follows: ". . . a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable"." Wilcox J regarded the failure to take into account the applicant's condition of post-traumatic stress disorder in determining whether the applicant's claim to have been present at the events of 4 June 1989 at Tiananmen Square as evidencing a departure from that procedural obligation. The applicant submitted that the Tribunal did not have regard to evidence that he suffered from post traumatic stress disorder ("the disorder") which may have affected his capacity to reliably recount events in Turkey in assessing the applicant's credit worthiness. Thus, it was contended, the Tribunal assessed his credit worthiness in an irrational and unreasonable way. It was also contended that the Tribunal failed to consider whether the disorder was the consequence of the assaults upon him by the gang, and so was itself evidence of persecution, and that this amounted to a failure to act in accordance with s 420. Thirdly, it was contended that it was neither rational nor reasonable for the Tribunal to have had regard to the applicant's failure to report the assaults upon him to the police when there was also evidence that the gang was a vicious one which frequently directed its attacks to Kurds and was still actively pursuing the applicant, and alternatively there had been in that respect a failure to rationally consider probative evidence: Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397. The Tribunal did refer to the evidence of the disorder in its reasons. It accepted that the applicant has suffered from the symptoms outlined in material relating to it, but went on to stress that its task was to determine whether the applicant's fear is well-founded, and whether that fear arises for a Convention reason. It was not satisfied on either point. The relevant material was identified as three reports from two persons described as "counsellor/advocate", The Victoria Foundation for Survivors of Torture Inc ("the VFST"), one being undated and the others dated 5 February 1996 and 15 July 1996, with an enclosed report entitled 'Complementary Therapies Report' of 28 June 1996 from a person described as 'Complementary Therapies Co-ordinator'. Those documents describe the applicant as reporting a range of symptoms which he attributed to the events he reported to the Tribunal in his evidence, and which at one point are described as "directly related to" the trauma and persecution he has reported, and at a later point as being "consistent with an experience of recent trauma". It is of course a difficulty confronting such diagnostic reports that the symptoms and history of events provided must be reliable to provide the foundation for the diagnosis. The Tribunal has concluded that, in significant respects, the history reported by the applicant was inaccurate. It did so upon the whole of the material available to it, and including its opportunity to see and hear the applicant's evidence. It was appropriate for the Tribunal to have regard to the VFST material, including that such material suggested the applicant's symptoms were consistent with his reporting of events in Turkey. Its reasons indicate that it did so. It found facts different from those reported by the applicant. It was entitled to do so. The suggestion that, in addition, those reports somehow might affect the applicant's capacity as a reliable reporter of events so as to be relevant to the assessment of his creditworthiness is two-edged. It is largely upon the basis of the events being reported accurately by him that the asserted persecution, and the reasons for it, would be made out. However, in my view the VFST material did not identify any particular reason why the applicant's reporting of events either to the VFST or to the Tribunal should be treated as unreliable, but explicably so, so that any difference between his version of events and that of others would be explained. On the contrary, that material suggested his symptomatology was consistent with the events he reported. It did not suggest that his recollections were unreliable by reason of the disorder. There may be cases where a failure expressly to have regard to particular material will constitute a failure to observe the procedures required by s 420, but that will not be so necessarily. It is clear that the regime of judicial review under Pt 8 of the Act is intended to operate in lieu of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). For example ss 476(2) and (3) expressly exclude particular grounds of review available under s 5(1)(a), and s 5(2)(a), (b), (d) and (g) of the ADJR Act. It was not the legislative intent that the scheme of review now available under the aegis of s 476(1)(a), operating in relation to sections such as s 353 and s 420, should result in those provisions of the ADJR Act necessarily being imported into the scheme of review. I note that s 476(1)(a) finds an approximate parallel in s 5(1)(b) of the ADJR Act, but its scope of operation under the ADJR Act has not been found to render many of the other provisions of s 5 of that Act unnecessary. The decision in Eshetu (above) recognises that the review scheme under Pt 8 is a scheme or review sui generis. It does not by reason of the procedural obligations imposed by s 420, import all of the review grounds provided for under s 5 of the ADJR Act. In my view this is not one of those cases where the procedural obligation to accord substantial justice to the applicant has not been complied with. It is not the function of the Court to review the merits of the decision. Sometimes the line between according substantial justice as a procedural obligation and a merits review might be a fine one. Here the Tribunal has specifically adverted to the VFST material, and has expressly reached its conclusions in the light of it. That material was part of the evidence before it. There was other material. The Tribunal properly separated the questions of whether that material, and all the material before it, indicated that the applicant's fear was well-founded, and whether that fear was for a Convention reason. In that part of its reasons referring to the VFST material, it specifically addressed whether the applicant's fear or his symptomatology was evidence of, or established, either or both of those matters. It does not appear, therefore, that the Tribunal misunderstood the potential import of the VFST material or failed to have regard to it. The fact that the Tribunal, despite that material, reached a conclusion which was different from the views expressed in that material does not itself lead to the conclusion of irrationality, or unreasonableness, which might otherwise found this ground of review. It is the obligation of the Tribunal to consider such material, not to accept it. The Tribunal also had the advantage of much other material, including the oral evidence, and the benefit of itself seeing the applicant's evidence. The other aspect of this contention concerns the use which the Tribunal made of the applicant's failure to report the assaults upon him to the police. In my view, the Tribunal used that fact only for the limited purpose of observing that there was no evidence, by reason of inactivity in relation to the attacks on the applicant, that the authorities tolerated attacks upon Kurds either in the applicant's area or in other parts of Turkey, so that it could be said that there was a failure by Turkey to provide state protection in relation to such attacks. If no report was made, the absence of any action by the authorities about such attacks could not demonstrate such a failure, unless there were other cogent evidence to that effect. In my view the Tribunal did not err in the manner alleged in this regard. ARTICLE 1F It was acknowledged by the respondent that the Tribunal did not have jurisdiction to determine this issue, following the decision of the Full Court of this Court (Davies, Hill and Heerey JJ) in Daher v Minister for Immigration and Ethnic Affairs (1997) 147 ALR 643. The jurisdiction to review a decision that a visa applicant is excluded from the coverage of the Convention by reason of Art 1F is vested in the Administrative Appeals Tribunal: s 500 of the Act. It should be pointed out that the Tribunal's decision was given before that case was decided. The only matter argued was whether that excess of jurisdiction on the part of the Tribunal so infected its decision that, irrespective of whether it otherwise fell into error, its decision should be set aside. The effect of the Tribunal exceeding its jurisdiction in that way is that, "insofar as it relied upon Art 1F of the Refugee Convention", the decision was void ab initio: see Daher (above) at 647. Unlike Daher's case (above), where the initial decision-maker had not addressed the issue, so that the appropriate order was for the matter to be remitted to the initial decision-maker to do so, in the case now before the Court, the delegate of the respondent had positively found (albeit on the simple basis that "there is no indication that the applicant is excluded from the coverage") that the applicant is not excluded under Art 1F of the Convention from the coverage of the Convention. It was contended that the Tribunal's reasoning and conclusion as to the applicant's conduct as constituting "crimes against humanity" had clearly infected its approach to the issue of whether he had a well-founded fear of persecution. It was not put that, as a matter of law, because one ground for the decision was beyond jurisdiction necessarily the decision must be set aside even though another independent ground for the ultimate decision was found to exist. In other areas of administrative law, the courts have adopted the common sense approach of considering the significance of the invalid exercise of power to the ultimate decision to determine whether it is appropriate to sever that which is invalid from that which otherwise constitutes a valid exercise of power, eg Kingsway Investments (Kent) Ltd v Kent CC [1971] AC 72; Transport Ministry v Alexander [1978] 1 NZLR 306. In my view, the decision of the Tribunal insofar as it was founded upon Art 1F of the Convention is severable from, and does not infect, the reasoning or conclusions of the Tribunal in relation to Art 1A(2) of the Convention. It reasons are separated under headings into the several topics addressed: decision under review, jurisdiction, legislative framework, background and claims, discussion of evidence and findings, and decision. The major part of its reasons is under the heading: discussion of evidence and findings. As appears above, the Tribunal has addressed the applicant's several claims in sequence and has made findings in relation to each, having regard to other material available to it. The result of that consideration was the conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason. Having reached that conclusion, the Tribunal then discretely turned to consider Art 1F of the Convention. It introduced that part of its reasons as follows: "Without resiling in any way from any of its findings recorded earlier in this decision, the Tribunal also notes that if the applicant were to have a demonstrated well-founded fear of persecution for a Convention reason, his application for a protection visa would fail on the basis of the provisions of Art 1F of the Convention . . ."