Conclusion on the appeal
8 The learned magistrate was correct in concluding there was no error, still less jurisdictional error, in the way in which the Tribunal dealt with the first issue. The Tribunal had made explicit findings about the events alleged by the appellant and the current state of human rights abuses in Turkey. It thus had a proper basis to make its assessment as to whether the appellant's alleged fear of persecution on his return was well-founded.
9 Counsel for the appellant criticized the Tribunal's finding that the appellant's last encounter with the authorities was in 1995 and that "the issue was finalized at that time" even though, as the Tribunal found, for some time thereafter "local officials kept him under surveillance in his home town". However, although surveillance in some circumstances might involve harassment and interference with a person's life which could amount to persecution, there was no evidence that this occurred in the present case and the appellant's case before the Tribunal did not suggest it. In the light of the evidence as a whole, and in particular evidence that the appellant was able to leave Turkey in 2001 without hindrance using genuine documents which identified him, the Tribunal did not commit jurisdictional error in reaching the conclusion it did.
10 Counsel for the appellant referred to the High Court's decision in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112. In that case, the majority's conclusion appeared to hinge on their assessment that it was "highly likely" that the appellants, homosexuals in Bangladesh, had acted discreetly in the past because they feared they would suffer harm unless they did: see per McHugh and Kirby JJ at [39]. Thus the Tribunal committed jurisdictional error in failing to inquire into and determine whether the modified conduct was influenced by the threat of harm: ibid at [43].
11 In the present case, the appellant made it clear he was not interested in political, as distinct from cultural, affairs. At the Tribunal hearing his agent said:
"… (the appellant) has been arrested on several occasions for different events obviously, but that would, in itself, build up a profile of someone who could be suspected of political activity, and that although he himself has admitted he is not active at all. He is active culturally here but he is not active politically. Certainly wasn't in Turkey, but is still of an age and of a profile that it would be believable that the government would continue to suspect him."
Similarly, in one of his written statements, the appellant spoke of his activities with the Kurdish Association in Australia since his arrival in terms which are cultural rather than political. He said it was important to "be with other Kurdish people and to openly acknowledge my Kurdish identity and heritage". The claims of the appellant were thus confined to an assertion of fear based on imputed political opinion arising from his participation in certain events in the past in Turkey. The Tribunal dealt adequately with that claim.
12 The learned magistrate was correct in his characterisation of the name in the notebook issue. This was part of a larger narrative which it was open to the Tribunal to reject as a matter of fact.
13 The Tribunal also based its decision on the alternative ground of the appellant's capacity to relocate within Turkey. This finding does not appear to have been challenged before the FMC and was not challenged on the appeal to this Court. This provides a further basis for the dismissal of the appeal. A notice of contention under O 52 r 22(3) should have been filed and I gave leave for it to be filed after the hearing.
14 The appeal will be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.