Ozberk v Minister for Immigration & Multicultural Affairs [1999] FCA 700 | Case summary

1 This is an appeal from a decision of Marshall J dismissing an application made under Part 8 of the Migration Act 1958 (Cth) ("the Migration Act") for an order for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 9 January 1997, the Tribunal had affirmed the primary decision of a delegate of the respondent, made on 28 May 1996, to refuse to grant protection visas to the appellants. The first appellant, Mr Ozberk, is the husband of the second appellant and father of the third and fourth appellants. All hold Turkish citizenship and are of the Alevi religion and Kurdish ethnicity. The Tribunal was not satisfied that the appellants were persons to whom Australia had protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees. 2 The appeal to this Court as originally formulated raised a number of grounds that are no longer pursued. Counsel for the appellants, Mr Niall, sought leave to amend the notice of appeal to abandon all but one of the original grounds and to raise new grounds. The application to amend was not opposed by counsel for the respondent and leave to amend was granted. 3 The notice of appeal as amended raised, essentially, three grounds. The first was that the learned primary judge was in error in refusing to entertain an argument based upon non-compliance by the Tribunal with s 430 of the Migration Act. The second was that the Tribunal had in any event failed to comply with s 430 and that, irrespective of whether or not the primary judge would have allowed the point to be raised, it should now be determined by this Court. The third ground was to the effect that there had been a constructive failure by the Tribunal to exercise its jurisdiction in that, it was contended, the Tribunal had not dealt with one of the essential issues in the case. 4 It is convenient to deal first with the ground of appeal that complains that the Tribunal did not give reasons in the manner in which it was required to do by s 430 of the Migration Act. 5 The relevant part of s 430 provides: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

6 The appellants argue that the Tribunal did not comply with s 430 because it failed to set out its findings on whether the brother of the first appellant was a member of the Kurdistan Workers Party (PKK) and wanted by the Turkish authorities. It was said, too, that the Tribunal failed to comply with s 430 because it failed to refer to the evidence or other material upon which it did make findings in relation to the first appellant's brother, and also it failed in assessing the chance that Mr Ozberk would face persecution on the basis of his ethnicity. 7 Both parties agreed that the relevant legal principles in connection with compliance with s 430 by the Tribunal are as stated by a Full Court of this Court in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402. In that case, Sackville J, with whom Davies and Beazley JJ agreed, discussed (at 413 - 416) the requirements of the former s 166E(1) of the Migration Act, now s 430(1). Reference was also made to the observations by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 271-2 and 291 and to statements of principle by Finn J in Thiagarajah Kandiah v Minister for Immigration and Multicultural Affairs (unreported, 3 September 1998). 8 As we have said, the essential complaint based on s 430 was that the Tribunal's reasons did not deal with the appellant's case insofar as it related to Mr Ozberk's brother's membership of the PKK. It was said that it was central to the Tribunal's assessment of both the present and the future chance of persecution that a finding be made about the actual political position of the brother; that is to say, whether or not he is or had been a member of the PKK. It was said that a failure to consider and determine that matter as a matter of fact indicated that there had been a failure to comply with s 430 of the Migration Act. 9 The Tribunal's path of reasoning involved, however, an assumption that Mr Ozberk's brother was in fact a member of the PKK and indeed had been sought by the Turkish authorities for a long time. On that assumed position, the Tribunal found as a fact that Mr Ozberk had not been persecuted, and indeed had been retained in employment at a military air force base for many years until shortly prior to his departure for Australia. The two most relevant passages in the Tribunal's reasons for decision which dealt with this matter are to be found at pages 9 and 13 of those reasons. At page 9, the Tribunal concluded that there had been inconsistencies in the applicant's case and that he had not been beaten by the police as he claimed, either in January 1994 or at any other stage, in relation to the activities of his brother. The Tribunal went on to say that: "if the Applicant was of any interest to the authorities as a result of PKK activities of his brother, he would not have retained his job at the military base." 10 This, as can be seen, proceeds upon the assumption that Mr Ozberk's brother was a member of the PKK. 11 The Tribunal returned to the point at page 13 of its reasons, where, having dealt with the applicant's general claims in relation to ethnicity, it continued: "Having rejected the Applicant's specific claims in relation to his political profile and in relation to his brother, the Tribunal is satisfied that the Applicant does not face a real chance of persecution as a result solely of his Alevi religion or Kurdish ethnicity." 12 In these circumstances, it must be concluded that the Tribunal did fulfil the obligations imposed upon it by s 430 of the Migration Act. It proceeded upon an assumption that may be said to be relevantly favourable to the applicant's case, and, having done so, nevertheless concluded, both as to the past and the relevant future, that Mr Ozberk did not face a real chance of persecution and accordingly was not a person to whom Australia owed the relevant obligations. 13 Our conclusion in relation to s 430 means that we must reject the closely related submission that there had been a constructive failure on the part of the Tribunal to exercise the jurisdiction conferred upon it by the Migration Act. We have reached these conclusions having taken careful account of the very comprehensive submissions made by Mr Niall who appeared for the appellants. Mr Niall put his case with great clarity but it follows from what we have said that the principal grounds of appeal must be rejected. 14 In relation to the ground of appeal, which alleges in substance that the learned primary judge should have exercised his discretion to allow s 430 to be argued, we merely say that if the application can be taken to have been pursued to the extent that it required a ruling, it was nevertheless an application that in our view was bound to fail. It is therefore unnecessary to say anything more about that ground. Likewise, we think it unnecessary to rule upon whether in all the circumstances there should have been a formal amendment, or that there should now be a formal amendment, to the application for judicial review to ensure that the various grounds that Mr Niall did wish to argue were, as a matter of appropriate form, within the scope of the judicial review application. 15 The order of the Court is that the appeal be dismissed with costs.

Ozberk v Minister for Immigration & Multicultural Affairs

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Judgment (9 paragraphs)

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