VAH v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicants, who are husband and wife and citizens of Turkey, arrived in Australia on 10 December 2000. Shortly after their arrival they applied for a protection visa on the ground that the male applicant had a well founded fear of persecution for reasons of race, membership of a particular social group and political opinion were he to return to his country of nationality, Turkey, or to his place of residence, North Cyprus, which was referred to by the RRT as the Turkish Republic of Northern Cyprus ("TRNC"). The TRNC is not recognised as a sovereign nation. The female applicant's claims were based upon the success of the male applicant's claims. For ease of reference I will refer to the male applicant as the applicant. 2 After the application for a protection visa was refused by a delegate of the Minister, the applicants applied to the Refugee Review Tribunal ("the RRT") for the review of the delegate's decision. The RRT affirmed the decision of the delegate not to grant a protection visa. Although the decision of the RRT was handed down prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the amending legislation") it was common ground that the amending legislation applied to the present proceeding as it had been commenced after 2 October 2001, the date of commencement of Schedule 1 of the amending legislation which made the relevant substantive amendments to the Migration Act 1958 (Cth) ("the Act"). 3 The applicants have applied to the Court pursuant to s 39B of the Judiciary Act 1903 (Cth) and ss 475A, 477, 478 and 479 of the Act for writs of prohibition and certiori and for an injunction and declaration in relation to the decision of the RRT. In Walton v Ruddock [2001] FCA 1839 ("Walton") at [45] I summarised the issues that arise for determination in a case such as the present. One of those issues is whether the decision of the RRT involved jurisdictional error. In the present case it is common ground that if the RRT did not fall into jurisdictional error in the sense discussed by McHugh, Gummow and Hayne JJ at 21-22 [82] in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 ("Yusuf") the application of the applicants for judicial review must fail as it is not contended that there was any other failure on the part of the RRT to observe or comply with any provision of the Act or with any other requirement imposed by law in respect of the decision. As I explained in Walton even if jurisdictional error in the sense discussed below has occurred, there remains the question of whether s 474(1) of the Act precludes the Court from granting judicial review in respect of that error. 4 In these circumstances it is appropriate at the outset to consider whether the applicants are entitled to succeed in their claim that the RRT fell into "jurisdictional error", which was explained by McHugh, Gummow and Hayne JJ at 21-22 [82] in Yusuf as follows: "It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision‑maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the tribunal): 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 5 The applicant claims that he was persecuted in the TRNC, where he has lived most of his life, because he had and was perceived to have a Kurdish identity and profile and, as a consequence, has been imputed to have a pro-Kurdish, anti-government political opinion. In support of his claims the applicant outlined the circumstances that led to him having a Kurdish identity and a pro-Kurdish political profile and explained in detail the various persecutory incidents which he claims to have suffered as a consequence of that actual or perceived Kurdish identity and political profile. 6 The applicant's Kurdish ethnicity is derived from his mother who was Kurdish but who died when the applicant was one or two years old. The applicant's father was of Turkish ethnicity and the applicant's religion was Islam, as practiced by the Alevi People (his father is an Alevi). The applicant's language is Turkish rather than Kurdish. He was born in Tokat province in Turkey in 1973, where he was married in 1998. His Turkish passport, which was issued on 31 October 2001, was issued in Tokat province. 7 The applicant moved with his family to North Cyprus in about 1975 after his mother died and he and his family lived in the TRNC in a predominantly Kurdish village, Malatya. The applicant's father was a successful small business operator and the applicant's siblings live in both Turkey and North Cyprus. The applicant claimed, inter alia, he had been beaten at school, beaten and confined during his military service and mistreated by the police as a result of his Kurdish identity and pro-Kurdish political views. Although the applicant was not actively involved in any Kurdish political parties or movements his claims of past persecution were based, in part, on his expressions of support for the Kurdish cause. 8 Plainly, it was critical to the outcome of the applicant's case that the RRT find that the applicant's claims of past persecution in the TRNC by reason of his ethnic identity and political profile were credible. However, the RRT stated that it "did not find the applicant's claims credible". As was observed in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 576 [187] by Gummow and Hayne JJ, the RRT's function is to decide whether an applicant's claim is made out. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417 [67] McHugh J pointed out that, essentially, a finding as to whether an applicant should be believed in his (or her) claim is a finding on credibility, which is the function of the primary decision maker par excellence. The Full Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559 explained the difficulties confronting an applicant wishing to seek judicial review of findings on credibility issues that were open to the RRT on the material before it and were arrived at after consideration of matters that were logically probative of the issue of credibility. 9 Counsel for the applicants recognised the difficulty confronting him in challenging the RRT's adverse credibility findings. However, he contended that the RRT fundamentally misconceived the questions it was required to address. In substance, it was contended that the RRT failed to distinguish between persecution by reason of actual ethnicity, membership of a social group or political opinion and persecution by reason of perceived or imputed ethnicity, membership of a social group or political opinion. Counsel submitted that the RRT erroneously proceeded on the basis that the applicant's fear of persecution must be by reason of his actual ethnicity, race or membership of a particular social group "in the sense of objective patrilineal 'racial' identity". It was said that the RRT's reasoning was that, objectively, as the applicant was ethnically or racially Turkish he could not have experienced the persecution he claimed because he was not a Kurd and the experiences claimed to have been suffered by him could not be attributed to his Kurdish identity. 10 A similar error was said to have been made in respect of the applicant's claim to have a pro-Kurdish political profile. It is contended that the RRT's reasoning was that, as the applicant was not politically active in any pro-Kurdish causes or political movements, he could not have the political profile he claimed to have. 11 If the RRT made the errors attributed to it it may well have failed to address the applicant's claims of perceived or imputed ethnicity and political opinion and, as a consequence, would have fallen into jurisdictional error by failing to apply itself to the question it was required to address, asking itself a wrong question and ignoring relevant material: see Yusuf at 21-22 [82] and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208-209 [31]. See also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and [42]. 12 It is undoubtedly correct that the RRT, in rejecting the issue of the applicant's credibility, placed considerable weight on its finding that "the applicant is ethnically Turkish, not Kurdish" although it accepted that he has a "partially Kurdish background" (ie that his mother was Kurdish) and that "he sympathises with the Kurdish people". The issue raised by the applicant, however, relates to the manner in which the RRT used those findings. 13 If the RRT's use of those findings related to the probability of whether the applicant had the perceived or imputed identity and profile he claimed to have, then his actual identity and ethnic profile, together with other matters, can be logically probative of his perceived or imputed identity and profile. Thus, it would be open to the RRT to form the view that an applicant who is of Turkish ethnicity, was born in Turkey and who speaks Turkish and not Kurdish is unlikely, absent special circumstances, to have imputed to him a Kurdish identity or profile. However, if the RRT regarded the findings as to the applicant's actual identity and profile as determinative of the issue it had to address, then that would afford a strong ground for contending that the issue determined by the RRT was limited to the applicant's actual, rather than perceived or imputed, identity and profile. 14 A careful reading of the RRT's findings and reasons demonstrates that it used its findings in the former, rather than the latter, manner. The main findings by the RRT were expressed by it as follows: "The Tribunal did not find the applicant's claims credible. It finds that the applicant is ethnically Turkish, not Kurdish. It accepts that the applicant has a partially Kurdish background (i.e. that his mother was Kurdish). It accepts that he sympathises with the Kurdish people. But it does not accept that some of the things that he claims happened to him actually happened, it does not accept that others of his experiences happened because of his ethnic background or imputed political opinion (i.e. pro-Kurdish separatism, or other anti-government views), and it does not accept that other incidents were as serious as he claimed (i.e. that the authorities were involved). In general, the Tribunal considered that the applicant's claimed experiences were far out of step with his identity: on his own evidence he has not set out to be a political activist and his pro-Kurdish views and knowledge, while understandably sympathetic, are not strong enough to sustain a finding that he has an acute stance on this issue. He lived most of the 90s as an unobtrusive public servant. This being the case, the Tribunal considered it implausible that he could so many times have been treated so badly for merely expressing an opinion in the course of an argument, then come to be identified as a pro-Kurdish activist and routinely detained every time there was some kind of trouble. In general, it does not accept that he was arrested or detained by the police, or that he expressed pro-Kurdish views to the police or to the military. The Tribunal has given weight to the assessments by the foreign services of the US, the UK and Australia. These assessments draw on a range of sources. In one it was noted that Amnesty was no longer reporting on Cyprus. The human rights reports clearly indicate a benign environment in Cyprus for Kurds. Kurds and Greeks are not treated alike. There is a very marked difference between the portrayals of their treatment in Northern Cyprus in the human rights assessments. There is certainly no evidence that Turks are mistreated because they have a Kurdish background on their mother's side, or because they identify with or speak in favour of Kurds." 15 The RRT, which then proceeded to make specific findings in respect of each of the persecutory incidents relied upon by the applicant, explained why it did not regard those incidents as sufficient to constitute past acts of persecution for a Convention reason. The reasons given, inter alia, included findings that the country information concerning Kurdish people in North Cyprus was such that incidents of the kind claimed were unlikely to occur in the TRNC for a Convention reason, as claimed by the applicant, in respect of a person who was only partly Kurdish or who expressed pro-Kurdish views. 16 The applicant's claim that he endured "some brutality during his military service" is an example of the difficulty confronting the applicant's contention on this issue. The RRT found that it was "implausible" that the brutality occurred as a result of the applicant "respond[ing]…to [his]…commander's question about where he came from, with the reply that he was Kurdish". The reasons given for that conclusion were stated as follows: "After all, he is not technically Kurdish, so the reply would be unnatural. (Where he is from is Turkey. His ethnicity is Turkish.) The applicant's account is also rendered implausible, as stated, by the country information. The applicant indicated that because he admitted to being Kurdish he was roughed up and detained and then tried before a military court for being Kurdish and questioned about links to PKK organisations, and then locked up for 10 days. The country information cited by the Tribunal offers no supporting evidence for the claim that merely being (or identifying as) Kurdish renders a person liable to such treatment when they do their military service." 17 It is unnecessary to set out the details of the various findings. The RRT, giving reasons in respect of each incident relied upon, did not accept that some of the incidents happened, accepted that others happened but did not accept that they occurred by reason of the applicant's Kurdish identity or political profile and also did not accept that other incidents were as serious as the applicant claimed them to be. It is fairly clear from its reasons that the RRT addressed the applicant's "identity" and "profile" in the sense of both his actual ethnicity and political opinion and his perceived or imputed ethnicity and political opinion. In doing so the RRT took into account the applicant's self identification as a Kurd, one example of which is set out in the above passage. 18 There is some substance in the contention of counsel for the applicant that in parts of its reasons the RRT may not have sufficiently distinguished between actual and perceived identity and profile. However, on a fair reading of the RRT's reasons as a whole, it addressed the likelihood of the occurrence of the past events relied upon by the applicant and the claimed cause of those events and did not accept the applicant's claims of persecution for actual or imputed ethnic identity and political profile, primarily because it did not accept that the events occurred as claimed by the applicant: cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575. In substance, the RRT was not satisfied of a causal nexus between the incidents relied upon and the applicant's actual and perceived or imputed Kurdish identity and political profile. 19 The RRT's findings were open on the material before it and were based on matters, including the applicant's actual identity and profile, that were logically probative of the issue being determined. The RRT did not misunderstand the applicant's claims. Rather, the RRT did not accept those claims. The RRT, as it was entitled to do, made findings as to the applicant's actual ethnic identity and profile, as to relevant country information and other factors, to arrive at its conclusions. No particular factor was regarded as determinative by the RRT and, while views may differ as to the weight the RRT gave to particular findings, weight is a matter for the RRT as the arbiter of fact. 20 For the above reasons, I am not satisfied that the RRT misunderstood or failed to address the applicant's claims of actual and perceived or imputed ethnic identity and political profile or that the RRT fell into jurisdictional error in relation to those claims. As counsel for