Yilmaz v Minister for Immigration & Multicultural Affairs

Background Circumstances and the Tribunal's Decision 2 (1) Mr Yilmaz, a Turkish national, is an Alevi of Kurdish ethnicity. His application for a protection visa under the Act is based on his claimed well-founded fear of being persecuted for reasons, variously, of race, religion and political opinion. He arrived in Australia in July 1997 on a temporary business visa which visa was obtained as a result of false information being presented to Australian consular officials. 3 (2) The applicant stayed initially with members of the Kurdish Association an officer of which partially filled in his protection visa application form. On 4 August 1997 a meeting took place with a solicitor of Victoria Legal Aid at which Mr Yilmaz provided some details of circumstances and events that allegedly gave rise to his fear of persecution. On 7 August the visa application was lodged, the relevant form containing the annotation in relation to the grounds of the application: "STATEMENT TO FOLLOW". An accompanying letter from Victoria Legal Aid noted (inter alia): "A statement in support of the applicant's claim will be provided as soon as possible. Please note that legal aid assistance was not confirmed in this matter until 1 August 1997 and Mr Yilmaz was unable to provide final instructions regarding his application until 6 August 1997. The statement requires synthesis of detailed information and I do not envisage its completion for a period of 1-2 weeks. In the circumstances I request the Department to refrain for a two-week period from making any decision regarding this application." 4 (3) On 13 October 1997 Mr Yilmaz signed a statutory declaration that chronicled his various claims. It was posted to the Department of Immigration and Multicultural Affairs on 15 October 1997, the very day coincidentally that the Minister's delegate refused Mr Yilmaz's application essentially for want of any evidence in support of it. 5 (4) An appeal to the Tribunal was made and on 21 May 1998 a second statutory declaration was signed the object of which was to correct errors in the first declaration. Illustrative of the corrections is the following: "At paragraph 9, my declaration suggests that I participated in the Nevroz celebration from 1988-1994, I could not possibly have participated in the 1988 festival because I was in Libya for the first half of 1988. I did participate every year thereafter, however it was only in 1990 and 1992 that I was arrested, and it is therefore incorrect to say that I was arrested on each occasion that I participated. On each of the occasions when I was arrested, we were taken to Gayrettepe Police Station, held for about three days, subjected to physical and verbal abuse, blindfolded and beaten, sprayed with cold water, denied food and drink, and interrogated as to who our leaders were, what terrorist organisation we belonged to, etc. We were eventually released on each occasion." The second declaration, as well as a submission from Victoria Legal Aid that annexed a deal of country information from a variety of sources, was sent to the Tribunal. 6 (5) On 14 July 1998 the Tribunal conducted its hearing at which Mr Yilmaz gave evidence through an interpreter. In the course of that hearing evidence was given that was inconsistent with the applicant's two statutory declarations. Again I note by way of illustration the following. As with the earlier illustration, it refers to the Nevroz festival: "THE INTERPRETER: … I passed the day 21st of March 1993, the Navros Festival - during the Navros Festival I had been detained three days. MR BREWER: You before told me you - the times you were detained at Navros were 1990 and 1992? THE INTERPRETER: I did - I was detained in '93 too. I was detained too in '93. So at the end of '93, DEP was closed down. MR BREWER: You are now saying that on three occasions you were detained during or after Navros and before. At the time of Navros celebrations in three years you were detained? THE INTERPRETER: Actually, sir, I was detained in '94 and '95 as well. MR BREWER: Well, why didn't you say that before? THE INTERPRETER: I had put them all in my statement, sir. My file, my statement, sir, contained that, definitely. MR BREWER: I asked you specifically about this before and you said that in 1990 and 1992 you were detained on each of those occasions for three days, but you participated in other years but made no mention of any detention? THE INTERPRETER: Excuse me, sir, it's probably my - because I am trying to explain things to you in order, like from the beginning going upwards, that's what I was trying to do." Likewise the Tribunal's questioning made plain that the reason for the late lodgment of the claims and Mr Yilmaz's credibility generally were of concern to it. 7 (6) A further submission of Victoria Legal Aid was sent to the Tribunal on 31 July. This dealt both with country information and with the apparent inconsistencies within, and credibility concerns affecting, Mr Yilmaz's evidence and statutory declarations. 8 (7) On 22 October 1998 the Tribunal notified Mr Yilmaz of its decision affirming the delegate's decision not to grant a protection visa. The various events upon which Mr Yilmaz relied to substantiate his application related predominantly to his association with, and activities as a supporter of, the political party HADEP (a legal organisation), but several also were alleged to involve his ethnicity or religion. Though the Tribunal did not deal explicitly with each and every claim made in the declarations and evidence put before it - a matter returned to below - it rejected his application. Primarily for reasons relating to his credibility it refused to accept that some number of the events relied upon occurred, or else bore the complexion the applicant put upon them. Integral to the credibility finding were the belated and not satisfactorily explained delay in making his claims (ie in the first statutory declaration); the inconsistencies between his two declarations and oral evidence; his retention of a passport throughout the period of his "alleged troubles"; and his fraud in obtaining a visa to Australia. Illustrative of the adverse credibility finding is the Tribunal's treatment of the alleged arrests at Nevroz festivals: "In relation to claims regarding the consequences of participation in Nevroz demonstrations the applicant in his aforementioned statutory declaration said that each time he participated in such demonstrations between 1988 and 1994 he was detained for three days. At the hearing he initially stated that he started participating in Nevroz demonstrations in 1990 and that he was detained for three days in 1990 and 1992. He later said that he was arrested and detained following four other Nevroz demonstrations, for periods of three days to a week. In view of the discrepancies in the applicant's claims regarding the time and length of detentions following Nevroz demonstrations the Tribunal finds that they have been fabricated in order to establish a claim to refugee status. The Tribunal does not find it plausible that if the claims of detention were true the applicant would significantly delay making any claim at all and then, after having the claims made in his declaration of 13 October 1997 read back to him, fail to correct errors regarding key aspects of his claims. The Tribunal notes, in any event, that the applicant was never charged with an offence. Even if his claims of detention were true they would not, in the circumstances of this case, indicate that he remained of any interest to the authorities." To the extent that the Tribunal accepted that Mr Yilmaz was detained or mistreated by the authorities it nonetheless concluded of such occurrences that in no case it considered did Mr Yilmaz thereafter "remain of any interest to the authorities". Of his involvement in HADEP, it concluded his role with that body was limited. And more generally it found: "He has made no credible claim of personal involvement in overt political activity that establishes a real chance of persecution in the foreseeable future for any Convention reason." Finally, the Tribunal relied on country information in support of its conclusion that Mr Yilmaz's membership of HADEP, his ethnicity, and his religion did not in the circumstances expose him to a real chance of persecution.

(i) The "late" making of claims 16 One of the underpinnings of the Tribunal's adverse credibility findings was its view that the applicant did not make any actual claims in support of his application until after the delegate's decision. Illustrative of how that view was employed in the Tribunal's reasoning are the following conclusions it arrived at concerning several claims made by Mr Yilmaz: (i) "In view of the continuing legality of HADEP; the applicant's limited role with HADEP; the belated nature of claims made by the applicant; and his ability to depart Turkey legally without difficulty, the Tribunal finds does not find [sic] it credible that his shop was persistently raided or that he was on those occasions harassed and/or detained due to any association with HADEP." (emphasis added) (ii) "[The applicant] claims that his arrest [in March 1995] was due to the discovery of his HADEP membership card. The Tribunal has already noted that HADEP was not an illegal entity. The applicant made no mention of the aforementioned incident or any other particular claims when lodging an application for a protection visa. Indeed, he made no claims at all until after the decision of the delegate and has provided no satisfactory explanation for the length of his delay in outlining any detail. In assessing all the circumstances the Tribunal does not find it credible that the applicant was detained in March 1995 in relation either to forthcoming Nevroz celebrations or his association with HADEP." (emphasis added) 17 The applicant's complaint about the Tribunal's usage of the "delay" in the making of claims is twofold. First it is claimed there was no evidence for the view taken by the Tribunal and yet it based its decision upon that fact. Secondly, it is submitted that the Tribunal itself made the "delay" a material fact and as such, for s 430 purposes, had to address explicitly the evidence on which its conclusion was based. 18 Considered in isolation the Tribunal's attitude to the alleged delay in making claims may appear harsh and unsympathetic. The applicant's solicitor both at the time of lodging the visa application and in later written submissions offered explanations of the delay in the making of claims. Equally, it is the case that from the time of his first interview with his solicitor on 4 August 1998, Mr Yilmaz was asserting claims of the type he ultimately made to the Department. 19 If the adverse credibility finding was made solely upon the basis of the alleged delay, there would in my view have been real cause for disquiet in the Tribunal's apparently cursory treatment of the evidence on delay. Though given differential significance in the conclusions reached on the various claims made by Mr Yilmaz, the delay was only one of a composite of factors that contributed to the Tribunal's adverse view of the applicant's credibility. As important, if not much more so, were the clear inconsistencies in his various claims. And there was as well the view taken of his ability to depart from Turkey during the time of his troubles. 20 It is the case that the Tribunal made Mr Yilmaz's credibility material. But in dealing with that fact it has in my view referred sufficiently to the body of evidence on which it has relied - delay, inconsistencies, passport, false representation, etc - to base its finding, as to satisfy the requirements of s 430(1) of the Act. Insofar as it took the view that Mr Yilmaz made no specific claims until after the delegate's decision, this view is strictly correct if the Tribunal is taken as meaning, as I think it should be, that no claims were made to the appropriate authorities who were to make the decision on his visa. The conclusion that no "satisfactory" explanation of the delay was provided, seems particularly harsh. But this said, it amounts to no more than what might seem to be "unsound or questionable reasoning" - a matter of merits review. 21 Accordingly I reject the claims founded on the view taken by the Tribunal of Mr Yilmaz's delay in making specific claims. (ii) Failure to make findings on all claims 22 When one aggregates all of the declarations and evidence given by Mr Yilmaz he would appear to have made reference to sixteen events or circumstances upon which he relied to support his application. One such event - an alleged detention in March 1994 - was not referred to at all in the Tribunal's reasons. Two others - one involving an alleged detention and beating on May Day 1994, the other, a detention and beating on May Day 1997 - while referred to by the Tribunal in its narrative of Mr Yilmaz's claims, were not the subject of explicit findings. A fourth, involving police threats of death, it is claimed was mischaracterised by the Tribunal and hence not dealt with. As to the remaining events, all were dealt with by the Tribunal though by no means to the applicant's satisfaction for reasons I later indicate. 23 Before dealing with the criticisms made of the Tribunal's treatment of the applicant's claims I should indicate that of all of the events relied upon involving beating and/or detention of the applicant by the authorities that were explicitly considered (there appears to be nine of these), the majority were disbelieved and the remnant were dealt with on the basis that if they occurred the applicant thereafter in each instance did not remain of interest to the authorities. The emphasis on "lack of interest to the authorities" is, in my view, important to the structure of the reasons given the time frame relied upon by the applicant. Save in relation to his period of military service in the late 1980s, the events relied upon stretched from 1990 to 1997. The "lack of interest" findings in this setting should properly be taken as findings that the events in question were incapable individually of objectively founding the requisite fear of persecution. In this I agree with the respondent's submission on the shorthand character of the "lack of interest" formula. 24 Turning now to the omissions alleged. It is the case that where specific instances of maltreatment and detention are relied upon by an applicant a Tribunal ought generally address each such instance in its reasons. This I understand to be the burden of the Full Court's observations in Thevendram'scase concerning the materiality of past events relied upon by an applicant. Where, however, significant fabrication of events is found and findings are made over an extended period of time that an applicant was not of interest to the authorities, the failure to make explicit findings on some events that are alleged to have occurred within that period will not of itself automatically result in a failure to observe the s 430 procedures. If those "omitted" events are relatively similar in type and character to those actually considered and either rejected or regarded as not relevantly significant, if they properly can be regarded as overtaken in their possible significance by later events on which explicit findings are made, and if their credibility is likely to be strongly in issue, then their omission from the reasons may well not be considered material in the circumstances of a given case. The present, in my view, is such a case. 25 I do not consider that the present reasons for decision offend any of the rationales underpinning the giving of reasons. I do not consider that the applicant fairly can complain that, because of omissions made, he does not know why his case has been rejected, why the decision has gone against him. These reasons could have been more comprehensive in their coverage of the matters relied upon. But as they stand it cannot reasonably be said that for reasons of omission they did not address the case relied upon by the applicant. 26 An additional objection made is that the Tribunal mischaracterised and therefore misconceived one of the applicant's claims. That claim is that he was detained by police in 1997 and threatened with the same fate as his cousins whom he asserted were killed. The Tribunal though describing the applicant's claim in the above terms, dealt with it as a claim that the applicant "was, in effect, forcibly expelled from Turkey". I need only say that that characterisation of the claim, if somewhat over-stated, is consistent with the complexion the applicant himself placed upon the intent of the police: see Court Book at 134 which I need not reproduce. 27 The final two matters to which I should make reference are these. First, it is claimed that by focussing on whether the applicant remained of interest to the authorities, the Tribunal failed properly to consider whether he had a well-founded fear of persecution. While such a focus might in a given instance produce such a vice, as I have already indicated I do not consider that this occurred here. The "lack of interest" formula was used as shorthand for an event not providing a basis for a well-founded fear in the future. Secondly, though the Tribunal made separate and sequential findings on the claims made, it also indicated it considered them cumulatively. There is no proper basis in the reasons for my questioning whether such actually occurred. 28 Accordingly, I reject the claims based upon the Tribunal's failure to mention or properly mention claims or to make appropriate findings on them. (iii) The treatment of HADEP 29 The Tribunal made the following finding concerning HADEP: "It is clear that HADEP remains a legal political party. There is no evidence that its members or supporters are systematically subjected to harm from the authorities or that persons with a profile like that of the applicant face a real chance of such harm in the foreseeable future. Although unsuccessful, HADEP was able to stand candidates at recent elections." 30 The applicant challenges this finding both on s 430/s 476(1)(a) and on s 476(1)(g) grounds on the basis that he furnished the Tribunal with country information that showed HADEP officials and supporters were at risk. Illustrative of this was UNHCR Country Information of 19 January 1996 that noted (inter alia): "Numerous sources, including Amnesty International, Human Rights Watch and the US Department of State's Country Reports 1994, maintain that members, officials, organizers and supporters of DEP and HADEP are at risk of government harassment, arbitrary detention, extrajudicial execution, 'mystery killing', and 'disappearance' (HRW Dec 1994, 231; ibid Dec 1995, 240-41; Country Reports 1994 1995, 994; Al Feb 1995, 14; ibid 13 July 1994; ibid 31 May 1994; see also IPS 28 Sept 1994; Reuters 14 Dec 1994; AFP 14 Dec 1994; Current History Jan 1995, 8). According to Amnesty International, 'the clearest identifiable group of victims [of extrajudicial execution] are members of the People's Democracy Party (HADEP)' (Al Feb 1995, 14). The same report maintains that 'more than 100 members and officials of these parties [HADEP and DEP] have been killed since 1992' (ibid; Reuters 14 Dec 1994). An article published in the January 1995 issue of Current History contends that a 'systematic and brutal campaign of intimidation' of DEP representatives began in the summer of 1993 (Current History Jan 1995, 8). Human Rights Watch claims that government harassment and intimidation forced HADEP, in November 1994, to withdraw from by-elections originally scheduled for December 1994 (HRW Dec 1994, 231; IPS 28 Sept 1994)." 31 The Tribunal clearly took a view of the applicant's political profile and the political activity he engaged in, that led to its concluding that these were not such as would establish a real chance of persecution. That finding had, of course, to be informed by its appreciation of the exposure to risk that HADEP membership entailed. The Tribunal's conclusion on that matter (quoted above) may at first flush seem contentious in light of the evidence before it. One cannot, though, disregard its use of the adverb "systematically" in that conclusion. When regard is had to it, and bearing in mind the injunction of Wu Shan Liang, I am unable to conclude that an appellable error has been made. The conclusion does not negate the possibility of persecution of HADEP members or supporters. But it does assert that the applicant was a person whose own profile was not such as to give rise to a real chance of harm. So considered it is unobjectionable. 32 I reject the claims based on the treatment given HADEP in the Tribunal's reasons. (iv) Actual bias 33 This claim is not based on any allegation of conscious malice or prejudice in the Tribunal against the applicant. Rather it is claimed that the matter was prejudged by the Tribunal and that its mind was not open to persuasion: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 563; although this prejudgment was not itself so manifest in the manner of conduct of the Tribunal hearing as reasonably to require objection at the time. I am asked to infer actual bias from the structure and reasoning of the Tribunal's reasons for decision as a whole. The matters particularly emphasised by the applicant are the treatment of the country information concerning HADEP Mr Yilmaz submitted, of his membership of that body and of the activity of his cousins. 34 It need hardly be said that a finding of actual bias is, to use the words of Burchett J in Sun Zhan Qui, above, at 555: "a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional." 35 Ordinarily considerable caution should be demonstrated when inferring such bias solely from a decision-maker's reasons for decision where conduct suggestive of that bias was not manifest at the prior hearing of the matter. 36 As I have found, the reasons betray no other reviewable error and they do not, in my view, bespeak an actual bias, a prejudgment, on the Tribunal's part. Particular findings have gone against the applicant which may have gone otherwise with a differently constituted Tribunal. Likewise a different Tribunal may have attributed different significance in terms of weight to Mr Yilmaz's membership of HADEP and to his activities in support of that body. He may as well have hoped for a greater sympathy to have been shown in the Tribunal's treatment of some at least of those matters that resulted in an adverse credibility finding. But even if all of this be accepted, his allegation at best amounts to no more than that, as a matter of merits review, another Tribunal could have found in his favour. That possibility does not itself bespeak actual bias. Indeed the Tribunal's reasons are in my view bereft of indications lending any reasonable colour to the claim made. 37 I reject the allegation of actual bias.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)

Cited By (3)