Yilmaz v Minister for Immigration & Multicultural Affairs

The Present Application 9 The applicant attacks the Tribunal's decision on three fronts. Stated in general terms these are that one could not be satisfied on a fair reading of the Tribunal's reasons for decision that the Tribunal (1) addressed the case before it; (2) properly applied the law to that case; or (3) dealt with the application with an open and unbiased mind. 10 The particular grounds of review allowable under the Act that are relied upon are (i) s 476(1)(a) (failure to observe procedures required to be observed), the relevant failure being an alleged non-compliance with the requirements of s 430 in relation to the contents of the statement of reasons; (ii) s 476(1)(g) and (4)(b) (no evidence to justify the making of the decision), the relevant error alleged being that the Tribunal based its decision on the existence of facts that did not exist when dealing with the applicant's credibility and with the possible consequences of HADEP membership; (iii) s 476(1)(e) (incorrect application of the law), the alleged errors being variously the Tribunal's failure to deal with two of the events relied upon by the applicant, the reliance placed upon the applicant's not being of interest to the authorities without considering the applicant's real chance of future persecution, the failure to deal with the applicant's claims cumulatively, and the misconceiving of some of the applicant's claims; and (iv) s 476(1)(f) (actual bias) in that the Tribunal closed its mind and was not open to persuasion. 11 Before dealing with the substance of these in turn it is appropriate to refer at the outset to a number of matters of general significance. First, the s 430 claim is at the forefront of the applicant's case. Insofar as presently relevant that section provides: "430 (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material question of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 12 It is clear that s 430 prescribes procedures of the type non-observance of which can found a claim under s 476(1)(a) of the Act. Equally it is clear that the section ordains what must be done by the Tribunal in its treatment of the material before it in a given case. As the Full Court observed in Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at para 37: "In one sense a failure by the RRT to comply with s 430(1)(c) and (d) may be said to be a technical breach. However, that approach misunderstands the significance of the section. In Paramananthan at 25-28 Merkel J considered the duties of the RRT under the Act. His Honour concluded that the inquisitorial and non-adversarial function of the RRT and the combined effect of the provisions governing the exercise of its inquisitorial powers (ss 414(1), 420, 425, 426, 427, 428 and 430) are such that the RRT is required to determine the merits of the case and in doing so each of the material issues raised by the material and evidence before it. That duty, in our view, is a fundamental incident of the statutory function of the RRT. In determining those issues the RRT must make findings on the questions which are central to the case raised on the material and evidence before it: see also Calado v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Moore, Mansfield and Emmett JJ, 2 December 1998) at 21-22; Buljeta v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 4 December 1998) at 13-14; and Logenthiran at 13 per Wilcox and Lindgren JJ and 1-2 per Merkel J. The cumulative effect of the statutory provisions to which we have referred is that the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence." Earlier in its reasons the Full Court also observed (para 23): "Without endeavouring to state an exhaustive definition of materiality in the context of s 430(1)(c), as we later explain, the past events that have caused the claimant to fear a real chance of persecution for a Convention reason if returned to his or her country of nationality will plainly constitute 'material questions of fact' for the purposes of s 430(1)(c)." 13 Secondly, the rationales for, and the expectations that generally can be entertained of, reasons statements were conveniently outlined by Finkelstein J in Comcare Australia v Lees (1997) 151 ALR 647 at 656. It is sufficient for present purposes merely to repeat His Honour's observations: "The imposition of an obligation upon the tribunal to provide reasons for a decision achieves a number of very important objectives. It ensures that the person whose interests may be adversely affected by a decision is told why the decision has been made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. It enables the public to have confidence that the tribunal has gone about its task appropriately and fairly: Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88. It allows a party who is dissatisfied with a decision to determine whether there has been some reviewable error made by the tribunal: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507. It imposes an intellectual discipline on the tribunal making it more likely that its decisions will not be arbitrary or capricious. Finally, the giving of reasons furthers judicial and quasi-judicial accountability: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. In determining whether the obligation to give reasons has been discharged a number of principles must be born in mind. First as Shepherd J said in Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 40 ALR 233; 59 FLR 132 at 157 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood: Ansett Transport at 507. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577. The reasons must disclose the reasoning processes of the tribunal: Telescourt v Commonwealth (1991) 29 FCR 227. Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through 'with a fine appellate toothcomb to find error': Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; 136 ALR 481; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 187." 14 Thirdly, bearing in mind that this Court properly can engage only in judicial, not merits, review in matters such as the present, it is appropriate to emphasise that the Tribunal does not commit a reviewable error "merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning": Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at para 146. 15 Fourthly, because of the significance credibility findings have assumed in this matter, it is appropriate to note that: "[w]hilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43). Nor is there a rule that a decision maker must hold a 'positive state of disbelief' before making an adverse credibility assessment in a refugee case": Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 at 16; see also Guden v Minister for Immigration and Multicultural Affairs [1999] FCA 908 at para 18.

(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.

Conclusion 38 Having rejected the various claims made by the applicant I will order that the application be dismissed.

A Suppression of Identity 39 At the hearing before me the applicant applied under s 50 of the Federal Court of Australia Act 1976 that, whether or not his substantive application be successful, his name be suppressed. The basis of that claim is his past membership of HADEP and the enduring fear he says this engenders. Evidence was tendered of recent country information identifying the detention of HADEP officials particularly in the south-east of Turkey. 40 The suppression order is not one I am prepared to make. Given the Tribunal's findings on Mr Yilmaz's political profile, the publication of his name in this proceeding already, the fact that such further publication as will occur seems unlikely to give rise to any appreciable risk to Mr Yilmaz, and the importance to be attributed to the principle of open justice, I do not consider this to be an appropriate case for a s 50 order. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Solicitor for the Respondent: Australian Government Solicitor