Yilmaz v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1999-12-17|Before: Sackville J

The Application 1 The applicant is a thirty-eight year old Turkish national. He has a wife and three children, all of whom are in Turkey. He arrived in Australia as a seaman, having jumped ship on 30 June 1999. 2 The applicant applied for a protection visa on 8 July 1999. On 6 August 1999, a delegate of the Minister for Immigration and Multicultural Affairs (the "Minister") refused to grant the applicant a protection visa. This decision was affirmed by the Refugee Review Tribunal ("RRT") on 5 October 1999. The applicant now applies to this Court for review of the RRT's decision. It will be seen that the application for a protection visa has been dealt with very expeditiously.

The Legislation 3 Under s 65(1) of the Migration Act 1958 (Cth) ("Migration Act")the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the regulations have been satisfied. A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees ("Convention"): Migration Act, s 36(2). That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister "is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]": Migration Regulations 1994 (Cth), reg 866.221. 4 Article 1A(2) of the Convention defines a refugee as a person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The Applicant's Claims 5 The applicant's claims were set out in written submissions to the Department and the RRT. He gave oral evidence at a hearing before the RRT on 16 September 1999. He was represented by a solicitor and gave evidence through a Turkish interpreter. 6 The RRT found that the applicant was, as he claimed, an Alevi (Alawi in Arabic). Alevi is the general term applied to Shiite Muslims who follow Ali and believe him to be the heir and successor of the Prophet leading the Muslim community. Alevis in Turkey are distinct from Alawites in Syria. 7 The applicant claimed that he feared persecution by reason of his political opinion and his religion if he were to be returned to Turkey. In summary, the basis of his fear was said to be the following: (i) he had been detained and tortured in 1978 in consequence of distributing an "illegal communique" on behalf of a left-wing organisation known as "Dev Genc ("Revolutionary Youth"); (ii) shortly after the applicant finished his basic military training in 1981, he was imprisoned by the military and tortured for ten days by reason of his leftist activities; (iii) the applicant was detained overnight and bashed on his wedding day in 1985 because the authorities learned that young people had let off fireworks known as "grenades" at the wedding; (iv) the applicant was again detained in 1987 while returning to Turkey from Italy with a number of other seamen and was subsequently tortured because the police regarded him as an Alevi left-winger; (v) the applicant was arrested in Giresun in 1996 because of his involvement in setting up an organisation of Alevis; (vi) in September 1998, the applicant fled from the police who were checking identity cards; and (vii) the applicant had been told by his wife after he applied for refugee status in Australia that the authorities in Turkey were looking for him.

The RRT's Reasons 8 The RRT found that "aspects of [the applicant's] evidence were vague, implausible and inconsistent with the independent evidence". Accordingly the RRT did not consider the applicant to be a credible or reliable witness. 9 Although accepting that the applicant was an Alevi, the RRT noted that, on his own evidence, the applicant did not practice his religion. In any event, the independent evidence did not suggest that Alevis were prevented from practising their religion in Turkey. Indeed, the country information showed that the Turkish government generally perceived Alevis as supportive of its officially secularist position. Accordingly, the RRT was not satisfied that the applicant faced treatment amounting to persecution for reasons of religion at the hands of the Turkish authorities. 10 The Department of Foreign Affairs and Trade had expressed the view that Alevis are more liable to harassment by Sunni fundamentalists in Turkey in impoverished rural areas and in city slums. However, the evidence did not suggest that the applicant was either a particularly poor person, nor that he lived in an impoverished area. The RRT considered that the chance that the applicant would face persecution at the hands of Sunni fundamentalists by reason of his religion was remote. In any event, so the RRT found, if the applicant faced persecution at the hands of Sunni fundamentalists, he would be able to take advantage of the protection afforded by the Turkish authorities. 11 The RRT accepted that the applicant was a Dev Genc sympathiser in the 1970s and that he had been detained in 1978 because he has been caught distributing Dev Genc leaflets. The RRT also accepted applicant's claim that he had been detained during military service in 1981 and accused of being a left-winger. The RRT further accepted that the applicant's detention on each occasion included physical mistreatment amounting to persecution for a Convention reason. 12 The independent evidence, however, established that Dev Genc was crushed in 1980. The applicant himself did not dispute this evidence and agreed that he had not been involved in any political activity since 1980. The independent evidence also indicated that the Turkish authorities would not have any adverse interest in a person merely because he or she was involved in left-wing activities in the late 1970s or early 1980s. The RRT accordingly did not accept that the Turkish authorities had any current interest in the applicant by reason of his former political activities. 13 The RRT accepted the applicant's claim that he had been detained on his wedding day in 1985. However, this had occurred because of the fireworks apparently being mistaken for gunfire and it was not unreasonable for the police to investigate the matter and detain the applicant for a short period. The RRT was of the view that the applicant had been detained because the authorities were investigating a possible criminal offence. The RRT was not satisfied that the police had detained the applicant for a Convention reason. 14 The RRT rejected the applicant's claims that he had been detained upon his return to Turkey from Italy in 1987. The RRT considered it implausible that the police would arrest the applicant some seven years after he ceased involvement in any political activity. In any event, even if the applicant had been arrested in 1987, the evidence showed that he had been in and out of Turkey on scores of occasions since that time. He had never subsequently been arrested on entry into Turkey. This strongly suggested that he was of no current interest to the Turkish authorities. 15 The RRT then rejected the applicant's claims that he had been arrested in 1996 when meeting with friends to set up an Alevi organisation. The independent evidence suggested that the Turkish military would not have had any problem with a group of Alevis meeting together to discuss forming an association. The applicant's evidence in relation to this incident was said to be "confused, internally inconsistent and implausible". The RRT concluded that the applicant had fabricated this claim in order to give himself the profile of a refugee. 16 The RRT also rejected the applicant's claim that the police had been sending messages to his house since 1987 to tell him to go to the police station. It said that this claim was "utterly fanciful". If the police had wanted to see the applicant at any time from 1987 onwards, they had had ample opportunity to find him at his home in Giresun themselves. 17 The RRT rejected the applicant's claim that he had run away from the police in September 1998. Given that the applicant had not been involved in any political activities for many years, it was implausible that the Turkish authorities would wish to arrest him for that reason. Once again, the RRT considered that the applicant had fabricated the evidence in order to give himself the profile of a refugee. Finally, as the RRT did not accept that the police had been looking for the applicant, it did not accept that he had been told by his wife that the police were looking for him. 18 The RRT summarised its findings this way: "Overall I accept that [the applicant] is an Alevi, but I am not satisfied that there is a real chance he will be persecuted for this reason if he returns to Turkey. I accept that [the applicant] was involved in left-wing political activities in Turkey in the late 1970s and that he was subjected to persecution in relation to these activities. However, as [the applicant] has not been involved in any political activity since 1980, I am not satisfied that he is currently of interest to the Turkish authorities for reasons of his political opinion. I am therefore not satisfied that [the applicant] has a well-founded fear of persecution by reason of his political opinion. I am not satisfied that there is a real chance that [the applicant] faces persecution because he has applied for refugee status in Australia." 19 For these reasons the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention.

Reasoning 20 The application for review was filed in this Court on 8 October 1999. It specified no grounds, merely stating that details would be provided at a later date. 21 At a directions hearing on 25 October 1999 at which the applicant was present, he was directed to file and serve an amended application and any affidavits on which he intended to rely by 3 December 1999. No amended application was filed, nor were any affidavits filed. The applicant was also directed to file and serve written submissions by 13 December 1999, for a hearing set down for today, 17 December 1999. The applicant did not file any written submissions. 22 The applicant has informed the Court that he sought legal representation, but it was only shortly before the hearing that he realised that no representation would be available to him. 23 The applicant today has submitted that the RRT was incorrect in certain of its factual findings. He says that he is still at risk in Turkey by reason of his left-wing beliefs and affiliation. These are, however, matters of fact upon which the RRT has made findings. The role of this Court is limited to determining whether there is any ground for review of the RRT's decision on the limited bases set down in s 476 of the Migration Act. It is not the function of this Court to determine whether the RRT was or was not correct in making the factual findings it did. 24 It follows that no ground has been shown for this Court setting aside the decision of the RRT. While I can understand and sympathise with the applicant's desire to remain in Australia, the Court can only act in accordance with the limitations imposed by Australian law. Accordingly the application must be dismissed, with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Solicitor for the Respondent: Australian Government Solicitor

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