FEDERAL COURT OF AUSTRALIA

SYBB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 253

SYBB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

SAD 88 of 2005

BRANSON, MANSFIELD & LANDER JJ

8 DECEMBER 2005

ADELAIDE

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

1                     This appeal is an appeal from a decision of Finn J given on 26 April 2005.  His Honour dismissed an application for the issue of constitutional writs in respect of a decision of the Refugee Review Tribunal (the Tribunal) given on 30 December 2004.

2                     The Tribunal had affirmed a decision of a delegate of the respondent of 3 November 2004 not to grant to the appellant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 15 July 2004.

BACKGROUND

3                     The appellant is a citizen of Turkey of Laz Ethnicity and a Sunni Muslim. He left Turkey on 29 January 2004 as a member of the crew of a ship.  The appellant disembarked from the ship on 28 June 2004 at Gove in Australia and did not return to it.  He claims that he was obliged to enter into an employment bond prior to joining the crew of the ship which, as a consequence of leaving the ship in Australia and breaking his contract, he would now have to pay.  The appellant further claims he will not have the funds to pay the bond if he returns and he fears being beaten by Turkish mafia connected with his employer.

4                     The appellant also complains that because of his Laz ethnicity he had encountered discrimination in Turkey.  He referred to being discriminated in the workplace, both working as a mechanic in Turkey and on the ship, as a consequence of being Laz.  He says he was made to work longer hours and given the ‘dirty jobs’.  He has also referred to two incidents in which he claims to have been physically assaulted because of his ethnicity. The first was when he was a student. The second took place in Kadikoy, Turkey, in 2002 in which he was threatened and beaten by the ulkucu, a group of Turkish nationalists, as he had congregated with people both of Laz ethnicity and Armenian ethnicity.

5                     Lastly, the appellant complains that he was unable to freely express his religious and political views, and that because he does not agree with the policies of Kemal Ataturk he can not live his life freely in Turkey.

THE TRIBUNAL’S REASONS

6                     The Tribunal set out in detail the appellant’s claims and the evidence. It referred to the departmental file which included the original protection visa application, the delegate’s decision record, the material referred to in the delegate’s decision and the record of interview for the appellant’s bridging visa application.  The Tribunal referred also to oral evidence of the appellant given to the Tribunal on 23 December 2004.  Finally, it referred at some length to independent country information, including the most recent (at that time) US State Department Country Report on Human Rights released by the Bureau of Democracy, Human Rights, and Labor dated 25 February 2004, the US State Department Country Report on International Religious Freedom in Turkey dated 15 September 2004 and various DFAT Country Information Reports on Turkey.  It is not suggested that the Tribunal misunderstood the appellant’s claims in any way.

7                     The Tribunal then turned to its ‘Findings and Reasons’. 

8                     It accepted that the appellant had suffered some acts of petty discrimination while at school and in the workforce by reason of his ethnicity.  It did not accept that his ethnicity was a significant reason for the poor conditions of which he complained whilst a crew member of the ship because the other person with whom he had jumped ship suffered the same conditions but did not share his ethnicity.  The Tribunal accepted that in 2002 the ulkucu Turkish nationalists had attacked a café in Kadikoy where Armenians and Laz, including the appellant, were meeting.  However it was satisfied that the police authorities acted appropriately in response to that attack and had tried to provide protection to the victims. The Tribunal also noted that the appellant did not claim to have been seriously injured in that incident, or in the earlier incident involving the ulkucu which occurred when he was a student some eight years earlier.  On that basis, the Tribunal was not satisfied that either of the incidents constituted serious harm to the appellant in the past.

9                     The Tribunal found that the appellant had not been denied any of the basic rights available to Turkish citizens, nor education, nor employment due to his Laz ethnicity.  It also found that he had never been harassed or harmed by police or other security forces because of his race.  The Tribunal also found that the appellant’s failure to avail himself of opportunities to seek protection in other countries prior to his arrival in Australia flew in the face of a genuine belief of risk of harm.

10                  The Tribunal was not satisfied that the racially-motivated discrimination the appellant faced and the two incidents involving the ulkucu nationalists constituted ‘serious harm’.  On that basis, the Tribunal rejected the appellant’s claim that he had been persecuted for a Convention reason before leaving Turkey.  It then found that the chance of the appellant facing treatment amounting to persecution for any Convention reason (including his ethnicity) if he returns to Turkey is remote.  Of course, that was not the end of the Tribunal’s consideration.  It had to address whether he might face persecution by reason of his ethnicity if he were to return to Turkey.  It did address that question.  In the light of its reasoning, it is clear that it was not satisfied he had a well-founded fear of persecution by reason of his ethnicity.  That was a finding of fact available to it.  That conclusion was reached principally because the applicant would not face adverse conduct by reason of his Laz ethnicity of sufficient gravity to constitute serious harm as described in s 91R of the Act.  It is also apparent, as appears below, that the Tribunal was satisfied that the Turkish authorities would not themselves discriminate against him by reason of his ethnicity, and there was no suggestion that the Turkish authorities did not provide a reasonably effective and impartial police force:  see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 494-496, [26]-[28].

11                  The Tribunal accepted the appellant’s claim that he might suffer harm as a consequence of the imposition of the employment bond by his former employer, by being threatened or harmed by Turkish mafia working on behalf of his former employer, as he may now owe a substantial amount of money as a consequence of deserting the ship.  It was not satisfied, however, that by the appellant being required to repay the bond or being exposed to that risk, he might suffer discrimination based on his race or for any other Convention reason.  Moreover, the Tribunal did not accept that the Turkish authorities in any way would condone any improper action by the mafia, or would do so for a Convention reason.  It found the applicant had never been harassed or harmed by the Turkish authorities by reason of his race, and it accepted that in fact Laz people are not discriminated against by the authorities nor subject to undue official pressure.

12                  The Tribunal lastly considered the appellant’s claims relating to an inability to express his religious and political views on account of his Laz ethnicity.  It found these claims were expressed by the appellant to the Tribunal in such vague terms that it was not credible that he had any strong views about religion or politics.  The Tribunal did not accept that he had any views that could not be expressed freely in Turkey.

13                  Its conclusion was that any chance that the appellant might face persecution for a Convention reason was remote and any fear of persecution for a Convention reason not well-founded.  That conclusion indicates that the Tribunal correctly addressed the issue required to be addressed by s 36(2) of the Act.

THE JUDGMENT AT FIRST INSTANCE

14                  The learned judge at first instance dismissed the application because there was no ground for concluding that the Tribunal had committed jurisdictional error in its decision.  The application before the Court did not assert that any jurisdictional error had been made. It simply asserted that ‘the RRT has ignored my claims regarding my fear of persecution which is well founded’. The affidavit filed in support only repeated the claims which were made by the appellant before the Tribunal.   At the hearing, the appellant apparently merely repeated his factual claims as put before the Tribunal. 

15                  His Honour considered that the Tribunal’s findings of fact which the appellant sought to challenge were reasonably open to it and, applying Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611 (Eshutu) at [40],  declined to consider the merits of those factual findings as it is not open to the Court to do so.

16                  His Honour further found:

‘Given the claims made by the applicant, it is unsurprising that the Tribunal concluded that such discrimination as he may have experienced was not sufficiently serious to amount to persecution: see s 91R of the Migration Act 1958 (Cth). In any event, whether discrimination is sufficiently serious in a given case to amount to persecution is a question of fact and degree for the Tribunal: cf VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212 at [28].’

CONSIDERATION

17                  The Notice of Appeal filed by the appellant does not assert any error made by the Tribunal which is jurisdictional in nature.  Nor has he identified one in the course of his submissions.  The Court itself read the reasons for decision of the Tribunal and has been unable to identify any such error.

18                  The appellant once again, as he did before the learned judge at first instance, has sought to challenge the factual findings of the Tribunal.  The Court cannot review the merits of an administrative decision: Eshutu at [40]. 

19                  In our judgment, the learned judge at first instance was clearly correct to deal with the application as he did.  The appellant’s contentions do not demonstrate jurisdictional error on the part of the Tribunal.

20                  The appeal should be dismissed.  The appellant should to pay the respondent her costs of the appeal.

Associate:

Dated:              2 December 2005