REASONS FOR JUDGMENT

the court:

1                     The appellant appeals from a judgment of the Federal Magistrates Court of Australia.  That judgment dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 29 June 2007.  The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.  The judgment of the Federal Magistrates Court was delivered on 22 December 2008.  The appellant filed a notice of appeal on 21 January 2009.  The appeal was listed for hearing by a Full Court of the Federal Court in August 2009 but was adjourned at the request of the parties pending the decision of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

2                     We are of the view that the appeal should be dismissed for the reasons that follow.

background

3                     The appellant is a citizen of Turkey who arrived in Australia on 2 November 2006.  The appellant was travelling on a Business (Short Stay) visa issued to him as an intending participant in the 2006 Kyokushin Karate World Cup that was to be held in Sydney on 4 and 5 November 2006. 

4                     The appellant’s application for this visa was supported by a letter dated 4 October 2006 from the Chairman of the Australian Kyokushin Karate Association (who was also identified in the letter as the Vice President – International Karate Organisation Kyokushin Kaikan) to the Australian Embassy in Istanbul, Turkey, which stated in part:

The International Kyokushin Karate Organisation has been running the World Karate Championships since 1975 and is very proud of its great record in conducting this very successful event in Japan and throughout the world.  Those who are invited to participate in this event are at an elite level and are long time members of our Organisation and are well known to us.  The Australian Organisation has been very responsible in scrutinizing all applications to participate and has a good record in regard to the legitimacy of those invited to attend from overseas countries.  We are very careful in selection of teams and are confident about those competitors invited to participate in our event.  Kyokushin practitioners throughout the world number over ten million and are both responsible and loyal to our organisation.

5                     The letter went on to stress that the Kyokushin Karate Organisation was a responsible and hard-working member of the Australian and international community and showed the utmost responsibility in its selection process.  The authenticity of this letter is not disputed.  It identified the Turkish contingent to the 2006 Kyokushin Karate World Cup as comprising the Turkish Branch Chief of the Kyokushinkai Karate Organisation, a coach and two competitors.  The two competitors were the appellant and a person later identified as the appellant’s cousin. The appellant’s application was also supported by documentation such as a diploma and member’s card from the International Kyokushin Karate organisation bearing the appellant’s name and photograph.  As events turned out, the appellant subsequently denied any involvement in karate, or being a karate player, let alone an elite player, in the circumstances described below.

6                     On 1 December 2006 the appellant lodged his application for a protection visa with the Department of Immigration and Citizenship. 

7                     In his application the appellant stated that he had left Turkey because he had been persecuted “for protesting for my rights as a worker and unionist and as a Kurd and Alevi and for protesting for the rights of other workers, Kurds and Alevis”.  He stated that he feared that if he were to return to Turkey he would be “arbitrarily imprisoned or murdered” and that he considered that he would be harmed by “the Turkish Government through authorities, the police, undercover police”.  He stated that the reason why he had left Turkey was because he had been detained and tortured on several occasions by the Turkish police. 

8                     In a statutory declaration which he had provided in support of his application, the appellant gave an account of his early childhood; of ransackings when he was a child, by the military, of his home in Tercan, Erzincan in East Turkey; of his family’s move to Istanbul for fear of attacks by the military who were targeting Kurdish villages; and of his non-revelation while at school in Istanbul that he was a Kurd and an Alevi.  He gave an account of his participation as an adult (while working in textile factories and later at constructions sites) in protests and demonstrations in support of political, union and Alevi causes; of his detention on three occasions in 1995, 1996 and 1998 by police because of his participation in protests and demonstrations; and of torture, beatings and interrogation by the police while he was in detention.  He also gave an account of his military service and experiences as a soldier, and of his difficulties in subsequently resuming employment as a textile worker (after having worked for some years on construction sites with his father), which he attributed to his previous union activity as a textile worker.  He gave an account of an attack on his father in 1998 by police, who had been looking for the appellant shortly after his release from detention in that year.

9                     In his declaration the appellant said that he attended another demonstration in December 2000 following the killing of inmates in several Turkish prisons.  He said that he subsequently attended other demonstrations (such as all the May Day demonstrations) without his family’s knowledge.  He said that he was not as heavily involved in these demonstrations as he had been in the past, and that he did not have direct contact with the police or any run-ins with the police until 2006. 

10                  In his declaration the appellant said that on 1 May 2006 he left home to participate in a Labour Day demonstration but was intercepted by plain clothes police on his way.  He said that he was detained for several hours and then taken in handcuffs by police to his home (which he still shared with his parents) where a search was performed.  He said that he was then taken back to the police station where he was detained for four days, tortured and interrogated.  The appellant said that when he was released he did not return home but, for the next six months, stayed at friends’ places, visiting his parents after dark for short periods.   He said that he sent a friend to a coffee shop to see his (the appellant’s) father.  The friend was told that the appellant’s father wanted to send the appellant overseas and that his father extended his passport and, through a friend, obtained a visa for the appellant.  The appellant’s friend brought the passport to the appellant.  The appellant was told that he was leaving in two days.

11                  In his declaration the appellant also referred to a document from an Istanbul Court which his parents had received about a week after he had left Turkey. The document comprises three pages and purports to be a warrant for the appellant’s arrest under various provisions of the Criminal Procedures Act of the Turkish Penal Code for being a member of an illegal organisation (namely, the TKPML (Turkish Communist Party Marxist/Leninist)), and an indictment for his trial on that charge by the Istanbul Criminal Court. It should be noted at the outset that the appellant denies that he has ever been a member of the TKPML, which appears to be an offshoot or faction of the TKP.  He relied however on the warrant and indictment as evidence that he was wanted by the authorities in Turkey and that certain political beliefs had been imputed to him. The authenticity of this document as one directed to the appellant assumed some importance in the decision under review. The Tribunal’s consideration of that question was a focal point for many of the submissions made by the appellant in this Court.

THE DELEGATE’S DECISION

12                  The delegate noted that the appellant arrived in Australia with three others to attend the 2006 Kyokushin Karate World Cup in Sydney.  The delegate accepted that the appellant may have experienced discrimination in the past because of his ethnicity.  The delegate also accepted that the appellant may have been mistreated in the past because he attended demonstrations.  However, the delegate did not accept that the appellant would be imprisoned on return to Turkey for those reasons. 

13                  The delegate found that country information indicated that blank arrest warrants were easily obtained in Turkey.  The delegate noted, however, that a forensic examination of the warrant and indictment was inconclusive.  

14                  The delegate found the appellant’s account of being picked up, detained, tortured and then released without charge in 2006 to be implausible.  The delegate also found it to be implausible that the appellant would be permitted to leave Turkey if criminal charges against him were likely, given country information that indicated that checks were made at passport issue and departure points. 

15                   The delegate found that the appellant may have a genuine fear of harm but that there was no real chance of persecution occurring.  The delegate concluded that the appellant’s fear of persecution was not well-founded.  In the end result the delegate was not satisfied that the appellant was a person to whom Australia had protection obligations for the grant of a Protection (Class XA) visa and, on 23 February 2007, refused the application. 

THE TRIBUNAL’S DECISION

16                  The appellant applied to the Tribunal on 13 March 2007 for a review of the delegate’s decision. 

17                  By letter dated 11 April 2007, pursuant to s 424A of the Migration Act 1958 (Cth) (the Act), the Tribunal invited the appellant to comment on information in the Tribunal’s possession that would be the reason or part of the reason for deciding that the appellant was not entitled to a protection visa. 

18                  Some of the information related to concerns that the Tribunal had about the authenticity of the arrest warrant and indictment that the appellant had provided in support of his application.  The Tribunal noted that the arrest warrant, apparently, was already in place when the appellant travelled to Australia.  The Tribunal advised the appellant that it may not accept that he was wanted by the Turkish authorities given that he was able to leave the country freely.

19                  Some of the information related to the fact that the appellant had travelled to Australia on a business visa supported by the letter from the Australian Kyokushin Karate Association.  The Tribunal said that this information was relevant because it demonstrated that the appellant was representing Turkey as an elite sportsman and the fact that the appellant was selected to play at an elite level in an internationally recognised sport may demonstrate that the Turkish State was not targeting the appellant due to his Kurdish/Alevi background or due to his support of the labour movement in Turkey.  The Tribunal also said that this information illustrated that the appellant had a high profile in Turkey and that if the authorities wanted to find him they would easily do so.  The Tribunal said that this seemed to contradict the appellant’s claims that he was wanted in Turkey for being an alleged member of the TKPML and that the Tribunal may find that the appellant was not being truthful about having been tortured and harassed in Turkey or that the appellant’s fear of persecution was not well-founded.

20                  Some of the information related to the fact that the coach of the karate team had also sought to remain in Australia.  The Tribunal said that its information suggested that both the appellant and the coach had remained in Australia because they had relatives here and had wanted to stay on for a while.  The Tribunal said that this information was relevant because it may find that the appellant had fabricated his protection visa claims to remain in Australia along with his coach. 

21                  By letter dated 13 April 2007 Victoria Legal Aid made submissions to the Tribunal in relation to the appellant’s application for a protection visa. 

22                  On 16 and 17 April 2007 the appellant appeared before the Tribunal to give evidence and present arguments.  It is plain from the transcript of the hearing that it was only when the Tribunal questioned the appellant about whether his karate coach (who had travelled to Australia with the appellant) could provide information to support the appellant in his application, that the appellant denied knowing the coach, and said that he knew nothing about karate, had not participated in a karate match in Australia, and had never played karate. Up until that time it is plain that the Tribunal was proceeding on the basis that the appellant claimed to be, and was, an elite karate player representing his country as a bona fide competitor in an international tournament of high-standing. 

23                  By letter dated 23 April 2007, pursuant to s 424 of the Act, the Tribunal requested additional information from the appellant, including independent third party information demonstrating the fact of his persecution by the Turkish authorities because of his involvement in the labour movement and the TKP; independent third party evidence that his parents were harassed by police looking for the appellant prior to his arrival in Australia in November 2006; independent third party information concerning how the appellant’s father had organised the appellant’s travel to Australia (given that the Tribunal had information that suggested that the appellant travelled to Australia to play in the international karate tournament); independent third party information concerning how the appellant’s father was able to ensure that the appellant was able to leave the Turkish immigration zone without detection (given that the alleged arrest warrant was already in place in September 2006 before the appellant’s departure to Australia); and a statement from his cousin confirming the circumstances of the appellant’s alleged detention in Turkey and confirming that the appellant’s father was able to organise false travel documents for the appellant.

24                  By letters dated 1 May 2007 and 21 May 2007, pursuant to s 424A of the Act, the Tribunal invited the appellant to comment on further information that would be the reason or part of the reason for affirming the decision under review.  In the second of these letters the Tribunal advised the appellant that it had sought information concerning the authenticity of the arrest warrant and indictment and had received information that the proceedings identified by the number shown on the indictment did not relate to the appellant but to two others who were under arrest in Turkey in relation to activities concerning the PKK terrorist organisation.  The Tribunal informed the appellant that as he did not appear to be the subject of the relevant indictment, this may demonstrate that the arrest warrant and indictment were not authentic documents and that the Tribunal may consider that the appellant had provided false documents which did not sustain his claims that he was wanted by the Turkish authorities in relation to charges relating to the TKPML.

25                  By letter dated 25 June 2007, Victoria Legal Aid provided, amongst other things, information and comments in relation to the Tribunal’s letters dated 11 April, 23 April, 1 May and 21 May 2007. 

26                  On 10 July 2007 the Tribunal published its decision record.  In its decision record the Tribunal noted the appellant’s claims that he had suffered persecution at the hands of Turkish police because of his religious beliefs as a Kurdish Alevi and because of his imputed and actual political opinion arising from his involvement in the trade union movement in Turkey and his association with the TKP.  The Tribunal noted the appellant’s claims to have been arrested and detained by the police in Turkey and tortured during his periods of detention.  The details of these claims were set out extensively in the decision record.  The Tribunal noted the appellant’s claims that his mother and father had been harassed by the Turkish authorities while looking for the appellant; that he was required to hide his Kurdish Alevi identity, and that his family had been forced to relocate.  The Tribunal also noted the appellant’s claim to membership of a particular social group (as a union organiser) that was said by the appellant to provide an additional, relevant Convention nexus.  Finally, the Tribunal noted the appellant’s claim that he had lost his job in the textile industry as a result of his involvement in the union movement and the TKP, and because of his leftist beliefs.

27                  However, the Tribunal also noted that it had serious concerns about the appellant’s credibility, for several reasons.  These concerns reflected on a range of matters relating to the appellant’s claimed union participation, his claimed political sympathies and how the appellant claimed to have come to Australia.  It will be necessary to say something further about some aspects of the Tribunal’s findings and reasons in this regard.  It is sufficient to note for present purposes that these concerns ultimately led the Tribunal to conclude that it did not accept that the appellant was ever arrested by the police or detained and persecuted whilst in detention.  Similarly the Tribunal did not accept that the appellant’s parents were harmed as a result of his claimed union activities.  On the basis of the evidence before it, the Tribunal recorded that it did not accept that:

·                    the appellant played a part in union activities at his workplace as a textile worker in Turkey;

·                    the appellant lost his job for taking part in union activities;

·                    the appellant sympathised with the TKP and leftist organisations;

·                    the appellant attended demonstrations at which he was arrested;

·                    during his detention the appellant was beaten and threatened because of his union links and his links to the TKP;

·                    the appellant’s parents were harassed by the Turkish authorities due to his involvement with the union and the TKP; and

·                    the appellant had a genuine fear of persecution on his return to Turkey.

28                  In the course of dealing with the material before it relating to how the appellant claimed to have come to Australia, the Tribunal expressed its view that there were serious contradictions in the appellant’s testimony and that the appellant “was not being transparent about how he got to Australia and why”. 

29                  The Tribunal did accept that the appellant was an Alevi and that his ethnic background was Kurdish.  In the end result, however, the Tribunal found that it was improbable that the appellant experienced difficulty due to his Alevi Kurdish background and that he and his family were persecuted on the basis of their religion and ethnic background.

30                  In the course of its decision the Tribunal turned to consider the consequences for the appellant if he were to return to Turkey and be open about his Alevi and Kurdish background now or in the reasonably foreseeable future.  In this connection the Tribunal took into account the possible consequences of the appellant’s claimed union affiliations and leftist sympathies.  The Tribunal found that the appellant would not face a real chance of serious harm on the basis of his Kurdish Alevi ethnicity and religion if he were to return to Turkey.  It also found that there was limited evidence to suggest that the appellant would be persecuted on the basis of his claimed union affiliation or leftist sympathies.  In the end result, however, the Tribunal did not accept that the appellant was a sympathiser with the union movement or the TKP or other “leftist” organisations.  Thus it did not accept that the appellant would suffer harm because of his alleged association/sympathy for the union movement or the TKP or other “leftist” organisations.

31                  The Tribunal concluded that it was not satisfied that the appellant had a real chance of facing persecution for a Convention reason if he were to return to Turkey and that, accordingly, he did not have a well-founded fear of persecution.  It concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugee Convention.  It therefore affirmed the decision not to grant the appellant a Protection (Class XA) visa.

FEDERAL MAGISTRATES COURT

32                  On 6 August 2007 the appellant applied for judicial review of the Tribunal’s decision. 

33                  On 8 February 2008 the appellant filed an amended application in which two grounds were relied upon.  The appellant’s case as then pleaded was that the Tribunal acted without or in excess of jurisdiction in that, firstly, it identified a wrong issue, asked a wrong question, relied on irrelevant material, or ignored relevant material, and, secondly, it failed to comply with the requirements of procedural fairness.

34                  As to the first of these matters, the appellant provided the following particulars:

(a)       The Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds or probative material.

(b)       The Tribunal failed to deal with an essential integer or integers of the applicant’s claims.

(i)         The Tribunal misstated and/or misunderstood the applicant’s claims and evidence concerning the circumstances in which his father had received the arrest warrant …

(ii)        The Tribunal failed to address the applicant’s claimed fear of persecution based on a political opinion that might have been imputed to him by the authorities as a result of his attendance at demonstrations and protests.

(c)       The Tribunal’s decision was based on findings for which there was no evidence.

(i)         There was no evidence to support the Tribunal’s findings that the applicant’s statutory declaration was “at odds with the visa applicant’s claims at hearing” … or that the father’s written testimony dated 10 May 2007 “contradicts the visa applicant’s claims” …

(d)       The Tribunal erred in law by imposing a requirement that the applicant’s evidence would not be accepted unless it was corroborated by independent third party evidence or information.

(e)       The Tribunal erred in law by failing to apply the “real chance” test in determining whether the applicant had a well-founded fear of persecution.

35                  As to the second of these matters, the appellant alleged that the Tribunal’s decision was vitiated by apprehended bias.

36                  The Federal Magistrates Court rejected the application for review, making the following specific findings:

(a)        The Tribunal did not reach a decision based on illogical reasoning that was not supported by facts.

(b)        The Tribunal dealt with every integer of the appellant’s claim.

(c)        The Tribunal did not require corroboration of evidence in an absolute sense in support of any finding of fact.

(d)        The Tribunal appropriately applied the “real chance” test.

(e)        The Tribunal’s decision was not vitiated by bias [i.e. apprehended bias] in the conduct of the application. 

37                  The Federal Magistrates Court dismissed the application with costs.

THE APPEAL TO THIS COURT

38                  On 21 January 2009 the appellant filed a notice of appeal in this Court. 

39                  The grounds in the notice of appeal are extensive and effectively seek to revisit the entirety of the application for judicial review before the Federal Magistrates Court. 

40                  The grounds of appeal are stated as follows:

Irrationality, illogicality, absence of logical grounds and probative material

1.                  The primary judge erred in finding that [the Tribunal] did not act in excess of jurisdiction by reaching a decision based on illogical reasoning and not supported by facts …

2.                  The primary judge should have held that the Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds or probative material.

Particulars

            See paragraph [7] of the reasons for judgment of Burchett FM dated 22 December 2008.

Misunderstanding of evidence

3.                  The primary judge erred in finding that the Tribunal dealt with every integer of the appellant’s claims …

4.                  Having found that the Tribunal had misunderstood the evidence and confused itself in addressing it (paras 37-38) and had made incorrect findings regarding inconsistencies between the evidence of the appellant and his father (para 39), the primary judge should have held that the Tribunal relied on irrelevant material, ignored relevant material, based its decision on findings for which there was no evidence, and/or failed to deal with the appellant’s claims.

Requirement of corroboration by independent third party evidence

5.                  The primary judge erred in finding that the Tribunal did not require corroboration of evidence in an absolute sense in support of any finding of fact …

6.                  The primary judge should have held that the Tribunal erred in law by imposing a requirement that the appellant’s evidence would not be accepted unless it was corroborated by independent third party evidence or information.

‘Real chance’ test

7.                  The primary judge erred in finding that the Tribunal appropriately applied the ‘real chance’ test …

8.                  The primary judge should have held that the Tribunal erred in law by failing to apply the ‘real chance’ test in determining whether the appellant had a well founded fear of persecution, in particular by failing to address the possibilities that the appellant’s account of his travel to Australia was true and that the arrest warrant was valid.

Failure to deal with claims based on imputed political opinion

9.                  The primary judge erred in finding that the Tribunal dealt with all elements of the claim required of it …

10.               The primary judge should have held that the Tribunal failed to address the appellant’s claimed fear of persecution based on a political opinion that might have been imputed to him as a result of his attendance at demonstrations and protests.

Apprehended bias and fair hearing

11.               The primary judge erred in finding that the Tribunal’s [sic] was not vitiated by a reasonable apprehension of bias in the conduct of the application …

12.               The primary judge should have held that the Tribunal failed to comply with the requirements of procedural fairness and/or failed to comply with the requirements of s.425 of the Migration Act 1958, on the basis that:

(i)        there was a reasonable apprehension of bias on the part of the Tribunal;

                                    Particulars

See paragraph [81] of the reasons for judgment of Burchett FM dated 22 December 2008.

(ii)                having regard to the matters set out in this notice of appeal and the conduct of the hearing by the Tribunal, including the standard of interpretation, the appellant was denied a proper opportunity to appear, give evidence and present arguments.

In so far as the ground set out in paragraph 12(ii) above goes beyond the grounds relied on at first instance, the appellant applies for leave to rely on those matters on appeal.

Jurisdictional error

13.               In the light of the above matters, the primary judge should have held that the Tribunal acted without or in excess of jurisdiction.

41                  At the hearing of the appeal the appellant did not press ground 12 as particularised by sub-paragraph (ii) of the particulars sub-joined to that paragraph.

consideration

Grounds 1 and 2: irrationality, illogicality, absence of logical grounds and probative material

42                  It is not in doubt that a decision made by the Tribunal may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 67 [36]-[37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 20 [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [130]-[139].

43                  This basis for the finding of jurisdictional error was most recently considered by the High Court in SZMDS.  In that case, the High Court (Heydon, Crennan and Bell JJ, Gummow ACJ and Kiefel J dissenting) allowed an appeal from this Court which had set aside a decision of the Tribunal on the basis that it was illogical or irrational.  Heydon J concluded that the Tribunal’s reasoning was not illogical.  Crennan and Bell JJ, in a joint judgment, held (at [135]) that, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal.  On that basis their Honours held that the appeal should be allowed, although accepting (at [132]) that illogically or irrationality may constitute a basis for judicial review in the context of jurisdictional fact-finding.  The essence of their Honours’ reasoning was that a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker.  In this discourse the differences between the separate notions of “logical” reasoning and “rational” reasoning, and the constraints that each separately might impose on jurisdictional fact-finding, were not discussed by their Honours.

44                  Gummow ACJ and Kiefel J, in a joint judgment, held (at [53]) that the Tribunal had made a critical finding by inference that was not supported on logical grounds.  On that basis their Honours held (at [54]) that the Tribunal’s decision should be quashed.  The essence of their Honours’ reasoning was that jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, without more.

45                  There is an evident difference in approach in the respective joint judgments with respect to the consequences that attend the reasoning of a decision-maker that is found to be “illogical” or “irrational”.  Given this difference it is desirable to consider at the outset whether the Tribunal’s decision in the present case was affected by irrationality or illogicality in the precise way in which the appellant contends it to have been.  It is only if the Tribunal’s decision was so affected that it becomes necessary to consider further the difference between the two approaches in SZMDS and the consequences that those approaches may have in the present case. The Federal Magistrates Court held that the Tribunal did not reach a decision based on illogical reasoning unsupported by facts. The initial question is whether the Federal Magistrates Court erred in so finding. 

46                  The appellant’s submissions to this Court in relation to these grounds of appeal proceeded as follows.

47                  First, the appellant submitted that at the heart of the Tribunal’s reasoning was a conclusion that the arrest warrant was not genuine.  The appellant submitted that, in reaching that conclusion, the Tribunal placed weight on the appellant’s account of obtaining false documents to travel to Australia whereas, elsewhere in its reasons, the Tribunal had not accepted that account.  The appellant submitted that it was illogical to use evidence that was disbelieved as a premise to undermine other aspects of the appellant’s evidence. 

48                  Secondly, the appellant submitted that the Tribunal’s finding that the appellant “had not been transparent about how he got to Australia and why” was based on a finding that the arrest warrant was not genuine.  However, according to the appellant’s submission, the latter finding was itself based on the premise that the appellant had come to Australia on false documents.  The appellant submitted that, in this respect, the Tribunal’s reasoning was circular and internally inconsistent.

49                  Thirdly, the appellant submitted that the Tribunal’s rejection of the appellant’s claims of past persecution followed from a finding that he had not been transparent about how he came to Australia.  However, when addressing the possibility that the appellant had been transparent about how he came to Australia (that is, that the appellant was not a karate player and had travelled to Australia on false documents), the appellant submitted that the Tribunal failed to reconsider the appellant’s claims of past persecution in the light of that assumption.

50                  Fourthly, and more generally, the appellant submitted that a finding that the arrest warrant was not genuine did not provide any basis for any adverse credibility finding, particularly given that there was no evidence that the appellant himself had been involved in obtaining the arrest warrant.  The appellant submitted that it does not follow from a finding that the arrest warrant was not genuine that the appellant had never been arrested, detained or persecuted as he had claimed.

51                  The appellant submitted that, as a result of these matters, the Tribunal adopted an undue and inappropriate focus on the manner in which the appellant had left Turkey and the authenticity of the arrest warrant.  The appellant submitted that the Tribunal did not give any detailed consideration to his claims about the protests and demonstrations leading to his arrest and mistreatment.  The appellant also submitted that the Tribunal’s credibility findings were reliant on, and were infected by, illogical reasoning and findings.

52                  It can be seen from the foregoing that these submissions overlap other grounds of appeal and comprise a number of strands.  The main strand relates to the Tribunal’s findings with respect to the genuineness or otherwise of the arrest warrant.  In order to deal with these submissions it is necessary to say something about the Tribunal’s findings and conclusions in general and then to pay close attention to precisely what the Tribunal did find and conclude about the search warrant. 

53                  First, at the outset, the Tribunal did not accept that the appellant had ever associated with or sympathised with union causes in Turkey.  In this connection the Tribunal made a number of specific findings, including the following: 

(a)           Despite having claimed persecution by the police in Turkey for his association with the union movement, the appellant, when questioned about whether he had actually joined “the union”, said that “he had never got round to it”.

(b)          The appellant spoke only in very general terms about “the union”, never specified which union he sympathised with, and was unable to give details about the head of the union at a textile factory from which the appellant claimed to have been dismissed for engaging in union activities (such as shutting down machinery and engaging in union protests). 

(c)           After initially stating that, at this factory, he confronted management directly about conditions of work as a representative of other workers, he later recanted from that claim after being questioned about the dates or approximate timeframes of this activity.

(d)          Whilst professing to protest for the rights of workers, the appellant did not undertake union activities when working in the construction industry.

(e)           The appellant was not able to provide any meaningful or personal insight into what being a sympathiser with the union movement meant to him other than to say that he was a “leftist” without providing any detail about what being a “leftist” entailed.

(f)             The appellant’s statements in relation to being a “leftist” and a union sympathiser seemed vague and not related to any specific ideology.

54                  The Tribunal concluded by finding as follows: 

The fact that the visa applicant remained at the fringes of the union’s activities appears to be incongruent with his claims that he was targeted for persecution by the authorities due [sic] his claimed involvement with the union movement, and as a consequence the Tribunal does not accept that the visa applicant had ever associated with or sympathized with the causes of the union in Turkey.

55                  Secondly, the Tribunal did not accept that the appellant was ever a sympathiser with the TKP.  In this connection the Tribunal made a number of specific findings, including the following: 

(a)           After stating at the hearing that he had high regard for the paper “Derenis” containing the thoughts of Dr Hikmet Kivilcim (the founder of the TKP), the appellant was unable to state what the paper was about other than “it was a type of journal which was nice to read”.

(b)          The appellant was not a member of the TKP and was not able to provide any further details about communist ideology.

(c)           The appellant repeatedly responded to direct questions about this matter in a general and vague manner.

(d)          The appellant’s responses to questions about how his communist consciousness came to be formed were vague. 

56                  A number of things emerge from the Tribunal’s adverse findings and conclusions with respect to the appellant’s claimed union and political sympathies.  First, those findings and conclusions constituted a significant part of the Tribunal’s stated “several reasons” for the overarching finding that the Tribunal had “serious concerns” about the appellant’s credibility.  Secondly, those findings and conclusions were based principally on the Tribunal’s assessment of the sufficiency and plausibility of the answers given by the appellant to the Tribunal’s questions at the hearing.  Thirdly, those findings and conclusions were expressed independently of and before the Tribunal’s findings with respect to the issue of how the appellant came to Australia. 

57                  When turning to the issue of how the appellant came to Australia the Tribunal stated that there were serious contradictions in the appellant’s testimony.  The Tribunal noted that the appellant had initially applied for a short stay business visa to enable him to participate in the 2006 Kyokushin Karate World Cup in which he was listed as a participant.  However, at the hearing, the appellant claimed that he was not a karate player, that he had never played karate and that he only participated in the opening and closing events of the 2006 Kyokushin Karate World Cup tournament.

58                    The Tribunal also stated that it had “many unanswered questions” about the appellant’s documentation to travel to Australia as an alleged karate player.  The Tribunal noted that when he was asked about the other persons who appeared to be part of the Turkish team, the appellant became visibly nervous and defensive.  In this context, the appellant said that his cousin (the other identified competing karate player) would not know anything about his claims of persecution in Turkey, although it seems that subsequently the appellant’s cousin supplied a statement to the Tribunal in which he spoke of his personal knowledge of the appellant randomly being taken into custody and tortured by police.  The Tribunal understandably described this statement as “problematic” in light of the evidence that the appellant had given of his cousin’s lack of knowledge of these things as a reason for not wishing to involve his cousin in the Tribunal’s deliberations.  The Tribunal noted that when asked whether he knew anything about the coach of the team, the appellant responded that he had sat next to him on the plane but did not know anything about him.  The Tribunal noted that on being further questioned about his interaction with the coach whilst on the plane, the appellant became visibly agitated.  The Tribunal concluded that, by his answer, the appellant failed to deal with that question in a realistic manner and that the appellant was not being truthful about his relationship with the coach. 

59                  The Tribunal stated that it had not been able to locate information that would either confirm or disprove that the appellant was a karate player of international standing who was selected to represent his country.  It noted the letter from the Chairman of the Australian Kyokushin Karate Association “vouching for the responsible nature of those participating in the event in Sydney” but recorded its inability to obtain information such as video footage of the tournament to verify whether the appellant had actually participated. 

60                  It was in the context of dealing with how the appellant came to Australia that the Tribunal expressed its concern about the authenticity of the arrest warrant and indictment.  As noted above, until the hearing conducted by the Tribunal on 16 and 17 April 2007, it is clear that the Tribunal had been proceeding on the basis that the appellant was a karate player who had come to Australia as a bona fide member of a Turkish sports team to compete in the 2006 Kyokushin Karate World Cup.  However the appellant’s denials in this regard, coupled with the claim that his father had paid someone to organise all the papers for the appellant’s travel to Australia, led the Tribunal to query on a number of occasions whether the search warrant and indictment could have been similarly falsified for the purpose of enhancing the appellant’s application for a protection visa.

61                  The Tribunal noted in a number of places in its decision record that the appellant had vehemently denied that the arrest warrant and indictment were false or that his father had anything to do with procuring a false arrest warrant and indictment.  But the Tribunal also noted that the appellant had stated on many occasions that “in Turkey as long as you paid someone you could get anything you wanted”.  The Tribunal’s decision record makes clear that, in the context where the appellant had denied on a number of occasions that the arrest warrant could have been falsified, and where the Department was unable to either confirm or deny that the arrest warrant had been falsified, the Tribunal had carried out further investigations that determined to its satisfaction that, in fact, the arrest warrant had been issued for the arrest of other persons.  These investigations were carried out by the Australian Embassy in Turkey which had established that the reference number quoted on the arrest warrant and indictment related to specific persons who were clearly not the appellant.  The fact that the Tribunal had ascertained that the warrant did not correspond to the appellant but had been issued for the arrest of other persons led the Tribunal to state that the appellant’s credibility had been weakened considerably and to state that this fact confirmed its “finding that the appellant was not being transparent about how he got to Australia and why”. 

62                  The following matters emerge from this part of the Tribunal’s reasons.  First, having found what it described as “serious contradictions” in the appellant’s testimony about how he came to Australia, the Tribunal was nevertheless left in a state of “having many unanswered questions”.  The Tribunal did not express itself as having attained a state of satisfaction, one way or the other, that the appellant’s documentation supporting his travel to Australia had been falsified (as the appellant had contended before the Tribunal) or had been issued on the genuine basis at the time that the appellant was an elite karate player who had been chosen to participate in the 2006 Kyokushin Karate World Cup to be held in Sydney. 

63                  Secondly, the Tribunal expressed the firm conclusion that the arrest warrant and indictment on which the appellant had placed reliance was one that did not correspond to the appellant but had been issued for the arrest of other persons.  The Tribunal’s decision record makes plain that the reason for this conclusion was the objective information that the Tribunal had obtained as a result of the further investigations that had been carried out on its behalf in Turkey through the Australian Embassy in that country.  The Federal Magistrates Court seems to have treated this conclusion as leaving the Tribunal in uncertainty as to whether the warrant was genuine.  Certainly the Tribunal did not state in terms that the arrest warrant and indictment were not genuine.  However, it is difficult to see the Tribunal’s conclusion, which the Tribunal itself expressed as a finding, as other than a stated rejection of the genuineness of the search warrant and indictment as documents that had been issued in respect of the appellant.

64                  One further matter should be noted in this regard.  Part of the material forwarded to the Tribunal by Victoria Legal Aid on 25 June 2007 was a statutory declaration made on the same day by the appellant dealing with, amongst other things, the arrest warrant.  In paragraph 37 of that declaration the appellant said:

I did not see the warrant myself as it was provided to my father.  I am aware that when my travel arrangements were made to come to Australia, this was one of the things that my father paid extra money to still enable me to leave the country.  I became aware of this after I had left Turkey. 

65                  The Tribunal construed this statement as meaning that the appellant’s father had paid others to obtain a falsified search warrant.  Proceeding on this basis the Tribunal noted that the appellant’s statement in his statutory declaration was at odds with his claims at the hearing that the arrest warrant was not false and that it was not part of the documentation that his father had paid for to enable him to travel to Australia.  The Tribunal also found that the appellant’s statement in the declaration, as construed by the Tribunal, also contradicted a written statement made by the appellant’s father (also forwarded by Victoria Legal Aid on 25 June 2007) that he (the appellant’s father) was handed the arrest warrant by a “police officer”.

66                  In the context of dealing with another ground of review, the Federal Magistrates Court gave detailed consideration to the evidentiary material before the Tribunal and concluded that the clear import of the appellant’s evidence was that the arrest warrant was genuine and that a bribe had been paid to immigration officials to permit the appellant to depart from Turkey.  The Federal Magistrates Court found that the statement quoted from the statutory declaration was clearly misunderstood by the Tribunal and that the Tribunal’s observations concerning the inconsistencies of accounts in that regard were clearly wrong.

67                  Moreover, the Federal Magistrates Court found that the Tribunal’s decision was not expressed concisely or with precision and that the Tribunal’s manner of expression and the structure of its reasoning supported the contention that the decision was “illogical”.    However, despite what was found to be the prolix and unstructured nature of the Tribunal’s decision, the Federal Magistrates Court did not accede to the submission that the decision was illogical and not supported by facts.

68                  Considerable emphasis was placed by the appellant on this misunderstanding in his submissions to this Court.  However, accepting that the Tribunal erred in its understanding of what the appellant had stated in the quoted passage from his declaration, the Tribunal’s decision record makes plain that the Tribunal’s understanding of that piece of evidence was unrelated to its finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons.  That finding was based solely on the information that the Tribunal had received from the Australian Embassy in Turkey as a result of the investigations that the Tribunal had instigated because, up to that time, in light of the appellant’s claims and the objective evidence then before the Tribunal, it could neither be confirmed nor denied that the arrest warrant was “a falsified one”. 

69                  Having made these observations, it is now possible to give consideration to the appellant’s submissions in this Court.

70                  As to the appellant’s first submission (see [47] above), the Tribunal’s apparent finding that the arrest warrant was not genuine (or more accurately, its finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons) was plainly based on the objective third-party information that the Tribunal had received through the Australian Embassy in Turkey.  It was not based on the appellant’s account of obtaining false documents to travel to Australia.  The Tribunal raised and challenged the appellant with the prospect that the arrest warrant and indictment apparently issued against him may have been falsified as part of a process of obtaining false documents to permit the appellant to travel to Australia.  It was this prospect that provided a reason for the Tribunal to instigate the further investigations that were undertaken on its behalf.  It was, however, the information obtained as a result of those investigations which the Tribunal relied on in making its finding, not the prospect of falsity which was a catalyst for those investigations.  Moreover, the Tribunal made no finding that it either accepted or rejected the appellant’s account of obtaining false documents to travel to Australia.  It went no further than to conclude that it had many unanswered questions about the appellant’s documentation to travel to Australia as an alleged karate player. 

71                  Accordingly, contrary to the appellant’s first submission, there was no illogicality involved in the Tribunal’s finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons. 

72                  As to the appellant’s second submission (see [48] above), the Tribunal’s finding that the appellant “had not been transparent about how he got to Australia and why” was not based on a finding that the arrest warrant was not genuine (or more specifically, a finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons) but on its conclusion that there were serious contradictions in the appellant’s testimony about how he came to Australia and the fact that, for the reasons it gave, the Tribunal had many unanswered questions about the appellant’s documentation to travel to Australia as an alleged karate player. 

73                  Accordingly, contrary to the appellant’s second submission, the Tribunal’s finding that the appellant had not been transparent was not based on reasoning that was circular or internally inconsistent. 

74                  The Tribunal did state that its finding about the arrest warrant confirmed its finding that the appellant was not being transparent.  There is nothing illogical or irrational about that conclusion.  The appellant had relied on the arrest warrant as evidence that he was a person wanted by the authorities in Turkey because of his actual or perceived political views.  However, the finding that the arrest warrant did not correspond to him but had been issued for the arrest of other persons plainly undermined that part of the appellant’s account. 

75                  As to the appellant’s third submission (see [49] above), the Tribunal did not reject the appellant’s claims of past persecution simply because it considered that the appellant had not been “transparent about how he got to Australia and why”.  It is tolerably clear that the Tribunal did not accept that the appellant was ever arrested by the police or detained and persecuted whilst in detention for a number of reasons, including the fact that the Tribunal did not accept that the appellant had ever associated with or sympathised with union causes in Turkey and the fact that the Tribunal did not accept that the appellant was ever a sympathiser with the TKP.  These findings were made in the context of the Tribunal expressing serious concerns about the appellant’s credibility generally.  The appellant’s third submission thus proceeds on a misreading of the Tribunal’s reasons.  Moreover, as explained later in these reasons, after having found that the appellant had not been persecuted as he had claimed, the Tribunal was not bound thereafter to consider the possibility that he might have been persecuted when considering whether the appellant had a well-founded fear of persecution.

76                  As to the appellant’s fourth submission (see [50] above), the significance, once again, of the arrest warrant was that, if genuine, it was evidence that the appellant was wanted by the authorities in Turkey and that certain political beliefs had been imputed to him.  It supported the appellant’s claim to having a well-founded fear of persecution.  However, the finding that the arrest warrant did not correspond to the appellant but had been issued for the arrest of other persons, removed a significant element in support of the appellant’s claim, as he sought to advance it.  It was the appellant who placed reliance on the existence of the arrest warrant.  By vehemently denying the possibility that the arrest warrant could be, or was, false, the appellant vouched for its genuineness in relation to him.   This was a matter that the Tribunal was entitled to take into account in assessing the appellant’s credibility.  The extent to which it took that matter into account was for the Tribunal to determine as part of its fact-finding task. 

77                  It follows from the foregoing that the appellant’s submissions on these grounds of his appeal should be rejected.  His more general submissions (see [51] above) should also be rejected.  In that connection, the Tribunal’s decision record does not reveal that the Tribunal adopted an undue or inappropriate focus on how and why the appellant travelled to Australia or on the genuineness of the arrest warrant and indictment.  The Tribunal plainly gave consideration to the appellant’s claims about his participation in protests and demonstrations but rejected his account based on its assessment of the sufficiency and plausibility of the material put before the Tribunal by the appellant.

78                  The Federal Magistrates Court was not in error in its ultimate finding that the Tribunal did not reach a decision based on illogical reasoning not supported by facts.  It follows that grounds 1 and 2 of the appeal should be dismissed.  In these circumstances it not necessary to embark upon any further consideration of the difference in approach between the respective joint judgments in SZMDS. 

Grounds 3 and 4: misunderstanding of evidence

79                  These grounds of appeal relate to the construction that the Tribunal placed on paragraph 37 of the appellant’s statutory declaration quoted above.  As discussed above, the Federal Magistrates Court found that the Tribunal had misunderstood that part of the appellant’s evidence.  It rejected a submission that this misunderstanding was motivated by bias or ill will against the appellant.

80                  In this appeal the appellant submitted that this error was the product of a closed mind on the part of the Tribunal – an aspect of its grounds of appeal relating to apprehended bias.

81                  For presently relevant purposes, the appellant also submitted that the Tribunal’s misunderstanding or misdescription of this part of the appellant’s evidence amounted to a failure to consider the claim advanced by the appellant and a failure to take into account relevant material.  The appellant submitted that, for this reason, the Tribunal failed to perform its statutory duty and fell into jurisdictional error.

82                  The essential requirement imposed upon the Tribunal by s 414 of the Act is, in the circumstances there described, to carry out a review of Minister’s decision.  The question that arises in the present appeal is whether the Tribunal’s misunderstanding of paragraph 37 of the appellant’s declaration constitutes or evidences a failure to carry out that function, such as to constitute jurisdictional error.

83                  A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal.  In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims. 

84                  It is plain from the Tribunal’s decision record that the Tribunal was seized of the appellant’s claims that he had a well-founded fear of persecution because of (a) his religious beliefs as a Kurdish Alevi; (b) his actual or an imputed political opinion based on his involvement in the trade union movement in Turkey as well as his association with the TKP; and (c) his membership of a particular social group.

85                  It is equally plain that the Tribunal understood the appellant to be contending that a warrant had been issued for his arrest but that, in part through the bribery of officials, the appellant succeeded in departing from Turkey and travelling to Australia on his own passport.  It is true that the Tribunal misunderstood one part of the evidentiary material before it, which it recognised as conflicting with the version of events for which the appellant was contending.  But, as the Federal Magistrates Court correctly pointed out, other passages of the decision record show that the Tribunal correctly understood the effect of the evidence that the appellant was propounding and asking the Tribunal to accept on this issue.  Moreover, as shown by the Tribunal decision record, the Tribunal appears to have relied on its misunderstanding in only a peripheral way.  It did not obscure the Tribunal’s understanding of the claims being advanced by the appellant or the appellant’s preferred version of the facts that he had advanced in support of those claims.  At most the Tribunal’s misunderstanding of paragraph 37 of the appellant’s declaration amounted to an instance of errant fact-finding on a matter on which, by reference to the information it had received from the Australian Embassy in Turkey, the Tribunal had independently made a decision adverse to the appellant.

86                  The Federal Magistrates Court instructed itself by reference to NABE and HTUN and concluded that, although the Tribunal had made a factual error, that error did not infect the Tribunal’s statutorily imposed duty to examine and deal with all the claims for asylum made by the appellant.  It found that the Tribunal clearly understood the question it had to decide and, although it may have erred on its finding in one matter of fact, the Tribunal did consider the appellant’s claim and all its component integers.  The Federal Magistrates Court was not in error in so finding.  Grounds 3 and 4 of appeal should be dismissed.

Grounds 5 and 6: requirement of corroboration by independent third party evidence

87                  The appellant submitted that the Tribunal impermissibly insisted that the appellant’s claims would not be accepted without corroboration by “independent third party evidence”.  The appellant pointed to various passages in the transcript of the hearing conducted by the Tribunal on 16 and 17 April 2007 and to a letter dated 23 April 2007. The appellant submitted that such an approach was blatantly inconsistent with the Tribunal’s credibility guidelines (Refugee Review Tribunal, “Guidance on the Assessment of Credibility” (October 2006) paras 2.1 and 2.2).  The appellant submitted that the Tribunal’s insistence on corroboration imposed an unreasonably high standard of satisfaction, which failed to take into account the appellant’s written and oral evidence as primary evidence of the claimed events, and involved an error of law amounting to jurisdictional error.

88                  After considering the transcript of the Tribunal hearing, the Federal Magistrates Court noted that, on many occasions, the Tribunal indicated that third party or corroborative evidence was desirable. However the Federal Magistrates Court did not accept that the Tribunal maintained an insistence that the appellant’s evidence required independent corroboration.  The Federal Magistrates Court (at [59] of its reasons) said:

… There were clearly instances where the Tribunal indicated the desirability of independent corroborating evidence.  However in doing so it did not suggest evidence would be rejected in the absence of corroboration.  At best, for the applicant, the matters complained of support the respondent’s contention that the Tribunal embarked upon a critical review of the evidence as it ought to have done. 

89                  Consideration of the transcript references relied upon by the appellant in this Court, read in their surrounding context, does not reveal that the Federal Magistrates Court erred in so finding.  The transcript shows that the Tribunal was troubled by a number of aspects of the appellant’s account.  As its decision record makes clear, the Tribunal considered that some parts of the appellant’s evidence were unhelpfully general in nature.  It also shows that the Tribunal expressed difficulty in accepting aspects of the appellant’s account because the Tribunal considered it to be implausible.

90                  For example, at one point in the transcript the Tribunal said:  “I’m trying to give you that understanding but you have to understand that to establish that you’re a refugee is a very serious and difficult thing to do and that’s why I need third-party independent evidence.”  Taken in isolation this statement might suggest that the Tribunal proceeded on the basis that, as a matter of legal standard, the appellant’s evidence was required to be corroborated.  However, the statement was made in the context of the Tribunal seeking to elicit from the appellant information as to his association with the TKP.  The decision record shows the Tribunal considered this part of the appellant’s account to be vague.  It also shows that the Tribunal had concerns about the veracity of this part of the appellant’s account given his evidence that he was not a member of the TKP but merely a “sympathiser”. Properly understood in its context, the Tribunal’s statement conveys no more than an expressed desire to be furnished with independent information to support an aspect of the appellant’s account that, on present material, the Tribunal found to be unconvincing.  A consideration of the transcript as a whole, and the decision record, shows that the Tribunal did not proceed on the basis that, as a matter of legal standard, the appellant’s evidence was required to be corroborated.  Rather, it is apparent that the Tribunal was seeking to encourage the appellant to put his case in the best possible light by alerting him to aspects of the evidence which were apt to arouse scepticism so as to afford the appellant the opportunity to allay that scepticism.

91                  Although in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 at 485 Hill J cautioned in emphatic terms that the Tribunal must not approach its task of merits review on the basis that it will not accept an applicant for refugee status unless there is some independent corroboration, it is to be borne in mind that the character of the inquiry it undertakes in conducting its review is inquisitorial: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39;(2009) 259 ALR 429 at [18].  In Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 Finkelstein J referred to the function of the Tribunal to make determinations of fact based on the evidence that is before it.  His Honour said in this context:

This must admit of the possibility that the Tribunal will not accept the accuracy of certain “facts” unless they are corroborated in some way.  The acceptance or rejection of “facts” is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated.  Some “facts” may be so implausible that they should not be accepted.  An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source.  If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law.  On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.

92                  Those observations are apposite to the present case.

93                  Grounds 5 and 6 of the appeal should be dismissed.

Grounds 7 and 8:  “real chance” test

94                  The requirement that a fear of persecution be “well-founded” adds an objective element to the requirement that an applicant actually have a fear of persecution.  In order to demonstrate a well-founded fear of persecution it is sufficient that there is a “real chance” that the applicant might be persecuted for a Convention reason:  Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  This requires a decision-maker to engage in a degree of speculation about future events.  The fact of past persecution is relevant to the determination of possible future persecution.  

95                  In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision-making in migration cases.  His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution.  His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:

(a)        There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur.  This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.

(b)       In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence.  Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.

(c)        Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.

(d)       There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.

(e)        Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to “impute” to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well-founded.  To do so would be to engage in merits review. 

(f)        In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal’s own reasons.  If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

96                  As to the last of these principles, his Honour said (at [67]):

… Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal’s] own findings to be pursued.  A “fair reading” of the reasons incorporates the principle that the [Tribunal’s] reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287.  Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution.

97                  The Tribunal identified in its decision record that an applicant’s fear of persecution for a Convention reason must be “well-founded” and that a person will have a well-founded fear of persecution if they have a genuine fear founded upon a “real chance” of persecution for a Convention-stipulated reason.

98                  In the present case the Tribunal stated in its decision record that it did not accept that the appellant had any basis for claims of past persecution because of his religion, race, imputed or actual political opinion or membership of a social group.  Nevertheless it proceeded to consider the consequences for the appellant were he to return to Turkey in the reasonably foreseeable future and be open about his Alevi and Kurdish background. In undertaking this task the Tribunal recognised that the appellant had advanced a tripartite aspect to his claims which the appellant had argued made his case compelling: he was an Alevi Kurd with leftist sympathies.  Significantly the Tribunal expressed itself as proceeding on the counterfactual basis that the appellant did travel to Australia on false documents and that he was not a karate player.

99                  Three things should be noted about this approach.  First, it is clear that the Tribunal was in no real doubt that past persecution, as claimed by the appellant, had not taken place.  It follows that the Tribunal was not required to consider the appellant’s claims of past persecution when considering the “real chance” test.  Secondly, consistently with its stated position that it had “many unanswered questions about [the appellant’s] documentation to travel to Australia as an alleged karate player”, the Tribunal acted on the possibility that the appellant’s claims in this regard were as he had represented them to be.  Thirdly, in considering a “real chance” of persecution, it gave due recognition to the scope of the Convention nexus on which the appellant relied by considering his chance of persecution by reference to his position as a Kurdish Alevi with union and leftist sympathies.

100               The Tribunal came to the following conclusions in this regard:

(a)        The appellant would not face a real chance of serious harm if he returned to Turkey now or in the reasonably foreseeable future because of his Kurdish Alevi ethnicity and religion.

(b)       Although the Turkish authorities might be vigilant against communist-based organisations, particularly the TKPML and other terrorist-linked organisations, there was limited evidence that would suggest that the appellant would be persecuted on the basis of his claimed union affiliations or leftist sympathies.

(c)        As to the second of these findings, the Tribunal also observed that the appellant’s evidence relating to his union affiliations and leftist sympathies was vague, inconsistent and at odds with independent country information which had not yielded any evidence of targeted state persecution of Kurdish Alevi union sympathisers or members of the TKP.  

101               However, the appellant submitted that, in considering the “real chance” test, the Tribunal was also required to take into account the possibility that the arrest warrant might have been genuine.  Building on this submission, the appellant then submitted that the Tribunal failed properly to apply the test by not considering how the possibility that the arrest warrant might be genuine might also affect the question of whether the appellant had been persecuted by Turkish authorities in the past. 

102               These submissions should be rejected.  First, in so submitting, the appellant was really seeking to open up in an indirect way the Tribunal’s finding that the appellant had not suffered past persecution as he had claimed.  As noted, the Tribunal was in no real doubt about that matter, for the reasons which it gave. 

103               Secondly, a fair reading of the Tribunal’s reasons shows that the Tribunal, equally, was in no real doubt that the arrest warrant did not correspond to the appellant.  Thus, in considering the “real chance” test, the Tribunal was not required to consider the “possibility” that the arrest warrant was one issued for the arrest of the appellant.

104               The Federal Magistrates Court took the view that the Tribunal should have taken into account the possibility that the appellant was not a karate player (and, inferentially, travelled to Australia on false documents) and that the arrest warrant might have been genuine.  That view might not have been warranted, but, in any event, the Federal Magistrates Court accepted that the Tribunal had considered whether there was a reasonable basis or good reason for a well-founded fear of persecution.  The Federal Magistrates Court concluded that the appellant was really arguing that the Tribunal failed properly to apply the test because it did not do so premised upon an acceptance of the appellant’s case.  There is, with respect, considerable force in that conclusion.  Contrary to the principles noted in Rajalingam, the appellant effectively argued for an application of the “real chance” test on the basis that the entirety of an applicant’s claims must be considered as a “possibility” in the evaluation of whether that applicant has a fear of persecution that is “well-founded”.

105               Ultimately the Federal Magistrates Court found that the Tribunal correctly addressed the “real chance” test.  The Federal Magistrates Court did not err in that ultimate finding.

106               Grounds 7 and 8 of appeal should be dismissed.

Grounds 9 and 10: failure to deal with claims based on imputed political opinion

107               The appellant submitted that the Tribunal failed to deal with the appellant’s claim that he faced a real chance of persecution based on a political opinion that might have been imputed to him by the authorities as a result of his attendance at numerous demonstrations and protests.  In this connection the appellant submitted that his claims could not be dealt with by the Tribunal without a clear finding about the appellant’s attendance at each of the demonstrations and protests.  As a result, the appellant submitted that the Tribunal failed to deal with issues at the heart of his claims, namely the consequences of his history of attendance at demonstrations and protests in support of leftist causes.

108               These submissions should be rejected.

109               The Tribunal’s decision record shows that, on the basis of the evidence before it, the Tribunal did not accept a number of aspects of the appellant’s claims, including that he attended demonstrations and protests at which he was arrested.  The Tribunal set out comprehensively in its decision record the details of the appellant’s claimed involvement in demonstrations and protests.  Indeed, the transcript shows that the appellant was questioned extensively on these matters at the hearing conducted by the Tribunal over two days.  There is nothing to suggest that, having done this and then recorded this evidence in the detail in which it did in the decision record, the Tribunal then failed to consider that evidence or the appellant’s claims in that regard.  It is clear on the face of the Tribunal’s decision record that it was seized of the appellant’s claim that he feared persecution on the basis of political opinions that had been imputed to him.

110               The fact that the Tribunal did not make specific findings with respect to the appellant’s attendance or otherwise at particular demonstrations and protests does not reveal that the Tribunal failed to consider his claim based upon political opinions that had been imputed to him.  The Tribunal was not required to make specific findings, incident by incident, relating to the appellant’s account of attendance at demonstrations and protests: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184;(2003) 75 ALD 630 at [46]-[47].  It was, of course, a matter for the Tribunal to evaluate that evidence taken together with all other evidence and material placed before it.  In the end result the Tribunal was simply not satisfied that the appellant had attended and been arrested at demonstrations and protests, as he had claimed.  It made a specific finding in that regard. 

111               The Federal Magistrates Court found that the appellant’s claim based on imputed political opinion was considered and not overlooked by the Tribunal.  No error has been demonstrated in this finding.

112               Grounds 9 and 10 of the appeal should be dismissed.

Grounds 11 and 12: apprehended bias

113               The appellant advanced these grounds of his appeal on the sole basis that there was a denial of procedural fairness because of an apprehension of bias manifested by a range of matters.   

114               In this connection the appellant submitted that:  (a) the Tribunal made repeated unfair assertions and suggestions during the hearing that the appellant was not being candid or truthful; (b) the Tribunal attempted to impugn the appellant’s truthfulness by reference to the so-called “fraudulent” or “illegitimate” manner in which the appellant escaped from Turkey and came to Australia; (c) the Tribunal insisted on getting the appellant to accept a “possibility” that the arrest warrant could have been fabricated and thereby relied upon a false dichotomy that it could not accept the arrest warrant was genuine if the documentation in support of the appellant being a karate player was not genuine; (d) the Tribunal made incorrect assertions of contradictions and inconsistencies in the appellant’s evidence; (e) the Tribunal made comments during the hearing that suggested pre-judgment.  The appellant submitted that, overall, the Tribunal’s questioning of him appeared calculated to undermine his case rather than to facilitate a non-partisan investigation into the facts:  VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [82].  He also called in aid all the preceding grounds of appeal as reinforcing the existence of a reasonable apprehension of bias. 

115               The submissions made on this aspect of the appeal appear to mirror the submissions advanced by the appellant to the Federal Magistrates Court.

116               The Federal Magistrates Court gave earnest consideration to the issue raised by these grounds of appeal.  It considered the transcript of the hearing before the Tribunal and, at the appellant’s request, listened to the recording of the hearing.  It noted some minor departures between the hearing as recorded and the transcript, but observed that, broadly, the transcript accurately recorded the evidence given before the Tribunal. 

117               The Federal Magistrates Court rejected the appellant’s criticisms of what may be described compendiously as the manner, form and content of the Tribunal’s questioning as revealed by the transcript.  Based on listening to the recording of the hearing, the Federal Magistrates Court made the following finding (at [94] of its reasons): 

What is not apparent from the transcript is the difficulty occasioned by the necessary intervention of the interpreter between the applicant and the Tribunal.  It was difficult to discern any significance from the tone in the applicant’s voice because his expression was in his native tongue.  There did appear to be occasions of exasperation by the Tribunal member herself which appeared to be occasioned by responses received to various questions.  The responses suggested some difficulty with the translation.  Generally however the tone of the Tribunal member was compassionate.  On occasions when she was seeking answers to questions it became “plaintive” in its pitch. However it was not ever inappropriate, harassing or overbearing.  Although submissions made by the parties refer to the Tribunal’s examination of the applicant as “vigorous” or robust I do not consider such adjectives generally describe the examination.  Clearly there were occasions when the parties to the examination did become excitable.  However such occasions were limited and certainly no more frequent than what one might expect in the examination of an individual conducted by medium of an interpreter in the context of a refugee application.

118               The Federal Magistrates Court concluded (at [95] of its reasons): 

It follows from a consideration of the discreet [sic] issues raised both separately and collectively that I do not consider a fair minded and informed observer might reasonably have apprehended that the decision maker in this instance did not bring an impartial mind to the resolution of the issue to be decided.  In my view the proceeding would not give rise to a reasonable apprehension of the possibility that the Tribunal was predisposed toward a result other than the result reached following evaluation of the material before it.  Nor would it support the proposition that it did not proceed to treat the matter with an open mind capable of persuasion in favour of the applicant.  In my view the conclusions of the Tribunal were not arbitrary but reasoned.  There was evidence to support the Tribunal’s findings of fact in respect of each matter and it cannot be concluded that in reaching its material findings the Tribunal was motivated by any capricious or arbitrary cause.  In my view the Tribunal’s decision was one which appears to have been reached following a reasoned and even-handed consideration of all material including the applicant’s own evidence in respect of which the Tribunal was assisted to form views concerning the applicant’s credibility.

119               In this appeal the appellant submitted that, in substance, the Federal Magistrates Court erred by adopting an approach that was more suited to a determination of whether there was actual bias on the part of the Tribunal rather than whether a hypothetical fair-minded (informed) observer would consider that there was a possibility that the Tribunal might not have had an open mind.    However, in advancing that submission, the appellant did not seek to identify or even exemplify the respect or respects in which it was said that the Federal Magistrates Court erred in its assessment of this question. 

120               It is clear that the Federal Magistrates Court identified the issue as one of apprehended bias not actual bias, and directed itself to, and instructed itself on, the correct test. Consideration of the transcript references relied on in this appeal does not demonstrate error on the part of the Federal Magistrates Court in coming to its findings in this regard. 

121               Grounds 11 and 12 of the appeal should be dismissed.

DISPOSITION

122               The appeal should be dismissed with costs.

Associate:

Dated:         22 September 2010