FEDERAL COURT OF AUSTRALIA

Unal v Minister for Immigration & Multicultural Affairs [1999] FCA 750

TAMER UNAL & ORS V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 646 OF 1998

SPENDER, WHITLAM AND NORTH JJ

28 MAY 1999

MELBOURNE

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SPENDER J:

1                     This is an appeal from a decision of a single judge of this court, Ryan J, who upheld the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 18 December 1996 that the appellants did not have a well-founded fear of persecution because the persecution they claimed to fear did not come within any of the grounds in article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the protocol relating to the Status of Refugees done at New York on 31 January 1967 (‘the Convention’).

2                     Ryan J was concerned with the decision by the Tribunal which made a finding rejecting the claimed persecution.  The Tribunal specifically rejected the claim made by, in particular, Mr Unal.  It said:

“…the Tribunal is not prepared to accept that the Applicant husband has faced harassment in the way he described.”

It further said:

“…the Tribunal does not accept that the Applicant husband has been targeted by fundamentalist Muslim groups as a result of his business.”

It also said:

“The Tribunal does not accept that he has been targeted in the systematic way claimed by fundamentalist Muslims at all.”

Having made that finding, it then observed:

“Such targeting is alleged to be because of the Applicant husband's activities in installing anti‑bomb devices.  The Tribunal does not accept that this has anything to do with the Applicant husband's religion.” [Mr Unal is an Alevi]  The Tribunal also does not accept that such targeting would be on account of either a political opinion or imputed political opinion.  In the mind of the persecutors their aim is to decode the anti-bomb alarms.”

3                     In the light of its finding that there had not been the targeting claimed, it went on nonetheless to consider whether that might be for a Convention reason and, after considering the Convention reasons, said:

“…the Tribunal does not accept that even if the Applicant husband has been targeted by a fundamentalist group that [it] is for a Convention reason.”

4                     It is accepted, both below and on this appeal, that in a consideration of an applicant's claims, Convention reasons may overlap.  Similarly, it is not necessary that the fear of persecution be solely attributable to a Convention reason.  The finding of fact by the Tribunal was that the persecutor's aim, on the assumption there was harassment, was to decode the anti-bomb alarms.  Any targeting of the appellant was due to his reluctance to assist them in decoding his devices.  Ryan J said:

“In other words, the RRT regarded the applicant husband as having been persecuted because of his determination, in good faith, to preserve the confidentiality of his customers and the codes for their bomb warning devices and not because of any political persuasion imputed to him by his persecutors.”

5                     The central argument advanced to us was based on what was said to be a requirement by the Tribunal to inquire into why the fundamentalist group sought the information that it sought.  Essentially, the argument ran that, had the tribunal inquired as to why the fundamentalist group had sought the information about codes for dismantling the anti-bomb devices, it might have been found out that those persons about whom that information was sought shared a particular political opinion.  If the inquiry did reveal that there was a political opinion common to the group about whom the information was sought by the fundamentalist group, it is likely or possible for the fundamentalists to have imputed that common political opinion to Mr Unal.  It was said that because the inquiries might have led to that position, there was an error by the Tribunal in failing to make the inquiries.  I do not think the submissions went as far as saying that the failure to make those inquiries meant that, contrary to the finding, there was a Convention reason behind the persecution claimed by the appellants.

6                     It seems to me that the chain of speculative inquiries which the Tribunal is said to have been obliged to undertake, was not in any way at all the task of the Tribunal.  That was not the case that Mr Unal himself made, nor was it a case that was suggested to the Tribunal on the appellant's behalf, nor was it a case that was sought to be made before Ryan J.  On the contrary, the evidence by Mr Unal himself was that at the time, fundamentalists had asked him to install devices in their cars, and a lot of prominent people used his services.  His evidence was that he was supplying everybody who came to him with security systems, irrespective of their religion, language or race.  The appellant's own evidence established the nature of the clientele.  He said in his statement:

“As my business was centrally located and I had had years of experience, many prominent people around me such as Ministers, Journalists, Deans, Lecturers, bureaucrats and other people wanted to have these security systems installed.  The reason was that, as a result of the rising terrorism in the country, many people were killed by bombs placed in their cars.  My systems helped to prevent terrorism.”

And later in his statement he said:

“I was supplying everybody who came to me with security systems irrespective of their religion, language, race.  Among my clients, there were many who wanted to have security systems installed to protect themselves from attacks by the fundamentalist groups.  I was just doing my job and keeping everything I learned during the course of my work confidential.  However, these terrorist groups that have very sophisticated intelligence networks were asking me to tell them who were being protected by these systems and how these systems can be eliminated.  They were threatening me that if I didn’t do as they said, they would destroy my workplace and kill me.”

7                     It seems to me that there has been no error shown in the reasoning process of the Tribunal on the material before it, nor has there been any error shown in the reasons for judgment of the learned primary judge.  The conclusion that the reason for the claimed persecution was not based upon a political opinion imputed to Mr Unal,  but rather on a desire of the fundamentalists to obtain information from him to decode the anti-bomb alarms, involves a threat of harm for what is an individual basis.  The observations by Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, with whom O'Loughlin and R D Nicholson JJ agreed, are apposite in the present case.  Burchett J said:

“If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’.  The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ - the membership of the social group must provide the reason.”

8                     It is wholly speculative to suggest that the information was sought because there was a particular social group of a particular political opinion and that that political opinion had been imputed by the fundamentalists to Mr Unal, with the consequence that he was threatened by reason of the imputed political opinion.

9                     No error has been shown in the reasons for judgment of Ryan J.  I would dismiss the appeal with costs.

WHITLAM J:

10                  I agree and have nothing that I wish to add.

NORTH J

11                  I agree with the orders that the appeal should be dismissed with costs for the reasons given by the presiding judge.

SPENDER J:

12                  The orders of the court are that the appeal is dismissed with costs.

Associate:

Dated:              28 May 1999