FEDERAL COURT OF AUSTRALIA

Demirci v Minister for Immigration & Multicultural Affairs [1999] FCA 1114

ALI DEMIRCI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 453 of 1999

LINDGREN, EMMETT, GYLES JJ

13 AUGUST 1999

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant appeals from an order made by Einfeld J on 5 May 1999 dismissing his application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  On 31 March 1999, the Tribunal had dismissed the appellant’s application for review of a decision of a delegate of the respondent Minister refusing to grant the appellant a protection visa.

2                     The appellant is a citizen of Turkey.  Apparently he was born on 1 January 1967 at Istanbul and is unmarried.  Apparently he entered Australia in 1997, having been a member of the crew of a vessel which berthed at Newcastle where he “deserted ship”.

3                     The appellant did not apply for a protection visa until 25 January 1999.  His application was refused by a delegate of the Minister on 1 February 1999.  On 4 February 1999 the appellant applied to the Tribunal for review of the delegate’s decision.  The Tribunal fixed a hearing for 10 March 1999 but the appellant raised certain complaints to which we refer below and the hearing did not proceed on that day. 

4                     The Tribunal conducted a hearing on 22 March 1999 at which the appellant gave oral evidence.  As well, the Tribunal had before it written submissions made on the appellant’s behalf by the Refugee Advice and Casework Service (Australia) Inc (“RACS”). 

5                     As noted above, on 31 March, the Tribunal affirmed the delegate’s decision and on 5 May 1999, Einfeld J dismissed the appellant’s application for review of that decision.

6                     The appellant’s notice of appeal states no grounds of appeal at all.  Einfeld J recorded in his Reasons for Judgment that the application for review of the Tribunal’s decision similarly stated no grounds of review.

7                     The appellant has appeared in person today, assisted by an interpreter, and we have heard what he has to say. 

8                     The appellant’s claim to satisfy the definition of “refugee” in article 1A(2) of the Convention Relating to the Status of Refugees of 1951 as amended by the Protocol Relating to the Status of Refugees of 1967 is that he has a well-founded fear of being persecuted in Turkey for reasons of political opinion.  More precisely, he claims to fear persecution at the hands of the Turkish Police because they consider him to be a supporter of a left-wing group which is referred to variously in the papers as “Dev Genc” and “Dev Gench”.  He also claims to fear persecution by that group because he has refused to help them.

9                     The Tribunal set out in its Reasons for Decision the claims made by the appellant to the Department of Immigration. At the initial hearing before the Tribunal on 10 March 1999, the appellant objected to the interpreter and stated that he had discovered “mistakes” in his application regarding dates and “continuity”.  The Tribunal adjourned the hearing and gave the appellant a week in which to make amendments and submissions.  The Tribunal wrote to RACS on 10 March asking certain questions relevant to the two complaints the appellant had made.  RACS replied on 18 March 1999.  The response cast some doubt in relation to the appellant’s complaint that his original statement had contained “mistakes”.  That statement, dated 25 January 1999, was signed at the foot of each page by the appellant in the presence of a solicitor with RACS, Sonia Di Mezza, who stated in her letter to the Tribunal of 18 March that the statement had been read back to the appellant who had agreed with its contents. 

10                  RACS also made a written submission to the Tribunal dated 19 March 1999 on the appellant’s behalf. 

11                  In its Reasons for Decision the Tribunal noted the corrections which the appellant had made to his original statement. 

12                  Shortly, the Tribunal simply did not believe the appellant.  We do not think it necessary to describe the respects in which the Tribunal found the appellant’s account implausible.  The Tribunal stated:

“In spite of the three opportunities during which the applicant had his [statement] read back to him, and in spite of his statement dated the 18 March 1999, in which he stated that he was satisfied that the final statement and corrections were an accurate reflection of his refugee claim, inconsistencies between the applicant’s written claims and his oral claims, as well as internal inconsistencies at the hearing, arose in the following areas:

–          The nationality of the men who approached him in 1996

–          The number and nature of his detentions

–          The treatment of the applicant’s family

–          The degree of his involvement in political activities

13                  The Tribunal addressed these four areas of inconsistency in turn and concluded as follows:

“ ... considering the applicant’s untruthfulness on essential elements of his claim, as well as the inconsistencies in the applicant’s claims and evidence, the Tribunal finds that the claims of harm, and threats of harm, by the Turkish authorities to be a fabrication.

At the Tribunal hearing, the overall implausibility of the applicant’s claims was pointed out to him.  The Applicant was given the opportunity to clarify the contradictions regarding the various claims that he has made, but was unable to do so in any meaningful way.  Given the significant adverse findings on credibility in relation to the Applicant, the Tribunal cannot be satisfied that the Applicant has a real chance of being persecuted for a convention reason in Turkey in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well founded.”

14                  As noted earlier, the application to this Court for review gave no information as to the grounds on which the appellant contended that the Tribunal’s decision should be reviewed.  Einfeld J noted that the application stated only that the Tribunal’s decision was “unfair”. 

15                  Before his Honour, the appellant stated that the Tribunal’s Reasons for Decision had never been translated for his benefit.  His Honour considered the question of an adjournment but instead invited the appellant to outline his claim for refugee status, with a view to his Honour’s determining what might have been said if the form of application to the Court had been properly completed.  His Honour concluded that even if the appellant’s claims rejected on the grounds of credibility by the Tribunal had been factually based, they would have been insufficient to ground a conclusion that he entertained a genuine fear of persecution based on actual or imputed political opinion as required by the Convention.  For this reason, his Honour thought it unnecessary to adjourn the hearing in order that the Tribunal’s Reasons for Decision might be translated.  His Honour, in addition, scrutinised the reasons of the Tribunal, and found no fault with them.

16                  It suffices for us to say that we agree with his Honour that no error of a kind described in s 476 of the Migration Act 1958 (Cth) is shown in the Reasons for Decision of the Tribunal.  The issue of credibility is a prime example of a matter which the legislative scheme accords to the Tribunal for consideration and not to this Court.  No error of a kind described in s 476 appears in the course by which the Tribunal arrived at its disbelief of the appellant.

17                  The orders of the Court are that:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

Associate:

Dated:              17 August 1999