FEDERAL COURT OF AUSTRALIA

SZSPE v Minister for Immigration and Border Protection [2014] FCA 267

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment given by the Federal Circuit Court of Australia (the Federal Circuit Court) on 20 November 2013.

2    The Federal Circuit Court dismissed an application for judicial review of a decision made on 11 January 2013 by the second respondent, the Refugee Review Tribunal (the Tribunal). This decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Protection (Class XA) visa.

Background

3    The appellant arrived in Australia on 9 December 2007, having departed legally from Turkey on a passport issued in his own name and a subclass TU-570 (Student) visa. On 28 September 2012, nearly five years after his arrival, the appellant lodged an application for a Protection (Class XA) visa.

4    The appellant’s claims, as summarised by the primary judge, were as follows:

    The appellant was born in the province of Hatay in Turkey in 1990.

    The appellant left Turkey at 17 years of age, fearing that he would be forced to join the Turkish Military.

    The appellant claims that young men like him from working class families were often sent to areas where there was much fighting and where many soldiers were killed.

    The appellant has always been against war and does not believe the Turkish government has any purpose in carrying out its war against the Kurds.

    When the appellant was 18 and in Australia, he heard that his family in Turkey had received a letter from the Turkish military requesting that he carry out his military service.

    Later, the appellant heard that his family had received a summons for him to attend a military court to face charges of desertion. The police and military also made a number of visits to the family home looking for the appellant.

    The appellant’s family received documentation that apparently confirmed that the military planned to send the appellant to Semdinli, a location which the appellant knew to be “very dangerous” and where “everyday many people [are] killed”.

    The appellant asserted that “professional militia and terrorist groups” operate in Semdinli specifically targeting Turkish military officers, using guns, explosives and “other destructive weapons”.

    Two of the appellant’s three cousins, who had been forced to complete compulsory military service, had been killed during their service. The appellant fears for the safety of his remaining cousin and believes that if he were to return to Turkey, he would eventually face the same fate as his cousins.

    The appellant fears that if he were forced to return to Turkey, he would face harm including detention, prolonged imprisonment by the Turkish government, and forced service in the Turkish military.

5    On 22 November 2012, a delegate of the Minister refused the appellant’s application for a protection visa.

6    On 23 November 2012, the appellant lodged an application for review by the Tribunal of the delegate’s decision.

Legislative background

7    Section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) provides:

A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol …

8    Section 36(2)(aa) (the complementary protection provisions) provides:

A criterion for a protection visa is that the applicant for the visa is:

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

9    Section 36(2A) identifies what is meant by “significant harm”:

A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

10    Section 5(1) defines “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

The Tribunal’s decision

11    The Tribunal did not consider the appellant to be a credible witness. It found that the appellant was prepared not to tell the truth if he believed that it would be to his advantage. The Tribunal went on to explain the basis for that finding. It is not necessary for me to repeat the details of the Tribunal’s analysis of the evidence before it. However, in the course of undertaking that analysis, the Tribunal made certain findings which are relevant to the present appeal.

12    The Tribunal found, contrary to the appellant’s contention, that, if returned to Turkey, the appellant would be treated as a pre-registration draft evader or “roll call evader”, not as a deserter. If prosecuted, he would be tried by “the ordinary criminal courts”, not a military court. The Tribunal accepted that if the appellant were tried as a draft evader, he would be liable to imprisonment. The independent evidence suggested that he may be sentenced to between 6 and 36 months in prison and that this sentence would be served in “a regular prison”, not a military prison.

13    The Tribunal accepted that the appellant did not want to undertake his military service in Turkey. It did not accept, however, that the appellant had an ideological, philosophical, ethical or religious objection to military service, carrying weapons or killing people in general, nor that he had a particular objection to Turkey’s current conflict with the PKK (the Kurdistan Workers’ Party). The Tribunal did not accept that the appellant was a conscientious objector.

14    Further in this regard, the Tribunal found at [143]-[145] of its decision record:

In their submissions dated 6 November 2012 the applicant’s representatives submitted that the applicant also feared harm for reasons of his actual or imputed political opinion (specifically his views against war and the Turkish government’s handling of the current conflict in ‘Kurdistan’). However for the reasons given above I do not accept that the applicant holds views opposed to war or military service, or to Turkey’s war with the PKK in particular, nor that there is real chance that, if he returns to Turkey now or in the reasonable foreseeable future, he will voice such views or will be prevented from voicing such views by his fear of being persecuted for voicing such views. I do not accept in particular that there is a real chance that the applicant will be punished or mistreated for expressing his views about war or military service or specifically about the Turkish government or its war with the PKK while undertaking his military service, nor that he will be prevented from expressing such views by his fear of being punished or mistreated. I do not accept that there is a real chance that the applicant will be persecuted for reasons of his actual or imputed political opinion if he returns to Turkey now or in the reasonably foreseeable future.

In their submissions dated 3 January 2013 the applicant’s representatives argued tht he applicant would be perceived by the Turkish authorities as being a conscientious objector based on his past actions in departing Turkey for Australia at the age of 17, failing to respond to letters from the Turkish authorities regarding his military service obligations and refusing to return voluntarily to Turkey. I accept that the applicant will be viewed as having intentionally chosen not to return to Turkey in order to avoid compulsory military service but I do not accept that, as the applicants representative submitted, it is plausible that ‘a person adopting such drastic measures to avoid military service would be seen to hold profound views or convictions against such service and [would] therefore be considered a “conscientious objector”’.

Contrary to the applicant’s representatives’ submissions, the applicant has not adopted any drastic measures: he has simply remained in Australia in an attempt to evade his military service obligations. There is nothing in the evidence before me to suggest that there is a real chance that this will lead the Turkish authorities to conclude that he is a conscientious objector. I likewise do not accept that there is a real chance that, as submitted by the applicant’s representatives, the fact that the applicant has applied for asylum in this country will lead the Turkish authorities to view him as a conscientious objector. I consider that the most that can be said is that, if the Turkish authorities were to become aware or to suspect that the applicant has applied for asylum in Australia, they might conclude that he had falsely claimed to be a conscientious objector in an attempt to evade his military service obligations and that this claim had been rejected.

15     The Tribunal had regard to research prepared for the Canadian Immigration and Refugee Board that had been drawn to its attention by the appellant’s representatives. The Tribunal said that the statistics provided in that research suggested that draft evasion was commonplace in Turkey. The Tribunal reasoned that the appellant would be perceived as “simply one more draft evader”.

16    When considering the application of s 36(2)(aa) to the appellant’s circumstances, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Turkey:

    there was a real risk that the appellant would be subjected to arbitrary detention;

    there was a real risk that the appellant would be known or perceived as a conscientious objector;

    there was a real risk that the appellant would be subjected to mistreatment as a conscientious objector; or

    there was a real risk that the appellant would be subjected to torture in the context of any action taken against him as a draft evader.

17    The appellant advanced submissions referable to prison overcrowding in Turkey having a serious impact on sanitation and other physical conditions, as well as excessive use of solitary confinement, excessive strip searches of inmates and visitors, and a lack of proper medical treatment for sick and terminally ill convicts in Turkish prisons. The appellant submitted that this could amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment.

18    The Tribunal accepted that prison overcrowding is a particular problem in Turkey and that the Turkish prison system does not meet European Union standards. However, the Tribunal did not accept that pain or suffering caused by the overcrowding and other consequential problems in the Turkish prison system, to which the appellant referred, was “intentionally inflicted” on prisoners as required by the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Act, or that the overcrowding and other consequential problems were “intended to cause” extreme humiliation within the definition of “degrading treatment or punishment” in s 5(1) of the Act.

19    The Tribunal concluded, therefore, that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there was a real risk that he would suffer significant harm as defined in s 36(2A) of the Act in the context of being imprisoned as a draft evader.

20    The Tribunal went on to consider whether there was a real risk that the appellant would be arbitrarily deprived of his life while undertaking military service, even though this claim was not advanced by the appellant. The Tribunal concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Turkey, there was a real risk that he would be arbitrarily deprived of his life while undertaking his military service.

21    The Tribunal also rejected a claim by the appellant of his fear that, if returned to Turkey, he would be harmed or killed by Ali Kara (a person against whom the appellant had given evidence in criminal proceedings in Australia) or Mr Kara’s associates. Specifically, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Turkey, there was a real risk that he would suffer significant harm at the hands of Mr Kara or his associates.

The Federal Circuit Court judgment

22    The appellant raised two grounds in his amended application for judicial review filed in the Federal Circuit Court. The first was that the Tribunal had misapplied the complementary protection provisions of s 36(2)(aa) of the Act. Specifically, the appellant contended that the Tribunal misconstrued the statutory test by finding that “the likely pain and suffering to be experienced by the [appellant] during imprisonment in Turkey would not be “intentionally” inflicted because it would arise from “mere negligence””.

23    The second ground was that the Tribunal “failed to deal with the full integers of the [appellant’s] claims”. The primary judge rejected each ground.

24    At the hearing, the appellant was represented by counsel. It appears from the primary judge’s reasons that the appellant contended that harm suffered from “mere negligence” should not be excluded from a consideration of whether there was a real risk that significant harm would be suffered in the form of cruel or inhuman treatment or punishment, or degrading treatment or punishment. The genesis of this contention appears to have been the Tribunal’s observation (at [165]) that “mere negligence is insufficient” to satisfy “the intention requirement” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act.

25    The primary judge (at [61]) held:

In finding that suffering caused by mere negligence was not sufficient to satisfy s.5(1) of the Act, the RRT was doing no more than explaining the need that, for the purposes of complementary protection there must be a real risk of significant harm as defined in s.5(1) of the Act, that harm being intentionally inflicted.

26    The primary judge observed, correctly in my view, that the appellant’s first ground of review contained a misstatement of the Tribunal’s findings. The primary judge (at [68]) explained the position as follows:

Ground 1 is a misstatement of the RRT’s findings in suggesting that it found that pain and suffering would not be intentionally inflicted because it arose from mere negligence. As stated above, the RRT did no more than find that cruel or inhuman treatment or punishment and degrading treatment or punishment must be intentionally inflicted, in accordance with s.5(1) of the Act; and that mere negligence, without more, was not capable of amounting to intentional infliction of that pain and suffering

27    The primary judge found that the Tribunal had not misapplied s 36(2)(aa) of the Act when considering the appellant’s claims, and that the first ground of the appellant’s application had not been made out.

28    As to the second ground, the appellant contended that the Tribunal had failed to deal with a claim raised by the appellant that he feared harm in a Turkish prison from persons other than the authorities.

29    In considering this contention, the primary judge (at [76]) said:

A fair reading of all the applicant’s claims and submissions to the RRT makes clear that the applicant’s fear of harm in a Turkish prison was expressed to be from authorities, not other inmates. The RRT dealt with these claims both in relation to the criteria in ss.36(2)(a) and 36(2)(aa) of the Act. The RRT concluded that the applicant did not meet the relevant criteria. As stated above, those findings were open to the RRT on the evidence and material before it and for the reasons it gave.

30     The primary judge concluded (at [81] and [82]):

A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

The appeal

31    The appellant’s notice of appeal filed on 5 December 2013 contains the following grounds of appeal (errors in original):

1.    The Federal Circuit Court erred when it failed to find that the Refugee Review Tribunal committed jurisdictional error for its misrepresentation of the test in section 5(1) of the Migration Act 1958 and that the Tribunal misconstrued the proper construction and interpretation of the various sections of the Migration Act in regards to Protection and Complementary protection visa pursuant to section 5; and 36 of the Act. This is a denial of procedural fairness and a denial of natural justice. Particulars will be provided in an amended notice of appeal at a later date.

2.    The Refugee Review Tribunal committed jurisdictional error for deny me procedural fairness and natural justice by its failure to have regard to relevant materials and considerations. The tribunal ignored relevant material and information that was relevant to my claims for refugee and in need of Australia’s protection.

32    It is to be noted that the second ground of appeal refers to a ground not raised in the appellant’s application for judicial review by the Federal Circuit Court.

33    The appellant filed written submissions on 10 February 2014. In those submissions, the appellant identified two issues arising in the appeal. The first was whether the Tribunal misconstrued or misapplied s 36(2A) of the Act. The second was expressed as follows:

Did the Tribunal take into account irrelevant matters in finding that I will not suffer harm or degrading treatment if returned to Turkey?

34    The second issue was not raised as a ground of review in the appellant’s application to the Federal Circuit Court.

35    At the hearing of the appeal, the appellant appeared without legal representation. He was assisted by an interpreter. I raised with the appellant the fact that the second issue identified in his written submissions was not raised as a ground of review in his application before the Federal Circuit Court. I asked the appellant to identify what he contended to be the irrelevant matters that the Tribunal had taken into account. His response, in summary, was to press on the Court his belief that, if returned to Turkey, he would be tried by a military court, placed in a military prison and tortured. His response did not identify any irrelevant considerations taken into account by the Tribunal.

36    The appellant’s written submissions provide greater assistance. In those submissions the appellant contended that, in finding that he would “not suffer harm, inhuman or degrading treatment” if returned to Turkey, the Tribunal acted on “flimsy evidence that steps were being taken by the Turkish government to prevent torture and mistreatment in prisons”.

37    This appears to be a reference to findings made by the Tribunal at [159] of the decision record. There the Tribunal said:

The applicant’s representatives also referred to reports of torture and ill-treatment in Turkish prisons. I accept that, as referred to in the press report cited in the decision under review which the applicant’s representatives also quoted in their submission dated 21 December 2012, the Turkish Human Rights Foundation reported 724 cases of torture and ill-treatment in Turkish prisons in 2011. However the same report noted that he government had started to crack down on cases of torture and ill-treatment in many facilities (‘Turkey: Torture and abuse rampant in Turkish prisons, despite attempts at reform’. Global Postm 19 October 2012, CX298289). The US State Department reported that the government pursued efforts to ensure compliance with legal safeguards to prevent torture and mistreatment through its ongoing campaign of ‘zero tolerance’ for torture. It said that the Ministry of Justice reported that, out of a total of 127,074 individuals imprisoned, 36,429 were in pre-trial detention, 17,484 had been convicted and were awaiting the outcome of an appeal and 73,161 had been convicted and were serving their sentences (US State Department Country Reports on Human Rights Practices for 2011 in relation to Turkey, Sections 1.c, Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment, and 1.d Arbitrary Arrest or Detention).

38    The Tribunal (at [160]) concluded:

Having regard to the overall number of individuals imprisoned compared to the number of cases of torture and ill-treatment reported, and the steps being taken by the Turkish Government to prevent torture and mistreatment, I consider that there is only a remote risk that the applicant will be subjected to torture in the context of any action taken against him as a draft evader on his return to Turkey. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequent of the applicant being removed from Australia to Turkey, there is a real risk that the will be subjected to torture in the context of any action taken against him as a draft evader.

39    I am unable to see how the information that the Turkish government had started to crack down on cases of torture and ill-treatment – especially when contained in a report relied on by the appellant in his own submissions to the Tribunal – was an irrelevant consideration when dealing with his claim that, as a necessary and foreseeable consequence of being removed from Australia to Turkey, there was a real risk that he would be subjected to torture. I therefore reject that contention.

40    With respect to the appellant’s first ground of appeal, I am satisfied that the primary judge did not err in rejecting that ground of review. It is clear, in my view, that the Tribunal properly construed s 36(2A) of the Act when considering the application of s 36(2)(aa) to the appellant’s circumstances.

41    At the hearing before the Tribunal, the appellant had argued that the requirement of intention in the definitions of “cruel or inhuman treatment or punishment”, and “degrading treatment or punishment” should be given a construction that had been given to similar expressions used in relevant international treaties. The Tribunal rejected this approach. It said that there was a distinction to be drawn between the international jurisprudence and the definitions in question. In this connection, the Tribunal relied upon several passages in the Full Court judgment in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211. The Tribunal was correct to do so.

42    At [18] of that case, the Full Court said:

The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia's express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights, done at New York on 16 December 1966 (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on 10 December 1984 (CAT) and the Convention on the Rights of the Child, done at New York on 20 November 1989 (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Section 36(2B)(a) and (b) have adopted a different and contrary position. Section 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.

43    The Full Court subsequently concluded (at [20]) that it was neither necessary nor useful to ask how the international law treaties would apply to the circumstances of the case before it. The same is true of the appellant’s case before the Tribunal. The Tribunal was correct to proceed on the basis that its starting point must be the words of the Act itself.

44    Much of the appellant’s submissions on appeal were devoted to repeating his claims that, if returned to Turkey, he would suffer harm. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Turkey, there was a real risk that he would suffer significant harm as defined in s 36(2A) of the Act. That finding was open to the Tribunal on the evidence before it.

45     The appellant has not demonstrated any appealable error in the judgment of the Federal Circuit Court. He has not established that there was jurisdictional error in the Tribunal’s decision.

Disposition

46    The appeal should be dismissed with costs.

Associate:

Dated:    26 March 2014