MZKAM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 428

FEDERAL COURT OF AUSTRALIA

MZKAM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 428 MZKAM v Minister for Immigration & Multicultural & Ethnic Affairs [2004] FMCA 785 affirmed S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 distinguished MZKAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No. VID 1476 of 2004 HEEREY J 18 APRIL 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1476 OF 2004

On appeal from a decision of the Federal Magistrates Court

BETWEEN: MZKAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 18 APRIL 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1476 OF 2004

On appeal from a decision of the Federal Magistrates Court

BETWEEN: MZKAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 18 APRIL 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant, a 32-year-old male Turkish citizen of Kurdish ethnicity, arrived in Australia on 14 April 2001. He lodged an application for a protection visa on 25 May 2001. The application was refused by a delegate of the respondent. The Refugee Review Tribunal affirmed that decision. An application for review was dismissed by the Federal Magistrates Court (Phipps FM): MZKAM v Minister for Immigration & Multicultural & Ethnic Affairs [2004] FMCA 785. The appellant now appeals from that decision. 2 The appellant's claims before the Tribunal were that he had a well-founded fear of persecution should he be returned to Turkey because of:

(a) his imputed political opinion arising out of an association with a suspected Kurdish activist (referred to as "B" in the FMC decision); and

(b) his ethnicity and religion as an Alevi Kurd.

3 Before the FMC the appellant argued that the Tribunal had committed jurisdictional error in that it failed to have regard to relevant considerations, namely: (a) whether, given that the Tribunal had accepted that the appellant was detained and tortured in 1995, and given the continuing abuse of human rights in Turkey as accepted by the Tribunal, the appellant might again be detained and persecuted, e.g. by further interrogation under torture, because of his Kurdish cultural connections; (b) whether the appellant remains at risk of persecution because of his name being in another person's notebook, a claim made and not rejected by the Tribunal; (c) whether the appellant would be at risk of persecution upon return to Turkey if he again engaged in Kurdish activities such as Newroz or political activities such as a May Day rally. The Tribunal accepted that the appellant "may have participated" in such a demonstration and was apparently prepared to accept that some of the others at the rally were arrested, and was apparently prepared to accept that those who are arrested are at risk of persecution by abuses perpetrated by officials, as noted above.

Evidence before the Tribunal 4 The appellant claimed:

(a) in 1995, while living with a work colleague in Gaziatap, the police raided their house, found Kurdish materials and took the appellant and his colleague into custody, where they were interrogated and tortured;

(b) the appellant was released after three days and then kept under surveillance;

(c) the appellant undertook compulsory military service between 1996 and 1998;

(d) about a month after his discharge from military service, he learned that his childhood friend, "B", had been tortured to death by the police;

(e) while attending Adana with B's family to collect the body, the police recognised the appellant's name from information in B's notebook;

(f) the police detained the appellant for a week, during which time he was interrogated and tortured;

(g) when the appellant returned to his home town, the local police detained him for a further two days and interrogated him about the leaders of B's organisation;

(h) in December 1998, the appellant moved to Mersin to work;

(i) in May 1999, the appellant participated in a May Day demonstration in Mersin;

(j) some of the appellant's colleagues were detained for their involvement in this demonstration and they passed on his name to the police but the appellant managed to escape arrest;

(k) his family told him not to return to his home town because the police were looking for him;

(l) he remained in hiding in Mersin for a month before travelling to Cyprus;

(m) for the next two years, the appellant lived in Cyprus using a false identity ;

(n) on the few occasions when he contacted his family, he was informed that the police were still looking for him;

(o) he decided to leave Turkey and, with the help of his family and an agent, was able to extend his passport and obtain an Australian visa;

(p) in July 2002 his parents told him that he had been summonsed to court;

(q) since his arrival in Australia, the appellant had joined the Kurdish Association in Melbourne and participated in its activities;

(r) he did not pursue Alevi religious and cultural practices in Melbourne, although he attended Kurdish cultural events.

The Tribunal's findings 5 The Tribunal made the following findings:

(a) the appellant was a non-practising Alevi;

(b) if he chose to do so, the appellant could practise the Alevi faith and culture in Turkey without undue hindrance and did not face a real chance of persecution by reason of being an Alevi;

(c) Turkey has a bad human rights record and human rights abuses still occur in that country; in particular, people perceived to be connected with terrorism might be at risk of adverse attention from the government and its agencies;

(d) however, country information and the appellant's own circumstances suggested that the situation for Kurds in Turkey had improved in recent times;

(e) the appellant was detained after a house raid in 1995 but soon released because, on his own evidence, the authorities accepted his colleague's explanation that he had nothing to do with the Kurdish materials that were found at the house or the activities of his colleague;

(f) although it was "plausible" that the appellant was detained and mistreated in 1995, "that issue was finalized on his unconditional release";

(g) in January 1998, after completing two years of military service, the appellant was honourably discharged and returned to his home town, where he married and remained for a further six months after his marriage;

(h) due to discrepancies and inconsistencies in the appellant's evidence "regarding his arrest and detention in Adana in February/March 1998" (ie at the time of B's death), the appellant had "fabricated that aspect of his evidence";

(i) the appellant was not detained and mistreated in 1998;

(j) it was "plausible" that the appellant participated in May Day protests in 1999 and that he ran away when police dispersed the protestors;

(k) it was also "plausible" that the appellant's parents told him not to return to his home village because some of B's colleagues had been arrested;

(l) it was "plausible" that someone had informed the police that the appellant had participated in the May Day rally;

(m) however, the fact that the appellant was able to renew his passport and passed through the Turkish border, at least on his departure from Turkey, using genuine documents that identified him, indicated that he was of no adverse interest to the Turkish authorities;

(n) therefore, while he may have participated in May Day rallies in 1999, he was not wanted by the authorities for that reason;

(o) accordingly, the appellant's last encounter with the Turkish authorities was in 1995;

(p) the appellant was not under any suspicion when he left Turkey in 2001;

(q) although the appellant had participated in Kurdish cultural activities in Australia, those activities were not political and would not attract the adverse attention of the Turkish authorities if he returned to Turkey;

(r) even if the appellant remained anxious about returning to his home town, he could reasonably relocate to other parts of Turkey.

FMC decision 6 In relation to the alleged error of failing to have regard to the matters in [3] above pars (a) and (c) (fear of persecution on political grounds because of previous events involving the appellant and bad human rights record in Turkey) the learned magistrate said (at [32]): "The Tribunal has considered whether the applicant faces a real chance of persecution if he returned to Turkey, and has done so in the context of the 1995 incident, the 1999 May Day rally, that he has a relative who was associated with a banned political party and the political situation in Turkey so far as Kurds are concerned. If the complaint about the Tribunal's deliberations is that it did not consider what might happen if the applicant returned to Turkey and became politically active, or more politically active than he had been, then it was not required to do that. That was not the claim put before it or which could be found in the evidence and submissions which the applicant put before the Tribunal. The applicant did not suggest that he intended becoming more politically active than he had been. The claim put before the Tribunal was that by reason of what had happened in the past, the applicant had a well founded fear of persecution if he returned to Turkey. The Tribunal has considered what happened in the past in the context of what might happen in the future. There was no failure by the Tribunal to consider a substantial or relevant issue." 7 In relation to the failure to deal with the particular claim that the police found the appellant's name in B's notebook ([3] above, par (b)) the learned magistrate said (at [34]): "The applicant claimed that he went with B's family to collect the body. He claimed he was arrested and interrogated and claimed that the police told him they had found his name in the notebook on B's body. The Tribunal rejected the applicant's evidence about this incident. It considered that the applicant had fabricated the evidence. There is no challenge to this finding. It necessarily follows that the Tribunal has rejected the evidence that B's body had a notebook on it which had the applicant's name on it. The Tribunal rejected all of the applicant's evidence about this incident and gave its reasons. There was no need for it to go through the evidence line by line saying that it rejected each part of it. There is no substance in the complaint that the Tribunal failed to consider a relevant matter so far as the notebook is concerned."

Conclusion on the appeal 8 The learned magistrate was correct in concluding there was no error, still less jurisdictional error, in the way in which the Tribunal dealt with the first issue. The Tribunal had made explicit findings about the events alleged by the appellant and the current state of human rights abuses in Turkey. It thus had a proper basis to make its assessment as to whether the appellant's alleged fear of persecution on his return was well-founded. 9 Counsel for the appellant criticized the Tribunal's finding that the appellant's last encounter with the authorities was in 1995 and that "the issue was finalized at that time" even though, as the Tribunal found, for some time thereafter "local officials kept him under surveillance in his home town". However, although surveillance in some circumstances might involve harassment and interference with a person's life which could amount to persecution, there was no evidence that this occurred in the present case and the appellant's case before the Tribunal did not suggest it. In the light of the evidence as a whole, and in particular evidence that the appellant was able to leave Turkey in 2001 without hindrance using genuine documents which identified him, the Tribunal did not commit jurisdictional error in reaching the conclusion it did. 10 Counsel for the appellant referred to the High Court's decision in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112. In that case, the majority's conclusion appeared to hinge on their assessment that it was "highly likely" that the appellants, homosexuals in Bangladesh, had acted discreetly in the past because they feared they would suffer harm unless they did: see per McHugh and Kirby JJ at [39]. Thus the Tribunal committed jurisdictional error in failing to inquire into and determine whether the modified conduct was influenced by the threat of harm: ibid at [43]. 11 In the present case, the appellant made it clear he was not interested in political, as distinct from cultural, affairs. At the Tribunal hearing his agent said: "… (the appellant) has been arrested on several occasions for different events obviously, but that would, in itself, build up a profile of someone who could be suspected of political activity, and that although he himself has admitted he is not active at all. He is active culturally here but he is not active politically. Certainly wasn't in Turkey, but is still of an age and of a profile that it would be believable that the government would continue to suspect him." Similarly, in one of his written statements, the appellant spoke of his activities with the Kurdish Association in Australia since his arrival in terms which are cultural rather than political. He said it was important to "be with other Kurdish people and to openly acknowledge my Kurdish identity and heritage". The claims of the appellant were thus confined to an assertion of fear based on imputed political opinion arising from his participation in certain events in the past in Turkey. The Tribunal dealt adequately with that claim. 12 The learned magistrate was correct in his characterisation of the name in the notebook issue. This was part of a larger narrative which it was open to the Tribunal to reject as a matter of fact. 13 The Tribunal also based its decision on the alternative ground of the appellant's capacity to relocate within Turkey. This finding does not appear to have been challenged before the FMC and was not challenged on the appeal to this Court. This provides a further basis for the dismissal of the appeal. A notice of contention under O 52 r 22(3) should have been filed and I gave leave for it to be filed after the hearing. 14 The appeal will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate: Dated: 15 April 2005 Counsel for the Appellant: A Krohn

Solicitors for the Appellant: Clothier Anderson & Associates

Counsel for the Respondent: R Knowles

Solicitors for the Respondent: Clayton Utz

Date of Hearing: 11 April 2005

Date of Judgment: 18 April 2005