Ovali, Selahattin v The Minister for Immigration & Multicultural Affairs [1997] FCA 1148

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG23 of 1997

GENERAL DIVISION

BETWEEN: MR SELAHATTIN OVALI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FINN J

DATE OF ORDER: 24 october 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The Applicant pay the Respondent's cost. 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 VG23 of 1997

general division

BETWEEN: MR SELAHATTIN OVALI

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FINN J

DATE: 24 october 1997

PLACE: MELBOURNE

REASONS FOR JUDGMENT This is an application under Part 8 of the Migration Act, 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") of 16 December 1996 in which it was not satisfied that the applicant, Mr Ovali, was a refugee and in which it affirmed the decision not to grant him a protection visa. I note at the outset that the applicant sought at the hearing to adduce fresh evidence in this matter. That motion was refused, as I then indicated, primarily for the reason that the Tribunal itself had no power to reconsider the matter in the light of that evidence after it had made its decision: Shantha Karunaratna Jayasinghe v Minister for Immigration and Ethnic Affairs, Federal Court of Australia, 25 June 1997, Goldberg J. Though the application raises several grounds of review, the matters in issue fall within a narrow compass. There is not, as I apprehend it, any significant disagreement between the applicant and the respondent Minister as to the proper tests and approaches to be applied in determining whether Mr Ovali has a "well-founded fear of persecution" for the purposes of the Convention Relating to the Status of Refugees 1951 and, hence, for the grant of a protection visa: see the Act, s36; Migration Regulations clause 866. Reference was made in particular to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration, Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381. Though formulated in a variety of ways in terms of the grounds of review under s476 of the Act, the issues dividing the parties can properly be reduced to the following. First, did the findings made by the Tribunal themselves establish a well founded fear of persecution? The Tribunal's failure so to conclude in the light of the findings is claimed by the Applicant to demonstrate (i) an illogical process of determination amounting to a failure to act according to the substantial justice and merits of the case (the Act, s420(2)(a) and (b)) and hence a failure to observe the procedures required by the Act to be observed (s476(1)(a)): see Eshetu v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 621; and/or (ii) an error of law under s476(1)(e)("the findings ground"). Secondly, did the Tribunal in the manner in which it found the applicant not to be a member of the Moslem Alevi religion, fail to act in accordance with s420(a) and (b), hence s476(1)(a)? ("the religious ground"). Rather than detail the decision of the Tribunal generally, its relevant parts can be considered separately in relation to each of these two issues. 1. The Findings Ground It is appropriate to preface reference to the Tribunal's findings with mention of several background factual matters. (1) Mr Ovali is a Turkish citizen. In his application for a protection visa he stated that his ethnic group and his religion were both Alevi. As a religious denomination this description refers to a Moslem sect. In the same application, Mr Ovali elsewhere refers to himself as a Shi'ite sect member. (2) In answer to the question in the visa application form asking what the applicant fears may happen to him if he goes back to Turkey, Mr Ovali replied in the following terms which I set out in full as they encapsulate the central elements of the factual basis of this case. "I fear persecution on Convention grounds. I reside in the Kilbaran region within the Province of Karaman. Our town is a small place with a population between three to four thousand people. I come from the SHI'ITE religious sect and am continuing the traditions and beliefs that our ancestors taught us. However, we are continuously being neglected due to our religious ideologies. At times this results in fights. As the Shi'ite community is a minority in our town, we are endlessly oppressed by others, let alone the Shi'ite community in Turkey not having freedom of religion, no respect is shown for our beliefs official associations make it difficult and sometimes prevent our work from being completed. Although we can cope with such treatment which we do not deserve, it reflects upon our children. I have a brother, who attends Kilbaran High School. He ... is usually discriminated against by his teachers, along with them even wanting to take him out of religious lessons. After such an incident, my brother cried and explained the circumstances to me. With good intentions I went to attend the school to discuss the matter. When I appeared at the school, I was also degraded like my brother. I was told that people like us had nothing to do there. As a result of this statement, a fierce argument broke out between the Principal and myself which lead to a fight. One of the teachers had advised the police station. The soldiers quickly came to take me away and kept me in custody. I had received interrogation and was subjected to torture for exactly seven days. Later on, I was sentenced to appear at the Serious Punishment Court on the grounds that I had committed the crime of preventing the freedom of education. On 10th December 1992, whilst being taken to the Court accompanied by soldiers, I managed to escape with the help of the Sergeant in Charge (who I later found out was a Shi'ite). Since that date I have continued living as a fugitive. I was investigating ways to go overseas regularly changing my address and with great effort and help from my Shi'ite friends and a small amount of bribery." (3) Appended to the visa application form was what was claimed to be a warrant of arrest (dated 10.12.93) in respect of the events of 10.12.92. The Tribunal did not accept that this was a genuine document. Equally at the hearing before it a document (dated 15.4.96) was given the Tribunal which purported to come from the Public Prosecutor's Office in Turkey that, as translated, stated that Mr Ovali - "was charged with involvement in political activities and tired [sic] by our court and found guilty and he is currently being wanted by our court." The Tribunal did not accept that the contents of this document were true and correct. Turning now to the Tribunal's findings, I will follow the path taken by the applicant and set these out as a series of numbered, verbatim conclusions. The relevant findings begin with the incident at Mr Ovali's brother's school in December 1992. (1) "I accept that the Applicant went to his brother's school to discuss problems that his brother had encountered during religious instruction classes." (2) "I accept the Applicant's written evidence (as confirmed by the Applicant at the hearing and by the Interpreter at the Tribunal translating the Applicant's handwritten notes) that at the time the Applicant attended the school a teacher told him that 'people like us had nothing to do there'." (3) "As a result of this statement, 'a fierce argument broke out between the Principal and myself which led to a fight.' Clearly from the evidence I find that firstly a verbal discussion ensued which became more heated and led to a physical fight between the Applicant and the Principal. The Gendarmes were called and the Applicant was arrested and taken away and detained." (4) "I accept that the Applicant was detained and in the absence of any evidence to the contrary, that he was tortured while in prison. While I accept that this incident occurred I cannot find that it occurred for a Convention ground, that is, while the Tribunal deplores the fact that violence was perpetrated on the Applicant it was perpetuated on the Applicant not because he was an Alevi or for any other Convention ground, but because he was in detention and accused of a crime." (5) "The manner in which the Applicant was able to escape is credible, that is given that the Applicant was charged with what the Tribunal finds to be misdemeanours and not felonies, that is serious political crimes or serious criminal charges, the Tribunal finds the Applicant's account of the lax security afforded him when he was being taken to Court as being consistent with the crimes that he was alleged to have committed." (6) "The Tribunal accepts that the Applicant is wanted [in Turkey] for failing to appear, for fleeing police custody and for a number of criminal matters relating to the 'fierce argument ending with a fight' at the school which occurred in 1992. These incidents did not occur for any Convention ground." I should add for completeness that earlier in its Reasons for Decision the Tribunal found that - "the Applicant is not an Alevi. It may be the case that the Applicant was born an Alevi but he has never practised his religion." In light of these findings the Tribunal turned to the question whether the applicant "fears prosecution rather than persecution". Having made reference to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras 56, 152, 84-86, to Hathaway, "The Law of Refugee Status" and to an unreported judgment of Lindgren J of this Court in Udeni Wellivita, 18 November 1996, the Tribunal concluded: "From the evidence presented by the Applicant it would appear that his most unfortunate experiences during 1992 relate not to any perception of his religious belief or a perception by the authorities that he was involved in any political activities but to a criminal investigation. The Applicant has not provided any information which could be interpreted as indicating that the authorities were using the criminal law to persecute him for his religious beliefs. There is no doubt that the arresting officers acted unlawfully in the way in which the Applicant was detained and beaten. Such conduct has been well documented by organisations such as Amnesty International and other non-governmental and governmental bodies, such as the United State Department of State, in its report entitled Country Reports on Human Rights Practices for 1995. However, such conduct on the part of state authorities, does not have a bearing on a claim for refugee status, unless it can be demonstrated that it is done for a Convention reasons. The Tribunal finds that while the Applicant has a subjective fear of returning to Turkey, his fear arises as a result of his mistreatment in a Turkish jail. The Tribunal has found that this mistreatment occurred not for a Convention ground. The Applicant faces a possible term of imprisonment should he return to Turkey, however any term of imprisonment which he may face is as a result of criminal acts which occurred in 1992. There is no evidence before me to suggest that the Applicant would face persecution for a Convention ground should he return to Turkey or that he may not be able to defend himself or that any penalty which he may receive would be excessive and amount to persecution for a Convention ground. The Tribunal finds that the Applicant fears prosecution rather than persecution. The Tribunal finds that the Applicant does not have a well founded fear of persecution for a Convention ground." Before turning to the parties' submissions I must emphasise that neither these findings nor those relating to the allegedly official documents before the Tribunal were utilised to challenge the decision via s476(1)(g) as being based on non-existent facts - though the Applicant's counsel unsuccessfully sought at the end of his address to amend yet again the application to include a s476(1)(g) ground of review. Notwithstanding my unpreparedness to allow the amendment for the reasons I then gave, I nonetheless feel compelled to say that some number of the findings made seem "adventurous" given the evidence before the Tribunal. Put baldly the Applicant's submission is that the numbered findings set out above point to an instance where State power was used to persecute a person for expressing his (and his brother's) religious beliefs. Because of this it is submitted that, to have reached the conclusion it did, the Tribunal failed properly to construe or else apply the Convention. Critical to this submission is the claim made that, because of the Tribunal's first two numbered findings above - (i) that Mr Ovali went to the school to discuss problems encountered by his brother during religious instruction classes; and (ii) the statement leading to the altercation was that "people like us had nothing to do there" - all that subsequently transpired (the fight, the arrest and detention, the torture and that he is currently wanted in Turkey) was by reason of, and was attributable to, Mr Ovali's religious beliefs. The Respondent's case in contrast is that the findings made are simply inconsistent with the Applicant's general submission and that what is being sought is merely merits review. Whatever the genesis of the altercation, the Tribunal made findings that the subsequently occurring events, notwithstanding their severity (at least in the case of the torture), were not Convention related. In other words, they had their own explanation and this most clearly so in relation to the torture. Given that I must in the circumstances accept the findings made by the Tribunal, the conclusion in my view is inescapable that the Applicant's submission must be rejected. Even if it be accepted that the altercation had its genesis in religious difference (notwithstanding the finding that Mr Ovali was not an Alevi) the specific findings made (i) in relation to the nature of the criminal offences; (ii) that the evidence did not indicate the criminal law was being used to persecute Mr Ovali for his religious beliefs; and (iii) that he was tortured, not because he was an Alevi or for any other Convention ground, but because he was in detention and accused of a crime - make it impossible causally to connect the sequence of events in such a way as to admit of the conclusion that in their totality they can properly be said, in such fear as they might inspire, to be related relevantly to a Convention ground. The torture finding in particular is indifferent to the particular reasons for Mr Ovali's detention. On that finding it would seem to matter not what the nature was of the crime with which Mr Ovali was accused; to matter not what his beliefs, etc may have been. Accordingly I reject this basis for seeking to review the Tribunal's decision either under s476(1)(a) or s476(1)(e). The Religion Finding As I have noted already the Tribunal found Mr Ovali was not an Alevi. At the hearing the Tribunal put to the Applicant a series of questions it obtained from a document, "The Historical Development of Alevi Culture and Beliefs", published by the Melbourne Alevi Cultural Centre. The document was not in evidence; it was not put explicitly to Mr Ovali; and its provenance and authority are not known. His responses to the Tribunal's questions appear in large measure to have induced the conclusion that he had "only a rudimentary knowledge of Alevism". Having regard to his education and training the Tribunal reasoned that: "such a person [as Mr Ovali] would be able to give at least the most common aspects, beliefs, rituals and other matters about their religion, the Applicant in this case was not able to do so and much of the information he provided the Tribunal was not correct. The Tribunal finds that the Applicant is not an Alevi. It may be the case that the Applicant was born an Alevi but he has never practised his religion. Indeed in his initial application he refers to himself as Shi'ite and while the above publication talks of some vague similarity with the Shi'ite beliefs, this vague similarity refers back to many centuries ago." The Applicant's submissions are first that, in making this finding, the Tribunal set itself up as an expert while not possessing the requisite qualifications for the purpose; and secondly, by the use it made of the Cultural Centre's document it conducted an irregular inquisitorial inquiry. The composite burden of these submissions is that the Tribunal acted otherwise than as required by the Act, s420(2)(a) and (b). The Respondent's submission is that fact finding was the Tribunal's responsibility; because Mr Ovali maintained he was an Alevi, it was entitled to put basic tenets of the Alevi faith to him to test his evidence and there was nothing improper in using the Cultural Centre document to inform its questioning; and it was entitled in any event under s425(1)(b) to obtain such evidence as it considered necessary and the interrogation it engaged in was an aspect of that process. While I consider that the Tribunal's actual findings in this border on the cavalier - I instance the finding that Mr Ovali "has never practised his religion" and inquire wherein is the evidentiary justification for it - I am at best confronted with no more than an arguably incorrect fact finding: cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 esp at 356-357. Given the non-adversary nature of the processes of the Tribunal, but its responsibility to make findings while not being obliged to accept uncritically the claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; it is not inappropriate that the Tribunal of its own motion takes steps to test an applicant's evidence when it considers that it is competent to, and capable of, so doing. If objection is to be taken to the Tribunal's actions in this case, it cannot be to the process of questioning of the applicant in which it engaged. Rather it can only be to the conclusions it drew from that process. And that, as I have indicated, could result in no more than the exposure of a mistaken fact finding. There is not in my view foundation here for a claim that the standard imposed by s420(2)(b) has been breached. It is unnecessary in consequence to enter upon any consideration of the judicial opinions expressed in, and subsequently on, the decision in Eshetu v Minister for Immigration and Ethnic Affairs, above. I reject this basis of challenge to the Tribunal's decision. The order of the court, then, will be that the application be dismissed with costs.