SYBB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 496

FEDERAL COURT OF AUSTRALIA

SYBB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 496 SYBB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No SAD 12 of 2005 FINN J ADELAIDE 26 APRIL 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 12 OF 2005

BETWEEN: SYBB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 26 APRIL 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be 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

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 12 OF 2005

BETWEEN: SYBB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE: 26 APRIL 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a Turkish citizen of Laz ethnicity and a Sunni muslim who, while a seaman, "jumped ship" when the vessel on which he was employed arrived at Gove in the Northern Territory. 2 He lodged a protection visa on 15 July 2004. The basis of his claim to refugee status was first and foremost that he had been obliged to enter into an employment bond which he would now have to pay since he jumped ship. He will be unable to pay it if he returns to Turkey and he will be beaten if he does not. He cannot get protection from anyone as his employer has connections with the Turkish mafia. Distinctly he referred to an incident in 2002 in which he was threatened and beaten by Turkish nationalists because he was congregating with Armenians. Further, he complained that because of his Laz ethnicity he could not freely express his religious and political views. 3 His application was rejected by a delegate of the Minister and that rejection was confirmed by the Refugee Review Tribunal ("the Tribunal"). The Tribunal concluded that neither the imposition of the employment bond nor the harm that the applicant might face in Turkey for not paying it would amount to persecution for a Convention reason. It found that the incident in which he was beaten was an isolated one and that such discrimination as the applicant otherwise was subjected to was all "petty discrimination". The Tribunal accepted country information that persons of Laz ethnicity are not discriminated against and do not suffer undue pressure and it did not consider that the racially motivated discrimination he experienced constituted serious harm amounting to persecution. The Tribunal found there was no special law punishing ship jumpers in Turkey. It equally was satisfied that the applicant did not have and would not be imputed with any political or religious views that were materially inconsistent with those of Turkey's ruling party. It was of the view that as the applicant had had repeated opportunities to seek protection on earlier occasions on his voyage, if he had a genuine belief that he was at risk of harm amounting to persecution in Turkey, he would have attempted to seek asylum earlier and in other countries which included the United States, Canada and France. Finally, it regarded his claims about restrictions on his religious and political views as not being plausible given the manner in which they had been expressed and it did not accept he had strong religious or political views in any event. 4 The application to this Court is in form defective in that it does not disclose any appropriate ground of review. It simply asserts that "the RRT has ignored my claims regarding my fear of persecution which is well founded". His accompanying affidavit merely reiterated claims which are said to found his fear of persecution. 5 I gave directions that the applicant file and serve submissions supporting his application by 8 April 2005. No such submissions were received: such matters as the applicant raised at the hearing merely reiterated his factual claims that were considered by the Tribunal. These related to ethnicity, the employment bond and alleged lack of freedoms in Turkey. Perhaps the most significant matter he raised was his understanding that anyone discriminated against on the grounds of race, religion or political opinion was a refugee. This misunderstanding of the law in this country perhaps informs his dissatisfaction with the Tribunal's decision because it is the case that he did experience some level of discrimination in Turkey. 6 Having considered the Tribunal's reasons I am satisfied that what the applicant seeks to do is to challenge findings of fact made by the Tribunal. Those findings were in my view open to the Tribunal on the evidence before it. It is not for this Court in judicial review proceedings to undertake merits review of the Tribunal's decision: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40]. 7 Given the claims made by the applicant, it is unsurprising that the Tribunal concluded that such discrimination as he may have experienced was not sufficiently serious to amount to persecution: see s 91R of the Migration Act 1958 (Cth). In any event, whether discrimination is sufficiently serious in a given case to amount to persecution is a question of fact and degree for the Tribunal: cf VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212 at [28]. 8 I can see no ground whatever which would justify this Court in concluding that the Tribunal committed some jurisdictional error in arriving at the decision it did adverse to the applicant's claim. The application should be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn .