Unal, Tamer & Ors v The Minister for Immigration & Multicultural Affairs [1998] FCA 1407

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 33 of 1997

BETWEEN: tamer unal

First Applicant

ergul unal

Second Applicant

benil unal

Third Applicant

AND: the minister for immigration and

multicultural affairs

Respondent

JUDGE: RYAN J

DATE OF ORDER: 5 november 1998

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS: 1. That the application be dismissed. 2. That the applicants pay the respondent's costs of the application (including any reserved costs), such costs to be taxed in default of agreement. Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 33 of 1997

BETWEEN: tamer unal

First Applicant

ergul unal

Second Applicant

benil unal

Third Applicant

AND: the minister for immigration and

multicultural affairs

Respondent

JUDGE: RYAN J

DATE: 5 november 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 18 December 1996 affirming a decision of a delegate of the respondent not to grant a protection visa to any of the applicants. The applicants, a husband, wife and child, are citizens of Turkey and entered Australia on 30 January 1996. By application lodged 29 February 1996 the applicants applied for protection visas and on 28 May 1996 a delegate of the respondent refused those applications. On 18 December 1996 the RRT affirmed the decision of the delegate. It is that decision of the RRT which the applicants seek to review.

The Applicants' Claims and Evidence For ten years before leaving Turkey, the first applicant, who together with his wife and child are Alevis, conducted a successful business installing and servicing motor vehicle accessories. In recent times the first applicant ( "the applicant husband") had commenced installing remote control devices on motor vehicles which enabled the operator to start the engine from a distance of between 25 and 30 metres. These were effectively anti-bomb devices and were installed in the motor vehicles of a large number of prominent people and journalists. After he introduced these devices, the applicant husband began to receive visits from what he claimed to be fundamentalist Muslims asking him to install similar devices in their own cars. As well, they pressed him to provide them with the codes of devices installed in other cars so that they could decommission them and continue with their bombing campaign. That, he stated, was the real reason why he had been visited by fundamentalist Muslims who asked him to provide the names of people to whom he had sold the devices. When he refused these initial overtures, he said, he was told to think about it. During a second visit, his furniture was kicked, he was verbally abused because of his Alevi religion and was again pressed to disclose the codes to enable his devices to be rendered ineffectual. After this second visit, he claimed, he started to receive telephone calls and went to the local police station to complain but the police officers disregarded his complaints, saying that they (the police) "were there in case something happened". After a time, the telephone calls increased in frequency from once to twice a week and, according to the applicant husband, the burden became intolerable when he was called at home on a silent number. As recorded by the RRT, the applicant husband stated that: ...he was told that he now did not have enough work and that the next step related to the safety of himself and his wife. The Applicant husband explained that his business had started to fall off and that on occasions there was a fundamentalist Muslim who would stand outside of his premises and turn people away when they arrived. He stated that this person was not there every day but was there on occasions. The Applicant husband claimed that on the 20 December 1995 a fire bomb was thrown at his workplace and that it was lucky that he was there as he was able to put the fire out. He stated he went to the local police station. The fire did approximately 25 million Turkish lira damage to the premises and he stated that some tapes and other equipment were burnt. He claimed that this action was done by a group that he called the IBDAC. He claimed that this group later rang him and told him that this was a warning. The applicant husband claimed that he had been generous to Alevi associations in Turkey and that, although he had been a very successful businessman in his native country, he had left everything to come to Australia. He also asserted that he had left his mother at home and had been unable to return for her funeral as a result of his fear of reprisals. The second applicant, the wife of the applicant husband, gave evidence of the situation of Alevis in Turkey and the discrimination which they suffered. She stated that, after the applicants left Turkey, their house had been broken into and their furniture broken. It was her belief that she would be killed by the fundamentalists if she returned to Turkey. She also claimed that, after her departure from Turkey, her parents had been visited and harassed and that this harassment continued until June 1996. Her father, she said, had wished to complain to the public prosecutor but did not proceed with his complaint after being told that he would be interrogated about it. After the hearing before the RRT, a further submission was made on behalf of the applicants which included a letter from the second applicant's parents stating that they had received threatening telephone calls in February 1996 after the applicants had left Turkey and that, in August 1996, they had been forced to sell their house to avoid further harassment. In the course of reviewing the evidence summarised above, the RRT observed in its reasons: The Applicant husband was asked as to why he had not mentioned anything about a fire bomb being thrown in his initial application and he stated that he did not wish to tell the authorities about it as it would have led to him being interrogated. The Applicant husband was asked why if such a serious incident occurred on the 20 December he delayed his departure until the end of January of the following year. He stated that this was because he had to keep earning money and that there was a lot of money owed to him that he had to collect. He stated that he did not know what the situation would be like in Australia and therefore he had to sort everything out before he left. Under the general heading "REASONS" the RRT's published decision included these observations: The Tribunal does not accept that the Applicant husband's shop was fire bombed in the manner that he claimed. The Applicant husband in his initial statement that was made at the time of the launching of his refugee applicationmade no mention of his workplace being fire bombed. In contrast in the hearing he stated that this event had made him very scared. In the Tribunal's view had this event occurred he would not have failed to set it out in detail in his initial application. The Applicant husband explained that his adviser at the time had told him that only a brief summary was required at this stage and that he would have the opportunity to elaborate at a later time. However even if this were the case the Tribunal does not accept that the Applicant husband would have left out such a significant event. Accordingly the Tribunal is satisfied that the Applicant husband has been prepared to exaggerate his claims. The Tribunal is confirmed in this view by the delay in departing Turkey. The Applicant husband's visa was issued on 13 December 1995 before the alleged fire bombing. However he did not depart until 25 January 1996. This confirms the Tribunal's view that the Applicant husband is exaggerating his claims and was under no threat at the time of departure. The RRT then went on to set out the contents of two cables, presumably from the Department of Foreign Affairs and Trade, dated respectively 30 October 1996 and 24 October 1995, which outlined circumstances of Alevis living and working in Turkey. The RRT then concluded: On the basis of this information the Tribunal accepts that Alevis in Turkey face discrimination and harassment. There have also been isolated incidents in the past where such discrimination has reached the level of persecution. However the Tribunal does not accept that all Alevis are persecuted. In any event the Tribunal is not prepared to accept that the Applicant husband has faced harassment in the way he described. He has conducted a successful business in Turkey which continued up until the time he left the country. He has travelled in and out of Turkey on a number of occasions in recent years in regards to his business. In the Tribunal's view whilst the Applicant husband may have faced some discrimination in the past he has not been the victim of fundamentalist Muslims as described. In view of the fact that the Tribunal issatisfied that the Applicant husband has been prepared to exaggerate hisclaims the Tribunal does not accept that the Applicant husband has been targeted by fundamentalist Muslim groups as a result of his business. In any event the Applicant husband was able to give the initials of the group but was not able to name it. The Tribunal does not accept that he has been targeted in the systematic way claimed by fundamentalist Muslims at all. Such targeting is alleged to be because of the Applicant husband's activities in installing anti-bomb devices. The Tribunal does not accept that this has anything to do with the Applicant husband's religion. The Tribunal also does not accept that such targeting would be on account of either a political opinion or imputed political opinion. In the mind of the persecutors their aim is to decode the anti-bomb alarms. The only Convention reason that such targeting could come under is that of a particular social group. However there is no evidence before the Tribunal that fundamentalist Muslims target those involved in the security industry. Accordingly the Tribunal does not accept that even if the Applicant husband has been targeted by a fundamentalist group that is for a Convention reason. Of the supplementary submission invoking the letter from the second applicant's parents, the RRT said: ...the Tribunal finds it implausible that they would only write in August 1996 of threatening phone calls that commenced to occur in February 1996. Given that August 1996 was also well after the primary decision was made the Tribunal considers that this letter is self serving and does not advance the Applicants claims. Further the Tribunal does not accept, as implied in the letter, that the Applicant wife's parents received threatening phone calls which continued well after the Applicants left and forced them to sell their home in August 1996. Whilst they may have sold their home it is implausible that they would have done so as a result of phone calls that related to the Applicant husband's business. After noting that no specific claims were made by or on behalf of the third applicant, the RRT went on to conclude that it was not satisfied that the applicants were persons to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol") and that, accordingly, the decision of the delegate of the respondent to refuse to grant protection visas to the applicants would be affirmed.