Duzdiker v Minister for Immigration & Multicultural Affairs [2000] FCA 391

FEDERAL COURT OF AUSTRALIA

Duzkiker v Minister For Immigration And Multicultural Affairs [1999] FCA 391

DERVIS DUZKIKER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 311 of 1999

MADGWICK J 31 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 311 OF 1999

BETWEEN: DERVIS DUZKIKER

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 31 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The parties are to pay their own costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 311 OF 1999

BETWEEN: DERVIS DUZKIKER

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 31 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application for the limited form of judicial review available under the Migration Act 1968 (Cth). The applicant is a Turkish national who here seeks review of the decision of the Refugee Review Tribunal ("the Tribunal") not to alter the unfavourable decision of a delegate of the Minister. 2 The applicant's case was heard together with that of his brother, Mr Ali Duzdiker. Reference should be made to my reasons for decision in that case (Duzdiker v Minister for Immigration and Multicultural Affairs [2000] FCA 390), a copy of which, for convenience, is attached hereto as an appendix. As counsel for both brothers said, the factual claims made by each of them were similar. They both claimed to have a well-founded fear of persecution for reasons of religion and/or political opinion. 3 As counsel for the applicant put it, the principal differences were that the Applicant, being five years older than his brother, commenced participation in May Day demonstrations at an earlier time than his brother, and always remained with his family in Antakya until he went to Saudi Arabia in July 1994 (his brother moved to Istanbul in approximately 1985). The particular factual claims he made were as follows: (i) in May 1978 he participated in a May Day demonstration, and was subsequently detained and interrogated by the police; (ii) in June 1981 he commenced his involvement with an Alevi Cultural Association in Antakya. He was active in that organisation and was often detained and beaten by the police as a result; (iii) he continued to participate in May Day celebrations, and he was often detained by the police and beaten; (iv) in 1992 the police raided the family house on a number of occasions, took him to the police station and questioned him about his involvement with the association referred to in (ii) above; (v) in July 1993 he participated in a demonstration shortly after the massacre of Alevis in Sivas, was subsequently arrested and accused of being a separatist and tortured; (vi) in September 1993 the family's home was again raided by the police and he was taken to the police station; (vii) in July 1994 he travelled to Saudi Arabia, and sought to arrange for his family to come to Australia; and (viii) in his absence, the local authorities continued to harass his wife and in February 1996 he returned to Turkey and divorced his wife so that the police would leave her alone. 4 Some of the factual and other material included in the Tribunal's reasons is identical or nearly so with matter that appears in the decision in Mr Ali Duzdiker's case. Specific findings about the applicant included that: (i) he was an Alevi; (ii) he was a member of an Alevi Cultural Association in Antakya and that he was detained and beaten in 1981; (iii) he attended May Day marches annually from 1985 to 1994 in Antakya, and that often police detained marchers including him, and that he was detained on these occasions for up to a day and beaten and that this was due to his perceived political opinion being politically left of centre; (iv) the police raided his home in 1992; (v) he attended a protest against the Sivas killings in July 1993 in Antakya, and was subsequently detained and tortured by police; and (vi) the police came to the family home twice more in 1993. 5 In relation to the Antakya police, the Tribunal appears to have considered that there was a lack of ongoing "interest" or "suspicion" about his activities after 1994. The Tribunal ultimately expressed itself as follows: "I conclude that Mr Duzdiker has exaggerated the level of increased interest in him by the Antakya police, being motivated by his religion or political opinion, and consider that the chance is remote he would face treatment amounting to persecutionfor a Convention reason if he returned there. Nevertheless, I have considered whether he could relocate within Turkey." 6 Most of the submissions were in principle identical to those in Mr Ali Duzdiker's case. For the reasons given in Ali's case, I reject them as providing any ground for judicial review by this Court. 7 Some additional remarks are however necessary or desirable. It was submitted that the Tribunal had failed, by misunderstanding the notion of "persecution", to consider the applicant's claims properly. In particular, it was said that the Tribunal member had: (i) failed to comprehend that in the past the applicant had been persecuted; (ii) failed to consider what the position was, putting aside certain claims of recent police adverse interest in the applicant, which she found to be exaggerated; and (ii) misunderstood the essential nature of his case; this was not that the police had him continuously in mind as a potential subject for Convention persecution, but rather that on occasions of political significance the applicant would be one of their usual targets for victimisation. 8 In my opinion, none of these criticisms can be sustained. I deal with them seriatim. Some of the Tribunal's remarks were, as submitted by counsel for the respondent, by necessary implication based on the assumption that the applicant's past mistreatment by the police did amount to persecution. The Tribunal member did in fact consider the applicant's position upon the basis that his exaggerations were as claimed. The Tribunal member's failure expressly to consider the matter on the basis that the applicant was merely one of a class of leftist sympathisers apt to be targeted sporadically by police was in the circumstances both understandable and legally excusable. The applicant's real case was that the recent harassment of members of his family showed that he was actually a continuing police target. There was nothing in the evidence, given the Tribunal's findings, that clearly raised a discrete question as to whether there was a reasonable chance that in the foreseeable future the applicant would be otherwise persecuted. Therefore, no particular inquiry along these lines was compelled. The case differs in this respect from Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287. In any case it is implicit in the Tribunal member's approach that she did not accept that the applicant was at any real and unavoidable risk. She evidently felt that the applicant could avoid any risk without doing such harm to his conscience that his human dignity, which the Convention aims to protect, would be significantly impaired. 9 For these reasons the application will be dismissed. However, for the reasons given in Mr Ali Duzdiker's case, there will be no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.