Can v Minister for Immigration and Multicultural Affairs

[2001] FCA 533

FEDERAL COURT OF AUSTRALIA

Can v Minister for Immigration & Multicultural Affairs [2001] FCA 533

DEVRIM CAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 18 of  2001

SACKVILLE J
SYDNEY
7 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N18 OF 2001

BETWEEN:	DEVRIM CAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	7 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N18 OF 2001

BETWEEN:	DEVRIM CAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	7 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“RRT”) made on 29 November 2000. The RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant a protection visa to the applicant. The application for an order of review does not specify any grounds that are available under s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”).  The applicant was unrepresented at the hearing.

2. The applicant is a citizen of Turkey, born on 30 August 1976.  He is, as the RRT found, of Kurdish ethnicity and is a Muslim.  He claimed to have arrived in Australia as a ship’s deserter in February 1999, having left Turkey on 5 November 1998.  He lodged an application for a protection visa on 6 September 1999.  That application was rejected by the Minister’s delegate on 18 February 2000.

3. It should be noted that the applicant, both before the RRT and this Court, claimed that he is entitled to residence in this country by reason of the fact that he has married an Australian citizen and is the father of two children born in this country.  He told the Court that he nonetheless wished to pursue his claim for a protection visa because he is a Kurd and fears persecution in Turkey by reason of his ethnicity. 

   THE APPLICANT’S CLAIMS

4. The applicant’s claims were outlined in a statement lodged with the Minister’s delegate and in oral evidence given to the RRT at a hearing held on 28 November 2000.  He claimed that he feared persecution in Turkey for reasons of his political opinion and his ethnic origin.  The applicant made several factual claims:

   (i)In 1992, he and two other Kurdish friends were expelled from secondary school because they were accused of sympathising with outlawed Kurdish organisations and spreading Kurdish propaganda.

   (ii)In March 1997, the applicant and four Kurdish friends were arrested by the police at a café.  They were subsequently detained, tortured and accused of being supporters of the Partiya Karkaren Kurdistan (“the PKK”) and of being terrorists.  After six days, the applicant and two of his friends were released and warned that if they were seen again they would not be allowed to live.  The remaining two friends, according to the applicant, are still in prison.

   (iii)In October 1998, the applicant and about ten “Kurdish and revolutionary friends” gathered at a residence where there was a police raid.  Most escaped, but three of the applicant’s friends were arrested.  According to the applicant, those who were arrested revealed his and other names under torture.  For this reason, he was liable to arrest by the authorities.  Fearing arrest, he and some of his friends decided they would leave Turkey.  The applicant paid $US5,000 to a broker who provided him with a passport and a seaman’s book.  This enabled the applicant to leave Turkey by ship and travel to Australia.

5. The applicant accepted that he had received a call-up notice to report for duty in the Turkish army in about November 1998.  The applicant denied that his decision to leave Turkey was because of his desire to avoid national service.  He maintained that this was only a secondary reason for leaving the country and that he had formed an intention to leave Turkey after his arrest in March 1997.  The applicant stated, however, that he did not wish to undertake military service because he would be sent to eastern Turkey to fight Kurds.

   THE RRT’S REASONS

6. The RRT indicated that it did not attach much importance to relatively minor inconsistencies in the account given by the applicant.  It found, however, that two documents relied upon by the applicant (concerning his criminal record details and an arrest order) had been “crudely manufactured to support the Applicant’s claims”.  In the RRT’s view, the fact that the applicant had relied upon forged documents indicated that he had not been the subject of an arrest order and was not wanted by the authorities.

7. The RRT accepted that, as a teenager, the applicant had been expelled from school for writing political slogans.  It noted that the applicant had not thereby been excluded from access to a reasonable education, as he had been able to complete his secondary education at another high school.  Nor had the incident led to him subsequently being targeted or penalised.  Accordingly, the RRT was satisfied that the incident did not, of itself, give rise to a well-founded fear of persecution for a Convention reason. 

8. The RRT rejected the applicant’s claim that Kurds are persecuted in Turkey and are at risk of “eradication”.  The RRT considered that this claim was not supported by the independent evidence.  It found that Kurds in Turkey, as a community, do not suffer a sustained or systemic violation of basic human rights, although it noted that this would not preclude an individual Kurd from providing evidence of particular circumstances establishing the basis for a fear of persecution on his or her part.

9. The RRT accepted that the applicant had been detained in March 1997 because of his involvement in political activities.  On the applicant’s own account, however, his involvement was minimal, and his arrest had occurred when the authorities had carried out a check of identity documentation.  The RRT considered that the mistreatment of the applicant at that time constituted persecution for a Convention  reason.  It found, however, that the incident was “opportunistic” and that the applicant had not subsequently been targeted or rearrested.

10. The RRT also accepted that there had been a police raid at a meeting in October 1998 at which the applicant was present, but rejected a causal connection between the applicant’s presence and the police raid.  The RRT was satisfied that the applicant had been able to elude the police on that occasion.  It did not accept, however, that the police subsequently obtained his name and issued an arrest warrant for him.  Nor did the RRT accept that the applicant had a particular political profile which would draw him to the attention of the police on his return to Turkey.

11. The RRT found that the applicant had left Turkey in order to evade his national service obligations.  It took the view that this was the reason he had made arrangements to obtain a false passport and to depart from Turkey illegally. 

12. The RRT also rejected the applicant’s assertion that Kurdish sympathisers were sent to fight Kurdish separatists in the south-east of Turkey.  It was satisfied that, if the applicant were to complete his national service, he would not be required to fight against fellow Kurds.  In these circumstances, the RRT was not satisfied that an obligation to undertake military service would, of itself, amount to persecution of the applicant for a Convention reason.  Nor was the Tribunal satisfied that any penalty or treatment the applicant might experience on return to Turkey, by reason of his having evaded his national service responsibilities, would amount to persecution for a Convention reason.  It had not been suggested, and there was no evidence that, penalties were differentially based on an evader’s ethnicity or motivation.

13. For this reason, the RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Turkey.  Accordingly, it affirmed the decision not to grant him a protection visa.

    REASONING

14. The applicant did not comply with a direction of the Court that he file written submissions in advance of the hearing.  In his oral submissions, he sought to challenge a number of the factual findings made by the RRT.  He asserted, for example, that the RRT was mistaken in finding that the two documents upon which the applicant relied were forgeries.

15. As was explained to the applicant, it is not open to this Court to review the merits of the RRT’s decision. In particular, the Court cannot set aside the RRT’s decision merely on the basis of criticisms of its findings on factual questions. The Court is restricted to the grounds of review specified in s 476(1) of the Migration Act.

16. None of the contentions put forward by the applicant establishes the basis for an available ground of review.  In those circumstances, I have no alternative but to dismiss the application.  The applicant must pay the Minister’s costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             7 May 2001

The Applicant was unrepresented.

Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 May 2001
Date of Judgment:	7 May 2001