Demirci v Minister for Immigration & Multicultural Affairs - [1999] FCA 652

FEDERAL COURT OF AUSTRALIA
Demirci v Minister for Immigration & Multicultural Affairs [1999] FCA 652
ALI DEMIRCI V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 289 OF 1999
THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
5 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 289 OF 1999

BETWEEN:

ALI DEMIRCI
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

JUDGE:

THE HON JUSTICE MARCUS EINFELD AO

DATE:

5 MAY 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant appeals from a decision of the Refugee Review Tribunal given on 31 March 1999. He is a citizen of Turkey who arrived in Australia in July 1997. His application for asylum was not made until 21 January 1999 and was refused by a delegate of the Minister on 1 February. Thus in terms of the legal procedures this case must set some sort of record for the speed at which the whole legal process has been able to be covered. I am not informed as to why the applicant waited for 18 months or so to make his application but it does not now seem to be particularly relevant.
The application for review to this Court gives no information at all as to the grounds upon which the applicant seeks to have the decision of the Tribunal reviewed. The application states only that the decision was unfair. The applicant has informed me today that the application form was completed on his behalf by a solicitor who was at the Villawood Detention Centre visiting persons, and that all he did was to sign it. The typed form contains no name of any solicitor and, as the applicant speaks no English, it is obviously not his typing. If it is true that a solicitor drafted this application, and the name of the solicitor was actually given by the applicant in court, although it is not familiar to me, then this matter should be referred to the Law Society for consideration of that solicitor's professionalism. The application is quite useless. It has been quite unprofessionally completed and in no way assisted the applicant in his case today. Moreover, it has resulted in significant public expense in bringing Mr Demirci from Villawood and in convening a court with all its paraphernalia to hear what is presumably put forward as a serious case of a claim for refugee asylum.
The other relevant matter to consider in this connection is that the applicant who speaks Turkish, and apparently does not speak or read English, did not know at the commencement of this hearing what the Tribunal had in fact found in his case and why it had found against him, because the judgment of the Tribunal had never been translated to him. Although he had appeared before the Tribunal and apparently made statements to it both orally and subsequently in writing, all of which had been interpreted, he says that he did not know that he could have requested the judgment to be interpreted into his own language.
I first gave consideration to adjourning the hearing to enable the interpretation to take place, but upon reflection, it seemed to me that this would be a further expenditure of public money which was not justified by the interests of justice. Rather than that, I asked the applicant to outline his claim for refugee status through which I was enabled to determine what sorts of things would and could have been said if the application had been properly completed, and what did arise from the proceedings before the Tribunal and its determination that might have given the Court an opportunity to intervene if there were adequate grounds.
Although this process is in general terms completely unsatisfactory, the Court must keep in mind the comparison between the likely chances of success if an adjournment were granted, and the cost of any adjournment, as well as the fact that the applicant has apparently been in detention now for a very considerable time. Having arrived in the country on a false passport, it seemed to me that I was well able to understand any available claims of defects in the Tribunal's judgment by listening to the applicant's claim for refugee status.
It will appear further from my next comments as to why that course appeared to me to be justified. The basic claim made by the applicant to the Tribunal was that together with his brothers and other members of his family he has been a supporter of left wing theses and ideologies in Turkey since he was at school. A local populist leader, named Dev Genc, was apparently his and his family's hero and he claimed that from school times he was an avid and vocal supporter of this man. As a consequence, the applicant says, he was treated badly, even violently, from as early as 1979 when he was working in a fruit and vegetable shop owned by his father. Subsequent to that period he spent a couple of years in the Turkish military, after which he worked at the father's shop again, and then as a seaman.
The applicant told the Tribunal that over the period between his first arrest in 1979 for writing graffiti on walls, to the time when he left for Australia, he was detained on some four occasions in all. The Tribunal had some doubts about the credibility of these and other claims made by the applicant but, for present purposes, I am prepared to proceed on the basis that they were, at least in general terms, correct. The applicant also told the Tribunal that as a consequence of his family's expression of left wing political views, the Turkish authorities were at all relevant times interested in him and his family's activities.
He gave the Tribunal some examples of this interest and pointed out that one of his brothers had been detained on many occasions and that another brother was detained and tortured in 1992. He stated that both suffered permanent consequences of this treatment. While the applicant was a seaman, he spent time in Portugal and Belgium but did not make any claim for refugee status in either of those places, although both countries adhere to the same UN Convention on Refugees as is recognised by Australia. His reason given to the Tribunal for not seeking refugee status in Belgium was that his father was sick at the time and he thought he should return to Turkey.
The reason he gave for not seeking refugee status in Portugal was that it was cold and he wanted to find an English-speaking country. I am not quite sure how he is able to co-relate those two statements. One of the so-called leading English-speaking countries, Britain, is certainly colder than Portugal. The applicant nevertheless claimed that although he spent considerable time in Turkey without being harassed by the police, he was of the belief that the police were biding their time and trying to use him as an informant.
There is one other event that needs to be mentioned. The applicant claimed that in 1996 he had gone to a place called Sultanahmet for sightseeing when two men approached him claiming to have known him since he was writing graffiti several years before. They apparently invited the applicant to join them but he refused. A week later he was called to a police station and asked if he lived in a particular suburb which was known to contain a significant Kurdish population element. The applicant told the Tribunal, albeit long after he had completed a number of documents, that these men spoke with a Kurdish accent.
As I stated earlier, the Tribunal made a review of statements made by the applicant, both in writing and orally to the department and to the Tribunal itself, and went to some pains to draw the significant distinctions that existed between many of these statements; inconsistencies about the nationality or ethnic origin of the men who approached him in 1996, the number and nature of the occasions when he was detained, the treatment of members of his family by Turkish government authorities, and his degree of involvement in left wing political activism.
From these inconsistencies the Tribunal drew a most adverse view about the applicant's credibility. Amongst other members of the court, I have previously had occasion to refer to the apparent overuse of inadequately justified findings on credibility by the Tribunal as a ground for rejecting claims for refugee status. On the other hand, in this case the Tribunal has been careful to draw its conclusions on credibility, not from different statements made to it, or even to departmental officials earlier, or on small or peripheral matters, but between statements made at a time when it would have been expected that the applicant would have drawn attention to the matters upon which he now relies but did not do so and the occasions before the Tribunal when he did so.
In particular, the men who approached him in the street in 1996 were first described as members of an unnamed left wing group. Later they were people who had Kurdish accents and later still they were described as Kurds or Kurdish. The applicant's claim in this connection was that having been approached by these people, he would face even worse treatment upon his return to Turkey because of the hostility of the Turkish authorities to Kurds, especially since the arrest in February of Abdullah Ocalan, the head of the PKK, and the subsequent arrest of a large number of Kurds, which has considerably has worsened the atmosphere and increased his danger.
Even if it were true, despite his earlier statements, that the people who approached him in 1996 were Kurds, I share the Tribunal's conclusion that the likelihood that this would give rise to an anti‑Government pro-Kurdish profile of Mr Demirci is far fetched indeed. The Tribunal's decision was actually that the allegation itself should be rejected as being not credible but I think that even if it were accepted, it would represent no basis for claiming a genuine Convention-based fear of persecution.
The Tribunal went on to deal with the other subject matters and the discrepancies that arose in them as well. The same conclusions can be drawn in each case. Even if the applicant had been detained on a number of occasions as a consequence of political activities, this could only reflect the particular consciousness of the authorities at the time, in the particular district where he was at the time, of the impact on their or Turkey's interests of the views being expounded by the applicant. It would be impossible, for example, to define such a person as a refugee without also determining, even without an application, that all other persons in Turkey who held the same views and who were at one stage or another publicly espousing their views would also be refugees if they arrived in this or any other country recognising the Geneva Convention.
The evidence before the Tribunal, and common knowledge reveal, that Turkey has a parliament elected by general franchise and operates generally speaking in accordance with reasonable standards of democratic behaviour giving the public access to their elected representatives. It has an independent judiciary with apparently transparent procedures and other elements of liberal democracies even if some of its procedures are not used in Australia. Its problems would not of themselves, in my opinion, permit the fact of detentions for political activity to be sufficient to constitute a person as a refugee. More evidence would be needed if that conclusion was to be reached.
For example, there is no evidence in this case as to whether one or more of the applicant’s detentions was due to the possibility that it is an offence to write slogans on walls whether reflecting left, right or any other ideology. It is, as it happens, an offence in Australia to append a photograph of an actual or budding politician to a telegraph pole for the purpose of advertising a candidacy for a forthcoming election. Persons found doing such a thing may be arrested and charged, or may have a summons issued against them. A fine could ensue which if not paid may lead to imprisonment. In the case of multiple offences, it is even possible that an offender might be detained or go to gaol especially if previous fines had not been paid. I do not know what the law is in Turkey in this regard but I can say that short terms of detention for writing political slogans on walls is not, in my view, a sufficient grounding for a fear of persecution of the kind referred to in the Convention.
So far as concerns the other two issues dealt with, that is, the treatment of the applicant's family and the degree of the applicant's involvement of political activities, the Tribunal's conclusions in each case were that the allegations made should not be believed because of prior inconsistencies and contradictions. Those are matters entirely for the Tribunal and not for the Court unless the evidence cited to and by the Tribunal could not conceivably give rise to any such conclusion. Even if I proceeded on the basis that the claims should not have been rejected on such a basis, there would still be no ground for finding the applicant to be a refugee. I would go further. Even if all of the matters rejected on the grounds of credibility by the Tribunal were factually based, it would still be insufficient to ground a conclusion that the applicant entertained a genuine fear of persecution based on actual or imputed political opinions as required by the Convention.
Those are the ultimate reasons why it did not seem to me to be necessary to adjourn this hearing in order to have the judgment read to the applicant in his own language. Whilst there may be individual criticisms of the Tribunal’s rejections of some of his statements as being entitled to no weight, my view is that even if they were entirely credible and his story had been entirely accepted by the Tribunal, it would still not entite the applicant to the overturning of the Tribunal's decision or the granting of a protection visa. For those reasons the application will be dismissed.
[AFTER DISCUSSION]
In my view this case has never had any merits at all. It seems to be an appropriate case in which the Minister should obtain an order for costs. The application is dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.
Associate:
Dated: 5 May 1999

The applicant appeared in person.

Counsel for the Respondent: Mr J. D. Smith

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 5 May 1999

Date of Judgment: 5 May 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 289 OF 1999

BETWEEN:	ALI DEMIRCI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	5 MAY 1999
PLACE:	SYDNEY

The applicant appeared in person.
Counsel for the Respondent:	Mr J. D. Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 1999
Date of Judgment:	5 May 1999