AUSTRALIA: Asylum seeker family face deportation to certain persecution 

AUSTRALIA: Threat of deportation of asylum seekers; failure to consider plight of asylum seekers; lack of impartial refugee assessment; failure to respect international obligations
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Dear Friends,

The Asian Human Rights Commission (AHRC) has received information from the Asylum Seeker Resource Centre (ASRC), a local organisation, that Mr. Huseiyin Duman and his family are at risk of being returned by the Australian Government to the Turkish Republic of Cyrus (TRNC) where they face certain persecution. This contravenes Australia’s obligations under the Convention relating to the Status of Refugees and other international instruments, including the Convention on the Rights of the Child.

Mr. Huseyin Duman is a Kurdish asylum seeker originally from Turkey. He has spent most of his life in the predominantly Kurdish village of Malatya in the TRNC. His father was Turkish and his mother Kurdish. He was married in 1998 to his wife, who was born in the same town as him and was also a Kurd. They left TRNC because they feared persecution by the police and military on account of their political belief and ethnicity. Mr. Duman has previously been arrested, detained and tortured in the TRNC and suffered a history of persecution and mistreatment due to his ethnicity that has spanned approximately a 20 year period. There is also an outstanding warrant for his arrest in Turkey for not completing his military service.

Mr. and Mrs. Duman arrived in Australia on 10 December 2000. On 16 January 2001 they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958. On 30 March 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas and on 30 April 2001 the applicants applied for a review of the decision. On 31 August 2001, the Refugee Review Tribunal (RRT) affirmed the decision not to grant protection visas. Since then there have been substantial concerns that Mr. Duman was denied a fair hearing by the RRT and was subjected to a denial of procedural fairness, natural justice and an impartial hearing. The Victorian Foundation for Survivors of Torture has since made a written complaint to the head of the RRT regarding the treatment of Mr. Duman’s case.

In particular, while Mr. Duman is undeniably ethnically Kurdish, identifies as Kurdish and has lived his entire life as a Kurd, the core basis of rejection of Mr. Duman’s application by the RRT was the fact that only one of his parents was Kurdish, and thus he could not be considered Kurdish. This was clearly unreasonable, especially given the revered leader of the Kurds, Ocalan, himself only has one Kurdish parent. Mr. Duman subsequently sought to appeal to the Federal Court which was unsuccessful, followed by two requests to the Minister under section 417 following judicial appeals, each of which were unsuccessful. Mr. Duman is currently in the process of making his third appeal to the Minister and faces deportation should this final legal recourse fail him. The Minister of Multicultural and Indigenous Affairs is granted the right to intervene in any case where there are ‘unique and exceptional circumstances’. Mr. Duman is currently in the process of making his third appeal to the Minister and faces deportation should this final legal recourse fail him.

HISTORY OF MISTREATMENT

Mr. Duman suffered a long history of harassment, persecution and torture in the TRNC due to his Kurdish ethnicity. At school he was discriminated against and suffered both verbal and physical abuse from students and teachers, being insulted, beaten and even suspended by the principal for writing an essay about the inhumane war being waged against the Kurds in Eastern Turkey. On one occasion during his last year at high school he intervened to help a student who was being attacked by four students. The police were called in to break-up the fight and everyone was taken to the police station. He found out later that the boy he had helped was also Kurdish and his attackers told the police that the boy and Mr. Duman were Kurdistan Worker’s Party (Partiya Karkerên Kurdistan or PKK) sympathisers and terrorists. Whilst the attackers were released, Mr. Duman was held for six to seven hours and was interrogated and beaten by the police.

His hopes to attend university were truncated when his secondary school’s administration delayed the process of issuing him the diploma required for enrolment. Because of this delay, he could not go to university immediately after school and was required by law to join the military service. As the military was involved in the fight against the PKK, the Turkish army commanders’ attitude towards Kurds was openly negative and derogatory. While Mr. Duman tried to go unnoticed, he would not deny his Kurdish ethnicity when asked and, as a result, suffered beatings, solitary confinements and threats from an ad hoc military court warning of “accidental” deaths and “suicides” that sometimes happened to soldiers. In the months before he was finally discharged, Mr. Duman repeatedly suffered physical and verbal aggression from his commander. He was stripped of his rank and was sent alone on border duty without ammunition. Unlike all other soldiers at his stage of training who were winding down as they got ready to be discharged, Mr. Duman was assigned to very heavy training, denied all normal leave and was not allowed to see his family when they went to visit.

After military service, Mr. Duman sat the entrance exam for employment in government services and did well. However, he was rejected from several government positions after having interviews because of his Kurdish background. When he finally got a job waiting tables at the Marmaris hotel in Lapta in 1994, one of the commanders from his military post recognised him and refused to be served by him. He was fired the next day without explanation.

In April 1995, as he returned to his village from work at a new hotel, he noticed there was a fire that was burning towards the village and threatening the primary school. He tried to prevent the fire from reaching the school but did not succeed. When the police and soldiers arrived they detained him, among others, suspecting that the fire had not been accidental and hinting that it had probably been set by a Kurd. Mr. Duman was interrogated and verbally abused at the police station. When he hinted that the attack on this predominantly Kurdish village could have been done by people who hated Kurds, he was severely physically and verbally abused over the course of five days and finally dumped in the outskirts of the village after he showed signs of being extremely sick. Because of this incident, Mr. Duman lost his job and entered into a serious depression. He felt that he had repeatedly been discriminated against when looking for jobs in the government and public service sectors, but when finding jobs in the private sector he had lost them, whether directly or indirectly, because of his Kurdish background.

On one occasion in 1996, Mr. Duman was taken by police along with other people from Malatya and driven to an area where Greek Cypriots were having a demonstration, in order to drum up a counter-demonstration. The police instructed him and the others to throw rocks at the Greeks. When Mr. Duman and other Kurdish friends of his refused to participate in the ethnically based demonstration, they were beaten with batons, taken to the police station in Nicosia and put in separate cells. He was interrogated about his organisational affiliations and about why he supported the Greeks. When he said he did not discriminate against any nationality or ethnicity, he suffered severe abuse until the point of blackout. He was then taken to a cell and subsequently dumped in the outskirts of the village after being told that they would be keeping an eye on him. In the summer of 1997, Mr. Duman was caught up in the middle of a fight at university between a group of Kurdish friends and right-wing nationalists. Once again the police showed up and detained him to interrogate him about his association with political organisations. When he denied any such knowledge he was again tortured.

In April 2000, Mr. Duman reported to military headquarters for the required annual three-day military training refresher course. Upon arrival to one of these courses, the commander conducted a roll call and told Mr. Duman to step aside under the argument that the Kurdish would be doing their exercises separately. Mr. Duman was then subject to abuse, humiliation and threats throughout the course. When the next army refresher course was due, Mr. Duman thus decided not to attend due to his fear of further humiliation and persecution. He later received a court summons because of his failure to attend the course. Because of his fear to face this situation, Mr. Duman decided, along with his wife, that they would leave TRNC. They arrived in Australia in December 2000.

CURRENT PLIGHT

Both Mr. and Mrs. Duman suffer from poor mental health

Mr. Duman has been assessed by his treating psychologist (for the past six years), Mr. Leo Sexton from the Victorian Foundation for Survivors of Torture, as suffering from ‘chronic Post Traumatic Stress Disorder due to a long history he has reported of harassment, persecution and torture in the TRNC. He also suffers from a chronic Depressive Disorder, which is maintained and exacerbated by the asylum seeking process’. Mr. Sexton is concerned that Mr. Duman may try to kill himself if faced with the prospect of having to return to Turkey. He further states, ‘I believe any further recovery is not possible until he and his family are assured that they will not be returned to a State where they have grounds to fear persecution, torture and possibly death’.

Mrs. Duman too suffers from serious mental health problems and it is vital that she remain in Australia to continue to receive treatment and counselling.  She was first diagnosed with post-traumatic stress disorder in March 2004 after a minor tram accident in November 2003 when she accidentally dropped her child as the tram braked unexpectedly. Her treating psychiatric since January 2005 Dr. Suresh Sundram notes that the trivial event triggered suppressed fears and anxieties about her family’s safety and welfare which she had experienced prior to their arrival in Australia arising from the real belief that her husband may be killed and the family imprisoned by the Turkish authorities. Additionally, Psychologist Dr. Joan Beckwith who sees Mrs. Duman on a weekly basis notes her condition can also be attributed both to the unsure circumstance she has been in regarding her refugee status and Mr. Duman’s own psychological problems and preoccupation with the struggle for asylum, “As the determination process has moved through its phases, there have been times when both Mr. and Mrs. Duman have been responding to their distress in such different ways that neither has been able to support the other.”

Australia’s obligations under the Convention of the Rights of the Child

Mr. and Mrs. Duman now have a daughter Ozlem Duman, who was born in Australia on 10 July 2002. Australia being a signatory to the Convention of the Rights of the Child (CROC) has an obligation to care for Ozlem’s well-being. Removing Ozlem from the current environment to Turkey or TRNC where she and her parents’ personal security, human rights or human dignity may be jeopardised is in breach of the Convention. According to her treating psychiatrist, Associate Professor Suresh Sundram, Mrs. Duman if faced with the prospect of having to return to Turkey, it would be highly probably that she would relapse and that in such a state ‘Ms. Duman would be severely compromised in her capacity to care for her daughter placing the child at risk of physical neglect and psychological harm’.

RISKS FACING THE DUMANS

Given the 20 year history of persecution and mistreatment Mr. Duman suffered as a Kurd in both Turkey and TRNC and the continuing reports of violence against Kurds in both countries, significant threats to the Dumans’ personal security, human rights and human dignity exist should they be removed from Australia and forced to return to Turkey or TRNC.

According to Article 33 of the Convention Relating to the Status of Refugees, no refugee shall be expelled or returned to territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. Australia therefore has a responsibility as a contracting party to this Convention to protect the Duman family by retaining them in Australia.

Further threats to mental health

Mr. Duman visibly displays the symptoms of serious physical and psychological damage and his mental health would be further threatened if he were forced to return to Turkey or TRNC.  Furthermore, Mrs. Duman’s treating doctors are both unequivocal in the view that her mental health will be jeopardised upon her return to Turkish controlled area and her ability to properly care for her daughter Ozlem seriously compromised and placed at risk.

Danger of arrest

There exists an outstanding warrant for Mr. Duman’s arrest on account of his failure to attend his annual military service. He believes that he will be arrested upon his return and subjected to further torture and persecution while in the custody of the military.

Danger of persecution based on Kurdish ethnicity

International and national reports from Turkey continue to highlight the current poor state of human rights and the continued oppression of Kurdish people in Turkey. Indeed Mr. Duman was previously arrested, interrogated and detained on numerous occasions by the Turkish and TRNC police due to his political involvement in support of Kurdish people. Amnesty International’s 2004 report regarding the situation of Kurds in the Turkish Mainland found the oppression of Kurds in Turkey is such that it almost amounts to a complete denial of the existence of their ethnicity. There are few country information reports available regarding treatment of Kurds in TRNC but as the area is controlled by the same government, it is reasonable to assume that the circumstances experienced in Turkey extend to the controlled territories of TRNC.

Danger of torture

Substantial grounds exist for believing that Mr. Duman faces high possibilities of being tortured in captivity if he is returned to his country. Such treatment would be in contravention of the International Convention Against Torture, Art 3.1.

Several authorities testify that torture remains a serious concern in Turkey. In a recent decision (30th of September 2004 – RRT Reference: N04/49229), the RRT found that there has been no genuine decrease in torture in Turkey. Furthermore, the 2004 US Department of State reports the continued widespread use of torture specifically against Kurds, “members of the security forces continue to torture, beat and otherwise abuse persons regularly, particularly in the southeast. Security forces most commonly tortured leftists, and Kurdish Rights activists.”

Of great significance is the fact that Mr. Duman strongly identifies with the Kurdish cause and feels compelled to speak out against injustice or the abuse of others particularly where the rights of Kurds are under attack. Mr. Duman is also suspected of supporting the PKK thus placing him at great danger of being detained and tortured.  Given that Mr. Duman is Kurdish, will publicly assert his Kurdish identity and have to face a military court for fleeing the country rather than complete his military training it is likely that he will be captured and tortured by authorities.

SUGGESTED ACTION:

Should their third appeal to the Minister be refused, Mr. Duman and his family will face the real risk of persecution on the basis of their nationality as Kurds and on imputed political opinion and social group grounds. In particular, as a Kurd who has a profile and is of adverse interest to the authorities, Mr. Duman is at risk of his personal safety and security. Furthermore, Mr. Duman faces the threat of imprisonment and torture due to the outstanding warrant for his arrest for not completing military service.  Under such circumstances, the fragile state of Mr. and Mrs. Dumans’ mental health is likely to deteriorate, posing threats not only to their well-being but also to their daughter Ozlem’s well-being, as the child will be placed at risk of physical neglect and psychological harm.

To ensure that the above threats do not become a reality for the Dumans, we call for your help in writing letters of petition to the Minister to accept the Dumans third and final recourse at the Australian legal system.  In doing so you can show your support for acceptance of the Dumans’ humanitarian submission.

 

 

To support this case, please click here: SEND APPEAL LETTER