1413010 (Refugee)

[2015] AATA 3166

1413010 (Refugee) [2015] AATA 3166 (16 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413010

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Rodger Shanahan

DATE:16 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 16 July 2015 at 11:55am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Turkey, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 2 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

   CLAIMS AND EVIDENCE

   Protection Visa Application

4. The applicant is an ethnic Turkish of the Alevi faith.  He arrived in Australia [in] July 2009 on a student visa and claimed that he had been intimidated, persecuted and threatened because of his Alevi identity.  He had a Sunni girlfriend when he was [age] and her family forbade her from seeing him; one day her family saw him on the street and threatened him and the relationship ended.

5. He claimed that a religious studies teacher at school humiliated him because of his Alevi faith and that he subsequently hid his faith to avoid this.  He went to university in a different city to his home and stayed in a dormitory under the control of Sunni students; they would gather students at night and deliver religious sermons.  He was intimidated into selling their magazines or paying for the ones he didn’t sell.  He began to grow a beard but was told to shave it off as was a symbol of masonism.  When he refused they attacked him in his room, beat him and shaved off his beard forcibly.

6. He claimed that he would not have the freedom to choose his own way of life in Turkey, as the government is poised to adopt more forcefully Islamist policies and he did not want to have to hide his religious identity.  When he returned to Turkey for two weeks in 2013 he noticed that the atmosphere of intimidation had become worse, and he feared if he returned he would be attacked and killed.

   RRT Hearing

7. The applicant claimed that he would suffer material and moral harassment if he were to return to Turkey.  Asked to clarify what he meant, he claimed he would be put-down and face low-level harassment.  He claimed it may not have been assault but this fear was always there.  He claimed that he had been bashed in 2003.

8. He feared this occurring from Sunni Muslims because he was an Alevi and he didn’t fast during Ramadan.  He had no other claims and had this fear for most of his life.

9. Sunnis claimed that Alevis were incestuous.  During school he had suffered segregation and in 2003 he was bashed at university because of his type of beard worn by Alevi youth.  He was staying in a state dormitory controlled by a fascist nationalist party that was violent and they didn’t want him to display his identity.  He was in the dormitory for 5-6 months before he was bashed.

10. People could wear beards on campus if they wore rich and didn’t stay on campus.  Asked how an Alevi beard differed from a normal beard, he claimed people could tell he was Alevi from his movements, speech and beard; he was identified not just because of his beard.  Nothing occurred to him between 2003 and when he left Turkey in 2009.  Asked why he thought something would happen when he returned, he claimed in Gezi Park six Alevi had been killed.  While the attacks weren’t regular they did happen spontaneously.

11. Asked why he in particular would be targeted, he claimed it was because he was a person who didn’t hide his identity and would express himself.  He had to live in a Sunni society.  He had been back to Turkey for two weeks, two or three years ago.  During that time he was sworn at by a high school student who insulted his mother.  He had been with his cousin and had been loudly discussing political issues.  He was asked why he thought he was targeted because of his religion and why swearing was considered serious harm.  He claimed he was an emotional person.  Nothing else happened to him while he was there.

12. His sister had married a Sunni man and his family were opposed to it.  She had a hairdressing shop and took it from her.  His family were demanding that he return to Turkey to do something about this, and these matters never ended well.  Asked why he couldn’t go to Istanbul or Ankara if he were to return given he was an adult with free choice to go anywhere in Turkey he chose.  Protection should be a last resort and he should avoid serious harm if at all possible.

13. He claimed he would be attacked during Ramadan because he smoked and would eat.  Asked if he had any independent country information to support this claim given the Tribunal was unaware of this.  He claimed he would try to find some.

14. It was put to him that country information indicated that Alevis were generally free to practice their faith and show their identity.  While there may be low levels of discrimination, there was a low risk of violence which was inconsistent with what he was claiming.  He had arrived in Australia in July 2009, returned to Turkey four years later for a holiday and on return didn’t apply for another three months, which was only 10 days before his student visa expired.  The Tribunal had concerns that he never had and would not suffer serious harm and had only applied for protection for economic purposes as his visa was about to expire.

15. He claimed he had returned to Turkey because his mother had a health problem and suffered cancer.  He was asked for documentation such as hospital reports that would support this and he claimed he would try to get some.  He had only returned because of his mother who was better now after surgery.  His delay on submitting was because he needed to do research.  It was put to him that he had been in Australia for four years previously and had claimed to suffer harassment for all of his life.  His actions appeared inconsistent with someone claiming to fear serious harm.

16. He claimed his visit to Turkey had meant his memories had resurfaced which was why he applied.  It was put to him that it still took three months; he claimed he was unfamiliar with the process and needed to translate the forms.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The applicant first arrived in Australia on a student visa [in] July 2009, and returned to Turkey between [June] and [July] 2013.  His student visa expired [in] October 2013.  He applied for a protection visa [in] September 2013.  I have sighted his passport and accept that Turkey is the applicant’s country of nationality. 

18. The applicant is a [age] year old Alevi who claimed that he would be attacked and killed if he returned to Turkey. To the extent that it is relevant I have taken into account the DFAT Country Report – Turkey.

19. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

20. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his entire claim in order to be granted a protection visa.

    Faith-based Harassment

21. I do not accept that the applicant faced harassment, let alone serious harm because of his Alevi faith.  I do not accept that he lived in a university dorm controlled by Islamist students who forced them to listen to religious sermons, sell their magazines and that he was attacked in his room, beaten and had his beard shaved off forcibly.

22. To begin with he was inconsistent regarding his claim to have had his beard shaved off forcibly.  In his protection visa application he claimed that he was asked to shave off his beard because it was the symbol of masonism (folio 29), yet during his hearing he claimed he was bashed because he was identifiably Alevi as a result of his movements, speech and beard.

23. In his statement he also claimed that he lived in a dorm under the control of religious Sunni students, whereas in his hearing he described them as being members of a fascist, nationalist party.  Further, I find it implausible that he would remain in a dormitory controlled by such people for five to six months without reporting the situation to university authorities or seeking to find alternative accommodation.

24. I do not accept that the applicant had been insulted by a teenage boy when he returned in 2013, that he was threatened by the family of a Sunni girl that he was going out with when he was [age], that he would be targeted because he would have to express his Alevi identity or that he would have to become involved in a family dispute because his sister had married a Sunni man.  The claims made by the applicant regarding his fear of physical harm are inconsistent with country information that indicates Alevis are ‘..generally free to practise their faith, express their identity’ and that they ‘..suffer a low level of discrimination and are at low risk of violence.’[1] 

    [1] DFAT Country Information Report – Turkey dated 2 June 2014, p 17

25. I am not satisfied that he would become involved in a family dispute given he is free to live anywhere he wishes to in Turkey and could easily move to a major city such as Istanbul or Ankara and use his qualifications to secure employment away from his family’s city.  The fact that he has not indicated that he intends to do this would indicate that he has no fear of returning to his family’s location.  I also do not accept that he would be attacked during Ramadan because he smoked and would eat.  The Tribunal is unaware of these incidents occurring in Turkey and the applicant provided no supporting country information when asked. 

26. His actions in returning to Turkey in 2013 are also inconsistent with someone who claims that he had had fears of serious harm in Turkey for most of his life.  I do not accept that he returned to Turkey because his mother suffered from cancer and he needed to visit her.  He had not mentioned this prior to the hearing, and he failed to offer any evidentiary proof of this following the hearing even though he was requested to do so.

27. He also waited for three months after arriving back in Australia before he submitted a protection visa application which further calls into question the degree to which he feared serious harm on return to Turkey.  I do not accept that the delay was because he was unfamiliar with the process and needed to do research.  He had had four years prior to this to research his options for protection and the fact that he applied shortly before his student visa expired is indicative of someone seeking to stay in Australia for economic purposes rather than to avoid serious harm on return.  

28. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

29. Because I do not accept that the applicant was ever attacked and beaten in a university dorm, was sworn at while in Turkey in 2013, that he was threatened by a Sunni family when he was [age] or that he would become involved in a family dispute on return to Turkey, or was or would be targeted by Sunnis because he was an Alevi and wanted to express himself as such, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

30. Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

31. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

32. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

33. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

    2.        Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    3.        If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    4.        In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.