1414437 (Refugee)
[2016] AATA 3072
•14 January 2016
1414437 (Refugee) [2016] AATA 3072 (14 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1414437
COUNTRY OF REFERENCE: Turkey
MEMBER:Luke Hardy
DATE:14 January 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 14 January 2016 at 1:08pm
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
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The [applicants] are citizens of Turkey. [The applicant] is an Alevi who claims some Kurdish ancestry. He was issued a student visa in Ankara [in] December 2009 first arrived in Australia [in] December 2009. His student visa issued was valid to [December] 2010. He was issued with a further student visa in Perth [in] December 2010 and that visa entitled him to study and work in Australia until [May] 2013. He returned to Turkey for just over a month in January 2011 to marry [the applicant wife]. He obtained a new passport, issued in Ankara [in] 2011 and valid to [2014]. He then continued his studies in Australia. He visited Turkey again for a month in August-September 2011 to arrange to bring [his wife] to Australia. He continued his studies in Australia. [In] 2014, he was issued a new passport by the Turkish Consulate in [Australia]; it is valid to 2024.
The applicants lodged their protection visa applications [in] December 2012, with [the applicant wife] included as a Part D applicant, making no claims of her own, the outcome of her application depending on the outcome of [the applicant’s] application. The Minister’s delegate refused to grant the visas [in] August 2014.
The applicants subsequently sought review by the Refugee Review Tribunal, which merged into the AAT as of 1 July 2015.
The applicants appeared before the Tribunal on 22 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
The applicants have a [child] born in Australia in 2014; he was born since the primary decision and therefore cannot be included in this review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The issue in this case is whether the applicants are entitled to protection visas either as refugees or on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
[The applicant] claims fear of Convention-related persecution for separate and cumulative reasons of being a Kurd (“race”), an Alevi (“religion”) and a conscientious objector to military service (“political opinion” and/or “religion” and/or “membership of a particular social group).
[The applicant] claims to have deferred his compulsory military service obligations when he came to Australia to study. He claims he was still subject to the deferral when he visited Turkey to marry in 2011 and when he visited there again the same year to bring [the applicant wife] here to join him. He claims that the deferral has long since expired and that he is therefore viewed by Turkish authorities as a draft evader residing abroad. He claims that in the event of return to Turkey he might be forced to undertake his conscription obligations or face jail.
The applicants’ claims are chiefly made out in the primary application form and accompanying statements, in the evidence provided to the delegate, as summarised in the primary decision record which has been submitted to the Tribunal for the purpose of this review, and in a lengthy submission to the Tribunal dated 17 December 2015. In addition to this material they have submitted a number of other documents including a letter from [the applicant’s] father and some items of independent reporting of individual instances of suicide, “friendly fire” and bullying in the Turkish armed forces.
[The applicant] claims correctly that Turkey makes no allowances for conscientious objectors and treat them simply as draft evaders. He claims he will therefore be jailed. He claims he will be physically and mentally abused in jail for reasons of his conscientious objection. He claims that his status as an Alevi will also contribute to his being abused in jail or in the event that he does undertake his military obligations. He claims that although he is an “assimilated Kurd” in Turkey, this could become known in the event that he does perform military service or in the event that he is jailed for conscientious objection and contribute to his being abused in prison. He claims there is a disproportionately high rate of suicides amongst Alevi and Kurdish conscripts and regards this as evidence of discrimination against Kurds and Alevis within the military.
[The applicant] also claims his wife is Sunni and that her family objects to their marriage as he is Alevi. He and his wife have generally suggested that the impact of this would be nothing more than a state of discomfort between themselves and her family. I interviewed both applicants about this particular claim at the Tribunal hearing and they made it very clear that they are not at risk of serious or significant harm in relation to their marriage. [The applicant wife] said that the issue is one of emotional depression with her family continuing to be in a state of denial. By apparent contrast with these claims, [the applicant’s] father, in the above-mentioned letter, evidently says that [the applicant wife’s] family is continuing to carry a “grudge”. The applicants told me at the hearing that [the applicant’s] own family has no objection to the marriage. They confirmed that their marriage would not be regarded as a mixed marriage as far as the state is concerned. Although they said that the Alevi community is more inclusive
Examination of claims
According to independent evidence, mandatory military service applies to all Turkish males between the ages of 19 and 40. However, men who have not fulfilled their military service by the age of 40 may still be drafted. After completion of military service, reservist duties apply up to the age of 40. The standard length of compulsory military service for men is 15 months.[1] [The applicant] would have been required to register for national service as of [a date in] 2004. At that time, according to information he provided in his protection visa application form, he was completing high school and commencing studies at [a] University in Ankara. He enrolled in two consecutive tertiary courses in Turkey and withdrew from both, coming to Australia shortly after quitting the second. He has submitted a translated copy of a military service deferral certificate granting him deferral of duty until [a date in] October 2011 on the explicit basis of his being a domestic student.
[1] War Resisters International, Country Report – Turkey, 23 October 2008,
As noted, when [the applicant] first departed Turkey [in] December 2009, his passport valid to [2011] bore a student visa for Australia valid to December 2010. By the time he re-entered Turkey in early 2011, his passport bore an Australian student visa valid to May 2013. This passport was evidently viewed and cancelled (“İPTAL”) by Turkish authorities in the course of authorising a a new passport for [the applicant] [in] 2011. The Turkish authorities, in February 2011, would have been alerted by the material in front of them to the fact that [the applicant] possibly intended to remain outside of Turkey at least until mid-2013, well outside the bounds of the deferral to October 2011. If they somehow permitted him to leave Turkey in February 2011 on the expectation that he should be back in Turkey by [October] 2011, the date his domestic student’s conscription deferral expired, then it is odd in the circumstances that, with his deferral to [October] 2011 having expired, he was issued with a further passport out of [their consulate in Australia] in 2014 permitting him unlimited travel abroad until 2024, when he was due to turn [age]. I have no difficulty, on the evidence before me, accepting that the original deferral certificate, valid to [October] 2011, is genuine, but particularly since it was issued on the basis of domestic study only, it is hard to see how it could have been the certification that permitted [the applicant] to leave Turkey on any of the three occasions on which he indeed left the country, let alone the second and third occasions. However, [the applicant] claims this deferral to [October] 2011 was the only deferral he was ever granted.
In his original statement to the Department, [the applicant] did not initially claim to be a conscientious objector to military service as such; he claimed to be opposed to mandatory military service. From the outset, [the applicant] claimed that he feared having to perform military service due to the risk of being injured or killed in a conflict zone. He said that he was concerned at the number of fatalities sustained by the armed services in clashes with terror groups in Turkey. He said that 85% of casualties in the armed forces are from low income families, and indicated that since he is not the son of rich parents or bureaucrats, and because he comes from Ankara which is closer to areas where the army has been involved in clashes with insurgents, he would be less likely able to avoid being sent to a conflict zone. He then later said in his statement that the taking of human life is contrary to his beliefs and values. It is reasonable to regard such a view as perhaps an essential component of the conscientious objector’s broader position, and later in his statement [the applicant] described himself as a conscientious objector to mandatory military service. However, discussing the right to life in greater detail, [the applicant] said he was concerned for his own right to live, detailing the position with a claim about worrying what would happen to his wife and child if he were to be killed in the line of duty. He said he did not want to live in a situation where he has to take or give orders. He did not explain at all in his statement why he was conscientiously opposed merely to mandatory military service and not military service per se. He did say that he has been regarded as a deserter since October 2011 and that he will be tried by a military court on return.
The purported letter from [the applicant’s] father does not appear to be helpful in supporting his claims about being as any kind of conscientious objector: it merely acknowledges [the applicant’s] originally-articulated fear of getting hurt in “clashes and martyrdom”.
Elsewhere in his statement to the Department, [the applicant] said he came to Australia hoping that during his period of study here, Turkey would reform its national service policy and make military service optional. Again he appeared to have no conscientious objection at all to Turkey having martial forces.
[The applicant] said in his original statement to the Department that he has some Kurdish ancestry but also explained that his antecedents were assimilated into Turkish culture some generations back. He said he does not identify in Turkey as a Kurd and cannot speak Kurdish. He identified himself as an ethnic Turk in his protection visa application form. However, he went on to say that he objects to having to serve in the military because, as an ethnic Kurd, he did not wish to bear arms against other Kurds in the event of being deployed to an area affected by Kurdish insurgency. He did not express any conscientious objection to the idea of professional career soldiers defending Turkey against violence from Kurdish insurgents.
Relevant to [the applicant’s] claims, I note information located by the Immigration and Refugee Board of Canada (IRBC) to the effect that Turkish citizens living abroad for a minimum of three years, and who have a legal work permit in the country where they live, have the option of paying 5,112 Euros (AUD $6,141) to shorten their compulsory military service to a term of three weeks.[2] One Turkish media source also indicated that the reduced military service is three weeks.[3] In 2008, War Resisters’ International (WRI) similarly noted that Turkish citizens living abroad can pay a fee of 5,112 Euros to shorten their military service, but placed the length of service slightly higher at one month:
Different military service regulations apply for Turkish citizens who are living abroad. They can postpone their service up to the age of 38, for a period of three years at a time. Turkish citizens living abroad may also partially buy themselves out of military service by paying a sum of 5,112 Euro [AUD $6141]. However, in this case they still need to perform one month of military service.[4]
[2] Immigration and Refugee Board of Canada, TUR103457.E, 26 May 2010,
[3] Ibid.
[4] War Resisters International, Country Report – Turkey, 23 October 2008
The abovementioned IRBC report quoted an official at the Embassy of the Republic of Turkey in Ottawa as stating that Turkish citizens living abroad who have not completed military service and who fail to apply for a postponement would be sent to a military training centre upon return to the country and may face charges of draft evasion. Furthermore, they would be unable to renew their passport while overseas and would only be permitted to travel back to Turkey.[5]
[5] Immigration and Refugee Board of Canada, TUR103457.E, 26 May 2010
Advice from [Mr A],[6] attached to [the applicant’s] 17 December 2015 submission, citing a Turkish Embassy website, says that if a person is studying a foreign language abroad he is allowed to defer his military service for up to 18 months. I note that [the applicant] completed his English course in 2011 and obtained a second student visa on the basis of undertaking a vocational qualification in [subject].
[6] [Details deleted].
[Mr A] also referred to a law enacted on 30 November 2011 in Turkey to allow male citizens abroad to pay 10,000 Turkish lire to be fully exempt from military service, the amount of 10,000 lire since having been reduced to 6,000 lire in 2013. The submission implies that [the applicant] did not apply for any such exemption before his substantive visa expired. The submission asserts that [the applicant’s] student visa status did not make him eligible to apply for an exemption, but the claim is not detailed. The submission refers to [the applicant] not being able at present to apply for an exemption from military service due to having been refused a Protection visa and having no substantive visa as such.
[Mr A] also referred to a law enacted in Turkey in 2011 to allow liable males in Turkey to pay for total exemption from military service at a cost of 30,000 lire. He opines that [the applicant] missed out on the opportunity to do this because he failed to miss the two-month deadline and did not meet the requirement of being in Turkey at the time. The date of the enactment of this particular law is not provided, and I note that [the applicant] spent two periods of a month each in Turkey in 2011.
[The applicant] has not provided evidence to support his claim about the authorities having treated him since 2011 as a deserter. In his protection visa application form, at Part C -- Schedule A, Q.66, he provided no response whatsoever to questions as to whether he was the subject of any criminal investigations or charges. He said in his protection visa application form that he was in constant contact with his father and siblings and yet he did not suggest that the authorities had ever contacted his family in connection with his military service liability. The purported letter from his father refers to his being liable to conscription but does not even remotely suggest that he would be treated as a deserter on return to Turkey; rather it simply says he “will be conscripted right away”, seeming to suggest he will simply be treated like someone whose deferral has expired on return to Turkey. Whereas he claims “the Turkish military” knows his Australian address and has been “getting in touch” with him here in Australia, he provided no support whatsoever for this claim, let alone anything sent to his address. I am not satisfied on the evidence before me that [the applicant] is currently regarded by Turkish authorities as a draft evader or any other kind of fugitive. I am not satisfied on the evidence before me that he has been unable to defer military service in Turkey. It is hard to see on the evidence before me, including the advice of [Mr A], that [the applicant] has been ineligible to pay for total exemption from Turkish military service during his time as a student in Australia.
On the topic of “conscientious objection”, [the applicant] told the delegate and me that he accepts the need for a professionally trained, armed and competent military in Turkey defending the country against internal and external threats. At the Tribunal hearing, I asked [the applicant] to provide more detail. In response he said he is a “partial” conscientious objector, and he said the delegate, assuming him to be a “total” conscientious objector, did not seem to understand the distinction as he himself sees it. He said that every country including Turkey needs an army and he indicated that he regarded this need as a fact of modern life, as it were. He said he supports Turkey having a professional army. He said, however, that he thinks compulsory military service makes no sense because of the cost of training conscripts. He said that the effectiveness of Turkey’s armed forces is compromised by relying on hastily-trained amateurs. He indicated that training as soldiers those who do not wish to be soldiers is a waste of national resources. I asked [the applicant] if he had ever articulated his views about military service outside of the content of his protection visa application and he said he had not. He said he could not talk about such things in Turkey as to do so would amount to acting in breach of Article 318 of the Penal Code which provides jail terms for people found guilty of discouraging others from performing military service. At paragraphs 49 to 56 of the 17 December 2015 submission, the applicant cites the views of an individual author as to what may constitute conscientious objection. That particular author, quoted at paragraph 50 of the submission, refers to situations where a person opposed to military service may have no option but to leave his country in order to avoid “severe punishment” or to avoid discriminatory application of conscription laws. The submission goes on to cite at paragraph 52 a 1983 UN paper on conscientious objection in which “conscience” is defined as “general ethical convictions, which may be of religious or humanist inspiration” and also describes the concept of “partial conscientious objection” as objection to “use of force … in some circumstances and not in others” . I have considered all this material in my assessment of this case.
This claim does not appear to sit with independent evidence from Hurriyet Daily News, a source elsewhere relied upon by [the applicant] himself.[7] I have been able to locate several examples of free debate of the issue [the applicant] has raised, in which news periodicals and their commentators publicly identify with the opinion that Turkey would be better served by a smaller and entirely professional military. In the meantime I have not been able to find any evidence to suggest that the disseminating of this particular view leads to persecution or denial of liberty or that it is treated by Turkish authorities as a breach of the law, let alone Article 318.
[7] “Mandatory military service up for debate in Turkey”, Hurriyet Daily News, 15 October 2010, see also Sule Kulu, “When will Turkey do away with forced conscription?”, Today’s Zaman, 6 October 2013,
I asked [the applicant] why he took so long to bring his claims to light and he said he watched and waited in Australia for any sign that the Turkish government might reform or repeal its military service laws, only to find over time that it had not. He said he did not need to do anything as long as his service was deferred and while his student visa was still valid.
Observing that he appeared to accept that having an army serves Turkey’s national interest, I invited [the applicant] to comment on the position that his country’s conscription laws are generally applicable laws including generally applicable criminal laws the objective of which are to appropriate and adapted to achieving a legitimate object, namely the defence of Turkey. In reply, he said that Turkey is the only country in Europe with such laws. He said there needs to be civil disobedience in Turkey to have the laws repealed. I asked [the applicant] to comment specifically on the position that the laws might reasonably be regarded as serving a legitimate national objective and he said that the defence of Turkey cannot competently be placed in the hands of “undertrained youths”. I invited him to comment on the position that the laws are not enforced discriminatorily and that if found to be in breach of them he would not be singled out for discriminatory treatment. In reply, he described a few individual case histories: one regarding a person who refused to wear his uniform and who was later sentenced to 22 months imprisonment by a military court; the other a person who refused to serve on the grounds of being homosexual who was obliged to undergo harsh psychological “treatment” for his “illness”. Essentially, [the applicant] seemed to be saying that the system is heavy-handed in its response to conscientious objectors but he had difficulty providing an argument as to whether, let alone how or why the law would be applied or exploited in a discriminatory way in his case. Given further opportunity to address this question he said “you don’t really know what would happen when they learn you’re an objector”. Then he said that to be a Kurdish person in jail is a risk in itself as it might lead to his being extrajudicially mistreated whilst serving time in jail. He said that it was possible that after he is jailed it might somehow become apparent that he has some Kurdish background.
[The applicant’s] adviser said [the applicant] only became afraid about his future in Turkey after his second trip back in 2011. He drew my attention to references in the 17 December 2015 submission to the phenomenon identified by the European Court of Human Rights as “civil death”, which the Turkish state perpetrates on a conscientious objector through multiple criminal proceedings and lifelong exclusion. He said that such treatment cannot reasonably be regarded as a “lawful sanction”. He also asked me to consider that most Turkish conscientious objectors would not be able to commence to express their objections until they were outside of Turkey.
[The applicant] claimed at the hearing that his protection visa application is in itself a form of civil disobedience in breach of Article 318. He indicated that the Turkish authorities will already assume he is a conscientious objector simply because he has been in Australia so long since applying to defer his military obligation. I put to him that his protection visa application is entirely confidential and it was at this point that he said that the Turkish military has been “getting in touch” with him here in Australia.
[The applicant] spoke at the Tribunal hearing about his status as an Alevi. Generally he said that Alevis face some discrimination in Turkey although persecutory events have occurred in Turkey’s past, such as with local outbreaks of mass violence against Alevis in 1978, 1980, 1993 and 1995. Overall, he indicated to me that he had never been denied the right to education, employment or freedom of movement, although he did say he had encountered prejudice at school and that one particular employer in [his specified] industry who terminated his position citing restructure probably terminated him due to his being Alevi because, from where he stood, he only knew of Alevis who had been made redundant in the course of that exercise. He claimed he went on to work with another [employer in that industry] but was overlooked for promotion after his Alevi background was disclosed to the boss. I asked him questions to see if such treatment had been experienced by other family members and he did not suggest that it had. He told me that [one sibling] is [an occupation]. When I asked him how his [sibling] had been able to avoid the problems he had experienced on occasions in the workplace, [the applicant] said that if all Alevis were denied work, Turkish society would suffer.
Findings in relation to s.36(2)(a)
I accept that [the applicant] is an Alevi and that [the applicant wife] is a Sunni and that they are legitimately married in Turkey. I accept that [the applicant wife’s] family has not welcomed her marriage to [the applicant]. However, I am not satisfied that her family or anyone else threatens to harm the applicants in any way at all. I do not accept that the discomfort or emotional isolation the applicants have cited in this context rises to the level of serious harm and, in any event, I am not satisfied that a Convention-related factor is an essential and significant factor in the “harm” claimed. Overall, I give very little weight to the “inter-marriage” claims in this application. I am not satisfied that the applicants face a real chance of Convention-related persecution in relation in Turkey in the reasonably foreseeable future due to their Sunni-Alevi marriage.
With regard to [the applicant’s] status as an Alevi in the wider community, I accept that he suffered discrimination and some bullying at school for reasons of being an Alevi, and I also accept that his Alevi status was a factor in choosing him for redundancy in one job and for not promoting him in another. However, overall, the bullying he describes was just occasional and he was able to complete his studies at school and move on to adult employment. I give weight to the fact that he was able to complete high school and was allowed to enrol in tertiary studies. I am not satisfied on the evidence before me that his Alevi status, or attitudes towards it, were significant factors in his withdrawal from tertiary studies in Turkey. [The applicant] has moved on from his school years and on the evidence before me the things that happened to him there do not give rise separately or cumulatively to a real chance of persecution in the reasonably foreseeable future. As to the claims in this application about how [the applicant] was treated in the workplace, I accept that he encountered prejudice but do not accept on the evidence before me that what happened to him amounted to serious harm amounting to persecution or is indicative of a real chance of persecution in the reasonably foreseeable future. I give some weight to the fact that [the applicant] and his [sibling] have been able to work throughout their adult lives in Turkey in their chosen fields. I give some weight to the DFAT reporting about Alevis generally being free to practise their faith, express their identity and achieve political representation, about Alevis suffering a low level of discrimination and being at a low risk of violence. I also give some weight to [the applicant’s] own statement at the Tribunal hearing about Turkish society being generally averse, albeit out of what he describes as self-interest, to marginalising Alevis in the national economy. I am not satisfied on the evidence before me that [the applicant] faces a real chance of persecution in Turkey in the reasonably foreseeable future, separately or cumulatively, for reasons of being an Alevi.
I find on the evidence before me that [the applicant] is for all relevant intents and purposes an ethnic Turk. This is how he self-identified, straightforwardly, in his protection visa application form. Albeit with some difficulties, accept that [the applicant] has some Kurdish background dating back generationally, but I find on the evidence before me that for some generations now, [the applicant’s] family, to the extent that any of its members has ever had Kurdish roots, long been a Turkish family. Overall, I am not satisfied that [the applicant] genuinely and subjectively identifies with Kurds in any potentially significant way, or that he would be imputed to be Kurdish. He does not appear to have had anything to do with them. I find that the suggestion that [the applicant’s] Kurdish “background” could be discovered in one circumstance or another, such as in the army or in jail, is an unlikely proposition based purely on bald speculation. I am not satisfied on the evidence before me that [the applicant] has ever been or, in the reasonably foreseeable future, would be imputed to have Kurdish roots in Turkey. I am not satisfied on the evidence before me that [the applicant] faces a real chance of Convention-related persecution in Turkey in the reasonably foreseeable future for separate or cumulative reasons of his claimed Kurdish background, actual or imputed. On the evidence before me, I find that [the applicant’s] identification with Kurds is selective, self-serving and disingenuous and that he is exploiting this factor in his claims to strengthen an argument which is really about being merely reluctant to perform national service.
I accept that a fear of being harmed or killed is not inconsistent with holding an ideological, philosophical, ethical or religious objection to military service. I also accept that [the applicant] has said that he is opposed to young people being forced to do military service, that he does not want people to be given weapons and ordered to kill other people, that he could not take someone else’s life with a gun. However he has essentially agreed that the objective of the Turkish law regarding military service is to defend Turkey from external and internal attacks. I give some weight to this.
I accept that the view that Turkey’s military should be entirely voluntary is a political opinion, but on the evidence before me, including independent evidence cited, I find that this is a common topic of discussion in public discourse in Turkey and I am not satisfied that expressing it would give rise to a real chance of [the applicant] being persecuted in any way in Turkey in the reasonably foreseeable future. In addition, I am not satisfied on the evidence before me that [the applicant] genuinely subscribes to the opinion he has articulated. I find on the evidence that he has invented or borrowed this argument disingenuously, simply in order to contrive and embellish an argument in this application as to why he does not wish to serve out his military obligations.
Especially as evidenced in the material provided by [Mr A], Turkish military laws draw a clear distinction between pre-registration draft evaders, punishable under Article 63 of the Military Penal Code, and deserters, punishable under Articles 66 to 68 of the Military Penal Code[8]. Contradicting his own witness, [the applicant], claiming only to have evaded registration hitherto, has claimed over and over in his evidence that he is regarded in Turkish law as a deserter. He claims he would be tried by a military court instead of a civil one and that he will be sentenced to a military prison, but his own expert witness, on the evidence provided to him, indicates that this is not correct and that such matters are dealt with in civil courts and jails. Whether I accept that [the applicant’s] deferral expired in 2011 or not, I find on the evidence before me that has engaged in exaggerating the problems he faces for the purposes of strengthening his application. I do not accept that he has merely erroneously referred to himself as a deserter in the eyes of the Turkish authorities. I have given this some weight in my overall finding regarding his reliability as a witness in the present matter.
[8] See also the UK Home Office Operational Guidance Note - Turkey, August 2011, paragraph 3.9.5
In view of some of the contradictory evidence in this matter, it is hard for me to make a clear finding in this case to the effect that I accept that [the applicant] has any outstanding military service obligations. All of the findings below in relation to [the applicant’s] claimed military service obligations proceed from the position that he still has obligations to fulfil. However, it is hard for me to be satisfied on the evidence before me that he even has any such outstanding obligations. At the very least, it is difficult to believe on the evidence before me that [the applicant] could have been allowed to leave Turkey on a deferral issued purely on the basis of his being a domestic student. It is logical to assume that he would have been asked why he was leaving the country if the only reason for his being unenlisted at the time was to complete domestic study. It is difficult to believe that he would have been issued a new passport in 2011, at a time when he held a student visa for Australia valid to 2013, or could have been granted a 10-year passport in 2014 if he had not either fulfilled his military service obligations, or was currently the subject of a further deferral. On the evince before me, I do not accept that the deferral he has presented in evidence was the basis of his being able to leave and remain outside of Turkey even prior to [October] 2011. The logical conclusion is that he has been and still is subject to some other condition, favourable to him, that he has not disclosed. Whereas I have fully considered the views of [Mr A], I have found [the applicant] untruthful in regard to a number of key claims in this case, and I am not satisfied on the evidence before me that he did not or could not pay to obtain a total exemption from military service.
However, proceeding from the position that [the applicant] does have outstanding military service obligations, I am not satisfied on the evidence before me that he is presently regarded as a deserter or that he would be regarded as such in the reasonably foreseeable future. On the evidence before me, I find that [the applicant] has not been truthful about the Turkish authorities having been in contact with him, let alone via his address in Australia, in connection with past, present or future military obligations or failure to undertake them. I do not accept on the evidence before me that he is in any effect a deserter or that the Turkish authorities regard him as such. On the evidence before me, a Turkish passport would not be issued abroad to a Turkish deserter. I give weight to the fact that [the applicant] was issued in 2014 with the 10-year passport of which he submitted a copy to the Tribunal just prior to the hearing in December 2015.
Also, whilst proceeding from the position that [the applicant] has outstanding military service obligations, I do not accept on the evidence before me that he is any kind of “conscientious objector”. I am not satisfied on the evidence before me that his argument against making himself available for mandatory military service is a genuine conscientious objection, “total” or “partial”. Whereas even a muddled point of view can still be genuine and deeply principled subjectively, I am not satisfied that [the applicant’s] stated opinions about the bearing of arms or being put in a situation where one might have to take a human life in the defence of Turkey are genuinely held or felt.
Overall, I am not satisfied that [the applicant] has been truthful about his reservations against undertaking of military service in Turkey. I find that he has embellished his reasons for not wishing to perform military service over the course of his protection visa application. I find that he is not a reliable witness in this matter.
I am not satisfied on the evidence before me that the Turkish authorities would necessarily impute from [the applicant’s] long stay in Australia that he has applied for a protection visa. He says they would be thinking this because he has been away from Turkey a long time and also because they have already been contacting him at his address in Australia. However, I find on the evidence before me that the claim about the authorities contacting him about his military service is unreliable. However, in the event that some officials do infer that he might have applied for a protection visa here, I am not satisfied on the evidence before me that this, either separately or cumulatively, would lead them to impute that he has a “conscientious objection” or any kind of principled or otherwise potentially relevant opposition to mandatory military service in Turkey. Also, I am not satisfied on the evidence before me that [the applicant’s] protection visa application in Australia, if detected or suspected by Turkish authorities, would be regarded as a form of civil disobedience in breach of Article 318. I am not satisfied on the evidence before me that there is a real chance that [the applicant’s] protection visa application would give rise separately or cumulatively to a real chance of Convention-related persecution in Turkey.
I find that, in the event of return to Turkey, [the applicant] would not disseminate comments or act in such a way as to imply an opinion relating to mandatory or other military service in that country, and I find that he would refrain from doing so not for the reason that he fears persecution in the event of such expression, but for the reason that he is not generally interested in the topic or argument or “principle” he has outlined, and for the reason that his stated positions regarding military service and the use of conscripts is not a genuinely principled position.
In the event that [the applicant] has unfulfilled military service obligations in Turkey, I find that on return to Turkey he will be required to honour them. I do not accept on the evidence before me that the authorities will move in the first instance to prosecute him as a draft evader let alone, as he put it, as a “deserter” or a “conscientious objector”. I consider it purely bald speculation that [the applicant], who I have found to be an unreliable witness in this matter, would resist military service in Turkey in any event. Although I accept that [the applicant] says he is unwilling to undertake military service in the future, I am not satisfied that he would resist, or react against conscription, let alone in such a way as to cause him to face prosecution, and let alone the claimed persecution that he says would follow. Essentially, since I do not accept that [the applicant] genuinely objects to performing military service for any ideological, philosophical, ethical or religious reason, I do not accept that there is a real chance that he will continue to refuse to undertake military service, thus making him liable for imprisonment as claimed. I am not satisfied that he faces a real chance of being fined or jailed. It follows that I am not satisfied that he faces a real chance of abuse, let alone on ethnic or “race” grounds or for being a deserter or draft evader or conscientious objector or the like, that he claims will both accompany and follow prosecution. I am not satisfied on the evidence before me that, in the reasonably foreseeable future, [the applicant] faces a real chance of being subjected to the kind of cumulative treatment that has been described in sources cited in his submissions as “civil death”.
Whereas [the applicant] evidently acknowledges that Turkey’s having an army is essential in modern times to meeting a legitimate national objective, insofar as the country needs defending, he effectively claims that the law in relation to military service in Turkey is not appropriate and adapted to achieving a legitimate objective on the basis that it fails to provide an alternative form of civilian service to conscientious objectors. He said that it is the only Council of Europe country to fail in this regard. I regard this as a misunderstanding of the relevant test which does not require an assessment of whether the law complies with international standards regarding human rights. As McHugh J said in Applicant A at 258:
Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group.
It follows that, even if a law is oppressive or repugnant to the values of Australian society, it may nevertheless be held to be appropriate and adapted to achieving some legitimate object of the country concerned (see Jia Cai Zheng & Anor v Minister for Immigration & Multicultural Affairs [1997] FCA 923 per French J at 16; Lama v Minister for Immigration & Multicultural Affairs [1999] FCA 918 per Tamberlin J at [30], quoted with approval by Branson, Sackville and Kiefel JJ on appeal in Lama v Minister of Immigration & Multicultural Affairs [1999] FCA 1620; Alamdar v Minister for Immigration & Multicultural Affairs [2001] FCA 1244 per Emmett J at [16]). I do not accept that the fact that the law in relation to military service in Turkey fails to provide an alternative form of civilian service to conscientious objectors means that it is not a law which is appropriate and adapted to achieving a legitimate object of the Turkish state.
Overall, I find that the laws governing conscription and draft evasion in Turkey are laws of general application appropriate and adapted to a legitimate national objective of protecting the security and safety of Turkey and its population.
Whereas Turkey’s conscription laws are generally applicable laws appropriate and adjusted to a legitimate national objective, [the applicant] claims they may yet be exploited in order to discriminate against him on the Convention-related grounds of being a Kurd and an Alevi and a relatively poor person lacking political connections. As noted, he has provided some material about a higher rate of stress suffered by members of ethnic minorities serving in the armed forces. He has provided material reporting a substantial suicide and self-harm rate amongst Turkish conscripts, and observations about a disproportionally higher rate of suicide amongst soldiers who are also members of ethnic minorities. He claims he faces a real chance of discrimination amounting to persecution for being an Alevi. However, I give more weight to the material indicating a low level of discrimination against Alevis in Turkey, including the material from DFAT. On the evidence before me I am not satisfied that he faces a real chance on the reasonably foreseeable future of being persecuted during national service for reasons of being an Alevi.
[The applicant] claims that if his claimed Kurdish background is discovered which he is performing national service, he will face persecution. I find that the chance of his being imputed to be a Kurd is remote. Accordingly, I am not satisfied that he faces a real chance of being persecuted in the armed forces in the reasonably foreseeable future for reasons of being a Kurd. Meanwhile, as noted, [the applicant] claims that no allowance will be made in relation to his claimed desire not to be involved in potentially harming “other” Kurds in conflict zones. His objection is based on his claimed self-identification as a Kurd; however, on the evidence before me I am not satisfied that this Kurdish self-identification is at all genuine. I give weight to his self-identification as “Turkish” in his protection visa application form ad to his evident lack of engagement with Kurds, even as a friendly or concerned Turk, throughout his life. I give weight to his apparent acceptance of the practical need for Turkey to have an army to protect the country against invasion and internal insurgency rained insurgency. I am not satisfied that he is philosophically opposed to other Turkish soldiers containing the Kurdish insurgency by legal means and with lawful powers at their lawful disposal.
As to the treatment of poor persons I accept that there is evidence that having useful “connections” may influence where a conscript is posted.[9] However, while people with the right connections may be able to obtain safe posts, the independent evidence suggests that the vast majority of conscripts are treated in exactly the same way. It does not suggest that particular conscripts are singled out to be sent to unsafe areas for reasons of their race, religion, nationality or political opinion or their membership of any particular social group such as sons of poor people or people from working-class families as [the applicant] has claimed.[10] I do not accept on the evidence before me that, even if [the applicant] were to be sent to an unsafe area, one or more of the five Convention reasons would be the essential and significant reason for this occurring as required by paragraph 91R(1)(a) of the Act.
[9] Netherlands Ministry of Foreign Affairs, Directorate for Movements of Persons, Migration and Consular Affairs, Asylum and Migration Division, Turkey/military service, July 2001, page 21
[10] Netherlands Ministry of Foreign Affairs, Directorate for Movements of Persons, Migration and Consular Affairs, Asylum and Migration Division, Turkey/military service, July 2001, pages 18 to 21
I am not satisfied on the evidence before me that [the applicant] would be subjected to discriminatory treatment within the armed services, let alone for any of the Convention-related reasons claimed. I am not satisfied that serving out his military obligations would differentially impact on [the applicant] to any significant degree or for any reason.
I have considered all of the evidence in this case separately and cumulatively. For the reasons given above I do not accept on the evidence before me that there is a real chance that the applicants face a real chance of being persecuted for one or more of the five Convention reasons if he returns to Turkey now or in the reasonably foreseeable future. I do not accept in particular that there is a real chance that the applicant will face a threat to their life or liberty, or that they will be denied access to basic services or the right to earn a livelihood, for one or more of the five Convention reasons if they returns to Turkey now or in the reasonably foreseeable future.
The applicants’ claimed fear of Convention-related persecution is not well founded. They do not meet the refugee criterion. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore they do not satisfy the criterion set out in s.36(2)(a).
Consideration in relation to s.36(2)(aa)
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
Essentially, the applicants’ claims to complementary protection are the same claims they have presented as refugee claims.
The refugee claims above that fail due to lack of credibility can no more succeed as complementary protection claims. The refugee claims that fail due to failure to meet the “real chance” test also fail to meet the “real risk” test. This is the “real risk” test imposes the same standard as the “real chance’ test applicable to the assessment of “well-founded fear” in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The applicants’ adviser pointed out at the hearing that whereas the Tribunal might find that Turkey’s conscription laws are generally applicable laws appropriate and adjusted to meeting a legitimate national objective, its approach to these laws must necessarily be different with regard to assessment of claims as complementary protection claims because, as he put it, mistreatment of conscientious objectors in the form on ongoing multiple prosecutions, jail terms and other forms of harassment amounting to “civil death” cannot reasonably be regarded as coming under “legal sanction” harm as such ongoing harassment must reasonably be considered contrary to Article 18 of the ICCPR. I have considered this argument but, as found above, I do not accept that [the applicant] is a “conscientious objector” or for any reason would be imputed to be one, and I am not satisfied that there is a real chance or a real risk, for that matter, that he will be prosecuted, let alone tried and jailed in relation to any as yet unfulfilled military obligation.
Having regard to my findings of fact above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Turkey, there is a real risk that they will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Turkey, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Act, and therefore I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Luke Hardy
MemberATTACHMENT A
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and 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 of the same class.
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).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
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 – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B
EXTRACT FROM DFAT COUNTRY REPORT: TURKEY, 2 JUNE 2014
Kurds
3.6 Kurds are a linguistically-defined ethnic group concentrated in Turkey’s south-east. They are also present in large numbers in Istanbul and other large cities. Related groups exist in Syria, Iran and Iraq. The majority of Kurds in Turkey speak Kurmanji. A smaller number speak Zaza or Sorani, though these speakers would normally understand Kurmanji as well. Some Zaza speakers consider themselves Kurdish, while others do not.
3.7 Estimates of the Kurdish population range widely. However, credible academic estimates suggest approximately 18 per cent of Turkey’s population is Kurdish. Kurds are concentrated in south-eastern Anatolia, where they are the majority ethnic group and north-eastern Anatolia, where they are a significant minority. Following rural to city migration throughout the 20th century, there are also substantial populations of Kurds in Istanbul (approximately 15 per cent Kurdish) and other major centres. Highlighting the extent of internal migration, up to half the Kurdish population is now estimated to live in western Turkey. Other regions of Turkey have less than 10 per cent Kurdish populations.
3.8 Eastern and south-eastern Turkey have historically been less developed than other parts of the country, with lower incomes, higher poverty rates, less industry and less government investment. These areas overlap closely with Kurdish-majority parts of the country. For example, Turkey’s highest unemployment rates in 2012 were all in provinces with a Kurdish majority or a significant Kurdish population. In 2012, South Eastern Anatolia had an average unemployment level of 12.4 per cent overall, while the provinces of Mardin, Batman, Sirnak and Siirt, with substantial Kurdish populations, had unemployment rates of up to 21 per cent.
3.9 Parts of Turkey’s Kurdish population have long opposed their incorporation into Turkey. The early years of the Turkish republic were marked by four major Kurdish rebellions between 1920 and 1938. The modern separatist movement consolidated under the Kurdistan Workers Party (Kurdish: Partiya Karkerên Kurdistan, PKK), founded in 1978. The PKK fought major insurgencies between 1984 and 1999, and again between 2004 and 2013, with several intervening ceasefires. In March 2013, the leader of the PKK announced the end of the PKK’s armed struggle. Measures were to include a full ceasefire, the withdrawal of Kurdish forces from Turkey, and disarmament of PKK fighters.
3.10 In general, ethnic Kurds adhere to the Shafi’i school of Sunni Islam, as opposed to ethnic Turks, who generally adhere to the Hanafi school. The State Directorate of Religious Affairs (the Diyanet) only has representation from the Hanafi school. DFAT has been told that religion is not a basis for discrimination against Kurds, as Sunni Muslim scholars consider both the Shafi’i and Hanafi schools to be equally valid.
3.11 This section considers discrimination against Kurds on the basis of their ethnicity and on the basis of their political opinions (actual or imputed), as the grounds for discrimination are often difficult to distinguish.
Official Discrimination
3.12 As Turkey’s largest (and most geographically concentrated) ethnic minority, Kurds have been perceived at various points in Turkey’s history as posing a threat to its ethnic homogeneity and/or territorial integrity. For decades, Kurds have been subject to a range of policies, purportedly aimed at mitigating the perceived risks of community tension and the disintegration of Turkey.
3.13 Throughout the 2000s, and particularly in 2013, the Turkish Government has made substantial progress in improving its treatment of Kurds. This section considers the current situation in the five areas of significant historical discrimination against Kurds: the public expression of Kurdish identity; the use of Kurdish languages; detention and prosecution; the right to political representation; and public sector employment.
Expression of Kurdish Identity
3.14 Limitations on the expression of Kurdish identity are now minimal. In the past it has been illegal to use the Kurdish language or to publicly declare support for Kurdish political parties. Such prohibitions have gradually been revoked. In September 2013, the Government’s democratisation package removed the requirement that schoolchildren recite a daily oath including the words ‘I am a Turk.’ At the time of writing, the only significant restriction on the expression of Kurdish identity was that Turkey’s Constitution defines all Turkish citizens as ‘Turks’, precluding claims to citizenship on any other ethnic basis. This ideological statement has little to no practical effect on rights to citizenship for ethnic minorities.
Use of Kurdish language
3.15 Restrictions on the use of the Kurdish language were also gradually revoked throughout the 2000s and few remain. The use of Kurdish in public is now legal and Kurdish is now commonly used in Turkey, including in Istanbul and other cities of western Turkey. Kurdish can be, and is, used in political advertising and campaigning, private education and most social contexts. Measures taken by the Turkish Government to support the Kurdish language include establishing a publicly-funded Kurdish-language TV station.
3.16 The Government’s September 2013 democratisation package included lifting restrictions on the use of q, w and x (letters used in the Kurdish but not Turkish alphabet). However, these letters still cannot be used in official correspondence as they are not part of the Turkish alphabet. Kurdish groups told DFAT in early 2014 that local government offices remain reluctant to fully implement this policy, suggesting Kurds use two ‘v’s in place of a ‘w’ on official identity documents. The democratic reform package also included a return to the original Kurdish names of villages, rather than the Turkish names they had been given.
3.17 Kurdish is now taught as an elective class in public schools, and can legally be used for mother-tongue education in private schools. As with all languages other than Turkish, Kurdish is not used for mother-tongue education in public schools. Kurdish groups argue that the vast majority of Kurds are too poor to attend private schools and that the use of Kurdish for mother-tongue education remains beyond their means. However, many Kurdish families are comfortable with their children going to Turkish-medium schools, recognising the economic value of Turkish fluency.
Arrest and Detention
3.18 Between 2009 and 2011, the state detained nearly 8000 mostly Kurdish people on the basis of their links to the banned terrorist groups the PKK and Union of Communities of Kurdistan (Turkish: Koma Civakên Kurdistan, KCK), the ‘urban wing’ of the PKK. Many of those arrested were charged on the basis of links to those groups alone, and without any evidence of material or other support for terrorism. Those detained included political leaders, activists, academics, journalists, lawyers and students. Contacts in Istanbul told DFAT in early 2014 that 5000 members of the pro-Kurdish political party, the BDP, remained in detention. Of those, an estimated 120 were from the party’s central structure, 35 were elected mayors, 95 were elected councillors, and the remainder were low-profile members of the party.
3.19 In 2013 and early 2014, prosecutions continued against some of these groups. However, credible contacts told DFAT in early 2014 that, unlike in previous years, arrests were now only undertaken where the state had concrete evidence that could be used to persuade a court that the defendant’s actions constitute terrorism under the new definition. Kurdish groups argued that this improvement is temporary and entirely dependent on the current progress in peace talks.
3.20 Prosecutions in the Turkish judicial system make extensive use of pre-trial detention, sometimes for extended periods. The Government told DFAT in early 2014 that its rates of detention compared to incarceration are lower than those of most G20 countries. In early 2014, the Government decreased the maximum length of pre-trial detention from ten to five years and released several detainees who had been detained for longer than five years. Kurdish and human rights groups stated that detainees suffer from cramped prison conditions and inadequate access to health care (see also ‘Prison Conditions’, below).
Political representation
3.21 Some Kurdish groups argue that the political representation of Kurdish people remains artificially limited by a requirement that political parties achieve 10 per cent of the national vote in order to be represented in the Parliament (see ‘Political System’, above). To avoid the constraints imposed by this threshold in the current Parliament, members of the BDP were elected as independents, without the access to state funding that other political parties enjoy. The ECrtHR has found that Turkey’s 10 per cent threshold does not violate the ECHR’s right to free elections.
3.22 Over recent decades, a series of political parties representing Kurdish interests have been declared illegal and disbanded, mostly on the basis that they provided support for the PKK. In order, these include the People’s Labor Party (active 1990 to 1993); the Democracy Party (1993 to 1994); the People’s Democracy Party (1994 to 2003); the Democratic People’s Party (1997 to 2005); and the Democratic Society Party (2005 to 2009). This form of political disenfranchisement appears to have ceased: the pro-Kurdish BDP has been active from 2008 until the present.
Public sector employment
3.23 Some quasi-official (that is, based on public service ideology emphasising secularism and ‘Turkishness’, rather than an explicit government policy) discrimination against Kurds in public sector employment continues. In early 2014, a range of contacts told DFAT that for Kurds to secure employment in the public sector (for example as a teacher, police officer or soldier) they would effectively have to deny and hide their identity. Claims to ‘Kurdishness’ have been sufficient to see the employee dismissed. Such discrimination against Kurds is mostly limited to the level of the national government, which controls national agencies and appoints provincial Governors. Municipal governments, on the other hand, are popularly elected at a local level—many such municipal governments in eastern and south-eastern Turkey have Kurdish representation and tend to provide services to, and employ, Kurdish people. Despite these challenges, many Kurds are employed in the public sector in Turkey.
3.24 Overall, DFAT assesses that key issues for Kurds include the risk of harassment through the legal system and of discrimination in public sector employment. Given significant recent improvements in the general situation of Kurds, including in their ability to express their Kurdish identity, use the Kurdish language, and achieve political representation, DFAT assesses that overall these conditions represent a low level of official discrimination against Kurds.
Societal Discrimination
3.25 In many areas of Turkey, Kurds do not face societal discrimination. Kurds can access government health and education services—this normally includes free public schooling and, for the poor, access to free public health care. Kurds can normally secure private sector employment and public sector employment subject to the limitations outlined in the previous section.
3.26 In eastern and south-eastern Turkey, societal discrimination is not generally a problem: in many cities in these regions, Kurds are in the majority. In Istanbul, contacts told DFAT that ‘Kurdishness’ was becoming much more acceptable: for example, Kurdish buskers and music can now be heard on the streets. However, because of a history of official discrimination it remains difficult for some Kurds to admit their ethnicity.
3.27 A low level of societal discrimination against Kurds continues in Istanbul and other parts of western Turkey, in which Kurds do not constitute a majority. For example, Kurds who do not speak Turkish or do not speak Turkish well are at risk of being passed over for employment and might find it difficult to secure medical treatment or housing from Turkish service providers. Most young, educated Kurds are bilingual in Turkish and Kurdish; therefore, discrimination on the basis of language is normally only problematic for elderly or uneducated Kurds. Kurdish women, on average, have lower levels of education than Kurdish men, and this barrier to accessing services is particularly a problem for Kurdish women. Societal discrimination against Kurds does not normally amount to violence.
3.28 Contacts have told DFAT that societal discrimination against Kurds depends, in part, on progress in peace talks between the Government and the PKK. Because 2013 and early 2014 had seen marked progress in peace talks and a lull in violence, feeling towards Kurds is relatively positive at the time of writing of this report. On this basis, DFAT assesses that there is at present a low level of societal discrimination against Kurds.
Violence
3.29 As outlined above, the Kurdish separatist movement has, for many decades, been marked by significant violence. Between 25,000 and 30,000 soldiers, insurgents and civilians were killed during the conflict between 1984 and 2012. Although attacks have taken place across the country, the majority of the casualties have occurred in the southeast, in the majority Kurdish regions of the country.
3.30 Methods used in the past by Kurdish rebel groups have included conventional military, guerrilla and terrorist tactics. In the early 2000s, methods used by the state against Kurdish combatants included military operations and airstrikes. Non-military methods allegedly used by both sides included abductions, torture, extra-judicial killings and arson. At times in the 1990s, the state forcibly depopulated extensive rural areas of south-eastern Turkey.
3.31 As of March 2013, following a ceasefire and withdrawal of PKK fighters from Turkey, the conflict had ceased. Credible contacts, including Kurdish human rights groups, agree that extra-judicial killings, abductions and arson are no longer used by state security forces. Some rights groups contended that torture and ill-treatment by police continued to be an issue felt particularly by Kurds. Other Kurdish contacts told DFAT in early 2014 that the Government now sought to pressure, influence and restrain Kurdish political leaders and activists through the legal system, but that the pressure exerted by the Government was now mostly non-violent...
Alevis
3.49 Alevis follow a heterodox set of religious practices probably derived from Shia Islam, but with elements of Sufism and, in some areas, incorporating elements of Zoroastrianism and pre-Islamic Turkish shamanism. Many Alevis do not consider themselves Muslims, while the state considers Alevism a heterodox sect of Islam. Most Alevis do not pray in mosques, but gather in religious and community centres called Cemevi, or Cem houses. Alevis generally pray in Turkish. Among other important distinctions from Sunni Islam, Alevis do not (completely) segregate women in their houses of worship. Veils are regarded as optional by Alevi women, though many Alevi women wear headscarves.
3.50 Alevis are the largest non-Sunni religious minority in Turkey. Credible academic estimates suggest between 10 and 20 million Turks are Alevis, though Alevi groups claim up to 30 million. An estimated 1.5 million Alevis attend Cemevi monthly. Alevis are widely distributed across Turkey, but are concentrated in central and inner-eastern Anatolia, and in Istanbul and other major cities. There is some overlap between Kurdish and Alevi identity. Estimates of the Kurdish Alevi population vary widely: of an estimated population of over 12 million Kurds, between 500,000 and several million are Alevis.
Official Discrimination
3.51 The Turkish state does not officially recognise Alevism as a religion. As a result Cemevi are not recognised as official places of worship and do not receive funding from the central government, although some local governments are starting to provide land or other forms of support. There are approximately 3000 Cemevi across Turkey. Alevi groups argue that this number is insufficient to meet the needs of their community and that they have difficulty in securing the necessary government approvals to build further Cemevi. Because the state regards Alevism as a heterodox sect of Islam, Alevis cannot establish schools in which to train their clergy in Turkey.
3.52 Unlike the Lausanne minorities, Alevi children are not exempt from mandatory religious and ethical classes in public schools. In recent years, religious and ethics classes have begun to include limited elements of other faiths, including Alevism. Alevi groups have been consulted on parts of the course that cover Alevism, but feel that the coverage of Alevism remains cursory. Alevi groups have argued that content covering Alevism has been included at the end of the school year, when students are normally absent to begin exam preparation.
3.53 As with other religious minorities, much Alevi property was confiscated in the early period of the Turkish republic. Unlike other religious minorities, Alevi property is not eligible to be returned under recently a enacted decree enabling the return of confiscated property. The majority of the Alevi property was confiscated in 1924 and 1925, while the decree was in regard to confiscations from 1936 onward.
3.54 The Government has undertaken extensive consultations with the Alevi community in regard to its issues and suggested publicly in 2013 that it was considering providing some concessions to the Alevi community in its ‘democratisation package’. However, the democratisation package announced in September 2013 did not contain measures directed at Alevis and the proposed reforms have not been forthcoming at the time of writing of this report.
3.55 Like other minority groups, Alevis are generally able to secure public sector employment. They are normally able to continue their public sector employment but many report they do not feel comfortable revealing their religions. Securing promotions can be difficult if they are open about their Alevi identity. For example, there are few, if any, Alevi police chiefs in Turkey.
3.56 Alevis in Turkey enjoy many religious freedoms: they are generally free to gather in Cemevis to undertake religious ceremonies and in many spheres of life can freely express their identity without fear of discrimination. Increasingly, municipal governments in Alevi-majority areas are providing financial support for Alevi cultural institutions. DFAT is not aware of any discrimination against Alevis in terms of access to health care, education or private sector employment.
Societal discrimination
3.57 Alevis in Turkey are widespread and often accepted as an integral part of Turkish society. For example, up to 40 Alevis were represented in Parliament in early 2014 (including 30 in the CHP; five in BDP and two in AKP). Many Alevis still prefer to hide their identity, and overall DFAT assesses that Alevis face low levels of societal discrimination on the basis of religion.
Violence
3.58 The Alevi community has suffered significant violence in the past. For example, over 30 Alevis were killed in 1993 when a Sunni mob set fire to a hotel in Sivas, in which an Alevi group was holding a cultural celebration. Authorities did not intervene at the time, but later tried and convicted many of those responsible. Following a range of discussions with representatives of the Alevi community, DFAT is not aware of significant instances of community violence against Alevis in recent years. Some civil society groups told DFAT that all of those killed in Gezi Park protests in May–July 2013 were Alevis, though none claimed that this was the result of intentional targeting of Alevis (see also ‘Anti-Government Protestors / Activists’, …).
3.59 Overall, on the basis that Alevis are generally free to practise their faith, express their identity and achieve political representation, DFAT assesses that Alevis suffer a low level of discrimination and are at a low risk of violence…
Conscientious Objectors
3.116 Military service of six months for university graduates and 12 months for non-graduates is mandatory in Turkey for male citizens. Exemption from military service is possible for several reasons, including homosexuality, obesity and health problems.
3.117 There is currently no domestic legislation in Turkey providing a legal basis for conscripts to claim exemption from military service on the basis of conscientious objection. The Constitution gives primacy to international law, and on that basis military courts have permitted at least one conscript to claim a right of conscientious objection on the basis of religion. The claimant, in that case, was a Jehovah’s Witness. However, in a subsequent case military courts have found that Sunni Muslims do not have a basis for claiming conscientious objection, on the basis of advice from the Directorate of Religious Affairs that Islam has no concept of conscientious objection. DFAT understands that the Government is considering introducing legislation to regulate the right to conscientious objection.
3.118 Military authorities issue documents that the person has no outstanding liability or obligation in terms of military service. Such documents do not include information on reasons for being unfit but merely state that the person in question has no military obligation (or otherwise). People who are unfit for military service work for public and private sector without any problems.
…
3.112 … While gay men can seek exemption from mandatory military service on the basis of their sexual orientation, they have been forced to “prove” their homosexuality through demeaning and invasive tests. DFAT was also told that the current Government has objected to references in draft anti-discrimination legislation to protecting ‘gender’ rights, on the basis that this would offer protection to LGBTI people.
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