1414437 (Refugee) - [2016] AATA 3072

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1414437 (Refugee)

Details

AGLC: 1414437 (Refugee) [2016] AATA 3072
Case: [2016] AATA 3072
Decision Date: 14 January 2016

CaseChat Overview and Summary

In the matter of 1414437 (Refugee), the applicants, who are a Kurdish couple with a child born in Australia, sought protection visas on the grounds of being refugees or complementary protection claimants. The primary issue before the Tribunal was whether the applicants qualified for protection visas under the Refugee Convention or as beneficiaries of complementary protection. The Tribunal concluded that the applicants did not meet the criteria for either refugee status or complementary protection, affirming the decision under review.

The applicants argued that they faced Convention-related persecution due to their Kurdish ethnicity, Alevi religious beliefs, and conscientious objection to military service. The Tribunal examined these claims, noting the applicants' assertions that they would be mistreated or imprisoned if returned to Turkey. However, the Tribunal found the applicants' claims to be lacking in credibility and failing to meet the necessary standards for both refugee and complementary protection. The Tribunal held that the applicants did not establish a well-founded fear of persecution or a real risk of significant harm, as required by the relevant provisions of the Migration Act.

Concluding its analysis, the Tribunal affirmed the primary decision, finding that the applicants did not qualify for protection visas. The Tribunal determined that the applicants' claims were not credible and did not meet the threshold for either refugee status or complementary protection. Consequently, the Tribunal did not find substantial grounds to believe that the applicants would face persecution or significant harm if returned to Turkey.

The Tribunal's final order affirmed the primary decision, denying the applicants' application for protection visas. The applicants were not found to meet the criteria for refugee status or complementary protection, and therefore, the Tribunal concluded that Australia had no protection obligations towards them under the Refugees Convention or the complementary protection provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEThe 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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