1415836 (Refugee)

[2017] AATA 978

1415836 (Refugee) [2017] AATA 978 (22 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415836

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Rea Hearn Mackinnon

DATE:22 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2017 at 11:32am

CATCHWORDS
Refugee – Protection visa – Turkey – Particular social group – Homosexuals – Police attacks – Detention – Rejection by family – Military service – Physical assault

LEGISLATION
Migration Act 1958, ss 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

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 2014 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 26 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

10. The issue in this case is whether the applicant will be harmed in Turkey because of his sexuality. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

11. The applicant has provided a copy of his passport and the Tribunal accepts he is a national of Turkey.

    Background

12. The applicant was born on [date] in [City 1] in Ordu Province of Turkey. The applicant told the Tribunal that [City 1] has a population of about [number] people.

13. The applicant father lives in [City 1] and his mother and [sibling] live [in] western Turkey. The applicant’s father owned a [business] in [City 1] and employed [number] people. The applicant claims his father closed his business after the applicant came to Australia.

14. The applicant came to Australia in November 2008 on a [temporary] visa, returned to Turkey in August 2009 and came back to Australia in July 2010. He claims to have last had contact with his mother and [sibling] a year ago and to have had no contact with his father since 2010.

    Claims

15. The applicant claims to fear harm from police and members of the community in Turkey because he is homosexual. He claims the Turkish authorities don’t want homosexuals, that the media is anti-homosexual and that he has no freedom and is scared to walk on the streets. He fears harm from his family as they don’t support him.

16. The applicant claims to have become aware that he was attracted to males when he was about 15 years old and still in middle school. He looked at males in a sexual way rather than as just friends. At first he wondered if he was sick but after some time he realised that this is his way. When asked to describe how he made that transition, the applicant said at first he thought he was ill but in time he realised it was normal. When asked again to describe the thinking or process he went through, the applicant said he asked himself what was going on and if his feelings were real, but after a while he realised he was gay and that was normal for him, “that’s me”.  This process did not take very long and occurred while he was still in middle school. His friends were talking about girls but he was thinking about men and he thought, “ok, that’s my way”.

17. The applicant said he didn’t know any homosexual boys growing up. When asked if he explored any websites or literature, he said he didn’t at that time but he found out from the internet that gays are not looked upon well in Turkey. He did not tell anyone at school about his sexuality.  He claims he could not reveal his sexuality because it is forbidden in Turkey.

18. The applicant claims he made a sexual overture to a school friend called [Friend A] who rebuffed him causing him shame and embarrassment. The applicant told the Tribunal the incident with [Friend A] near the end of middle school when he was about 14 or 15. They were at [Friend A’s] house and [Friend A] put on a pornographic CD. When asked if the CD involved heterosexual or homosexual activity the applicant said “normal” (ie heterosexual). The applicant claims he asked [Friend A] if he wanted to try it. When asked why he did this, the applicant said his feelings were high and [Friend A] was his close friend.  He claims [Friend A] slapped him and asked what was wrong with him. When asked why he thought [Friend A] would respond to sexual contact from him given [Friend A] had just put on heterosexual pornography, the applicant said he thought that might have been why [Friend A] put on the pornography.

19. The applicant claims [Friend A] told everyone and he was ostracised at school and sometimes beaten. He claims he received a bad report from a couple of teachers and that a teacher told his parents. When his parents raised it with him he denied it and said people were lying about him.

20. The applicant stated he began attending a religious high school in [year]. He claims he was very scared his sexuality would be identified and did everything he could to disguise his preference. He had no relationships during this period and no one identified him as homosexual.

21. The applicant stated he began working in his father’s [business] in 2008 and met a boy called [Friend B] who was also working for his father.  He claims that he and [Friend B] started to talk and became friends and, after a couple of months went to a park to talk. The applicant claims he opened up to [Friend B] about his sexuality whilst at the park. He claims that [Friend B] kissed him and they were “in action”, making love and half naked, when the police came. When asked what time of day this occurred, the applicant said it was night time, 10, 12 or 1 am. When the Tribunal noted it was risky activity in a public place, the applicant said they didn’t know it was going to happen. When the Tribunal noted there would still be many people around at 10pm, the applicant said it was a quiet place with a sea view. They were on the edge of the park next to the sand, not out in the open. The applicant said he did not know the police patrolled the beach.

22. When asked how many police caught him the applicant said two, three, four, something like that. The Tribunal noted it is not a crime to be homosexual in Turkey and asked why the police arrested him. The applicant said it offended custom.

23. When asked what happened at the police station, the applicant said the police punched them and did unbelievable things. He and [Friend B] were put in separate cells. One police officer came into his cell. The cell was dark so it could have been a different police officer at different times. He stated the police officer did not talk and just bashed. The police officer showed him a stick and said he would put it up his arse. When asked if the police officer hit him, the applicant said the officer tried but didn’t. He was screaming. He was kept at the police station overnight and the police called his and [Friend B’s] families. The applicant confirmed he was [age] and therefore an adult. When asked why then the police called his family, the applicant said it was because they were in a bad situation and had been bashed. When asked if he was charged, the applicant said there were no documents and he did not go to court.

24. The applicant claims his parents picked him up from the police station and would not look at him. They asked him what was going on and his father told him, “you can’t be my son, I’d rather you were dead than go through this”. The applicant said his whole life changed after this because everyone knew he was homosexual. When asked how everyone knew, the applicant said there may have been a journalist at the police station. The applicant claims bad things began happening: his close friends didn’t want to know him and people would tell him off on the street.

25. The applicant stated that [Friend B] was his first sexual encounter. When asked how he felt at the time, the applicant said he was excited and happy.  When asked how he felt about himself after he had been arrested and released by the police and his parents and friends knew about his sexuality, the applicant said he knew what he was and was happy with himself but the way people were looking at him was scary. When asked if he did anything to protect himself, the applicant said he avoided leaving the house as much as he could. He claims he had no other sexual relationships in Turkey as he couldn’t leave home.

26. The applicant claims that after his sexuality became widely known, people shamed and ostracised him. He claims he was attacked by a group of young people one night as he was walking along the sea front. They pushed him into the sea and a person passing by took him to the hospital. The hospital called the police who interviewed him and told him to go to the police station to make a statement however when he went to the police station the police told him the people he had accused denied the charges and they would not act on a complaint from a homosexual.

27. The applicant claims that when he returned home from the hospital his father told him he would have had more pride in his son if he had died. His parents decided it was better if he went abroad and that perhaps he would be rehabilitated whilst he was away. His mother hoped that he would become normal if he changed his life. When asked why his parents thought coming to Australia where homosexuality is accepted and openly practiced might assist him to stop being homosexual, the applicant said his mother didn’t think like that and he chose Australia. The applicant told the Tribunal his [sibling] knows about his sexuality and has some sympathy but regards him as an ill person. 

28. The applicant claims that, in 2009, after he came to Australia, his mother told him to return to Turkey as she had [a medical condition].  His mother was not ill but had wanted to see him. She was disappointed however because he was still homosexual and had not “recovered” whilst in Australia as she had hoped.

29. The applicant claims his father would not provide financial support for him to obtain another [temporary] visa to return to Australia. When the Tribunal suggested his father might have preferred him to return to Australia so he did not have to be ashamed of him in Turkey, the applicant said his father no longer considered him to be his son and would rather say his son was dead than homosexual. The applicant lived at home with his family after he returned to Turkey.

30. The applicant stated he worked in a [shop] in [City 1] in 2009 and 2010. He claims he was sacked after a customer identified him as homosexual. When asked how the customer identified him, the applicant said lots of people knew him in [City 1] and, when he went to help the customer, the customer said, “how dare you come and help me” and complained to the boss. When asked why, if he was well known as a homosexual in [City 1], the shop owner didn’t know about his sexuality, the applicant said that everyone in his area knew but the shop was in a more luxurious area. The applicant claims he was unable to secure another job.

31. The applicant claims his father’s business went bad after his homosexuality became known in the area and his father had to close the business after the applicant came to Australia.

32. When asked if he had considered moving to Istanbul where homosexuals are reportedly able to live openly, the applicant said the Turkish authorities don’t accept homosexuality.

33. The applicant claims that a friend of his father called [Mr C] eventually provided financial support to enable him to obtain another [temporary] visa. He does not know the degree of the friendship between [Mr C] and his father but they knew each other. When asked why he approached [Mr C], the applicant said he asked lots of people for help and [Mr C] agreed. When asked why [Mr C] would do something which might upset his father, the applicant said he does not know if [Mr C] told his father. He claims [Mr C] gave him $[amount] in cash and provided banks statements. He offered to repay as soon as he could.  The applicant claims [Mr C] dealt directly with the agent preparing the visa application and did everything necessary.  The applicant stated he has had no contact with [Mr C] since coming to Australia and has not re payed any money to [Mr C].

34. The Tribunal put to the applicant pursuant to s424AA of the Act that his [temporary] visa application contains a letter from his father dated [in] April 2010 and entitled [temporary] Visa Application Guarantee in which his father guaranteed to pay all [his expenses] and enclosed bank statements; a letter from [Mr C] witnessed by his father; and financial documents relating to his father. The Tribunal put to the applicant that these documents indicate the applicant’s father supported the [temporary] visa application and did not prefer him to be dead. The applicant said he had no idea about these documents and had no involvement in the preparation of the visa application and that [Mr C] may have obtained the information from his father. The Tribunal also noted that the applicant named his father as his contact person in his home country on the visa application. The applicant said his father may have done this for him but didn’t tell him.

35. The applicant‘s father visited the applicant in Australia in about September 2010.  The applicant told the Tribunal his father called him one day and said he wanted to see him and the applicant wrote a letter of support for his father’s visa application.

36. When asked where his father stayed in [Australia], the applicant initially said he did not know then said his father went straight from the airport to where the applicant was renting a room in [suburb] and that they immediately argued. The applicant claims his father told him he had destroyed his father’s life and his father could not look his friends in the face because people always asked him, “is your son gay”. The applicant claims he immediately packed a bag and took a train to [another suburb] where he got a job [and] stayed for two years. The applicant claims he has not had any contact with his father since the argument. He claims he talked to his mother a couple of times after the argument however his mother told him she was scared to contact him, he doesn’t know why, and cut off contact. He hasn’t tried to contact her. He told the Tribunal he misses his family but has no other choice and it is best for him and them.

37. When the Tribunal noted that the applicant’s father came a long way to tell the applicant he had ruined his father’s life, the applicant suggested his father might have wanted to do a bad thing to him but he ran away. When the Tribunal noted that his father’s conduct was inconsistent with his support for the applicant’s [temporary] visa application just two months before hand, the applicant said he did not know about that support and does not know what happened during that two months.

38. When asked if he tried to contact the homosexual community or support groups in Turkey, the applicant said it was very hard to ask for help because other homosexuals would be treated in the same way as he was being treated. The applicant said there are such groups in Turkey but he doesn’t think they have any members and it’s just a ploy to get into the European Union.

39. The Tribunal discussed country information with the applicant which indicates there is little official discrimination against people on basis of sexual orientation in Turkey - homosexuality is not illegal and sodomy is not a crime. There are NGOs in Turkey which support homosexuals and homosexuals live openly in parts of Istanbul and other cities.[1] The Tribunal asked the applicant why, if he felt comfortable with his sexuality, he did not make contact with the homosexual community or support groups in Turkey. The applicant disputed the country information above and said he has come from those gay groups and seen how they were tortured and no-one can live comfortably as a gay person in Turkey.

    [1] DFAT, 2016, DFAT Country Information Report Turkey

40. When asked if he has any contact with the homosexual community in [Australia], the applicant said he goes to [a named venue] in [suburb] every now and then, especially on Sundays. When asked how often he goes, the applicant said every fortnight or once a week, as much as he can.

41. When asked if he has made any friends in the homosexual community in Australia, the applicant said he has and that’s why he goes to the [named venue].[2] He sometimes goes to the beach or the cinema, just like normal people, he gets on with life.

    [2] [Deleted.]

42. When asked if he has a circle of friends in Australia the applicant said he has one night stands and no ongoing relationship. When asked if he considered bringing a friend to the hearing to give evidence in support of his claim, the applicant said the friendships are just casual.

1. When asked if he has had any involvement with homosexual support groups in Australia, the applicant said he has been to social places but usually he just meets people. Because gays are free in Australia, they don’t need any help.

2. When asked to describe the difference between being homosexual in Turkey and in Australia, the applicant said he is a human here but in Turkey he is worse than a dog. Gays have no rights in Turkey but people are punished for hurting a dog.

3. When asked how he feels as a homosexual person in Australia, the applicant said he feels really comfortable. He does what he wants. He goes to gay places or festivals or communities. When asked what gay festivals he has been to, the applicant said there was a gay festival at [a location] when he was [interstate]. He said he can go anywhere and people like and respect gays. When asked if he thinks there are any issues for gay people in Australia, the applicant said things are quite free here: people don’t say, “oh you’re gay” and punish you.

4. The applicant told the Tribunal he has not yet completed his military service in Turkey and claimed he will not survive it. He also stated he would [study] in Turkey if possible.

5. The applicant provided several articles and reports and relating to homosexuality in Turkey.
   
   Findings

6. The Tribunal has carefully considered the applicant’s evidence in its entirety and does not accept he is a homosexual.

7. In reaching this finding, the Tribunal acknowledges that there is no standard way of identifying or expressing one’s sexuality and that each individual processes their own experiences and takes their own path. However, the Tribunal finds the applicant’s evidence in relation to his sexual identity and expression to be vague, shallow and without the insight and emotion the Tribunal expects he would have experienced as a young man coming to terms with being homosexual in a conservative Muslim society.

8. The Tribunal considers the applicant was unable to describe in any meaningful way how he came to accept and feel comfortable with his sexuality in an environment which the applicant himself describes as hostile to homosexuals and considers the applicant would have felt quite conflicted and been able to articulate his fears and emotions had he gone through this process as a teenager as he claims.

9. The Tribunal considers the applicant’s evidence that he felt happy and comfortable about his sexuality after allegedly being caught in a sexual act by police, locked up, threatened and possibly assaulted and ostracised by his family and friends to be unlikely and to lack any expression of emotions such as anger and shame and fear which the Tribunal expects the applicant would have felt after such an experience at a young age.

10. The Tribunal considers some aspects of the applicant’s evidence to lack credibility. The Tribunal does not accept the applicant would have made a homosexual advance to a teenage school friend in 2002 whilst his friend was watching heterosexual pornography and therefore unlikely to welcome the advance. The Tribunal does not accept the applicant’s family sent him abroad to a liberal western country such as Australia where homosexuals are able to express their sexuality openly in the hope it would “cure” his sexuality. The Tribunal does not accept the applicant’s family were ashamed of him or preferred he was dead given he returned to live with them in 2009. The Tribunal does not accept the applicant would have engaged in sexual activity in a public park in his hometown given his claimed fear of being identified as homosexual. The Tribunal does not accept the applicant’s father no longer regarded him as his son and refused to support his [temporary] visa application in 2010 given his father provided letters and documents in support of the application. The Tribunal does not accept the applicant’s father then travelled to Australia two months later merely to accuse the applicant of ruining his life. Further, the Tribunal considers the applicant’s claimed fear of being identified as a homosexual to be inconsistent with his claim to have been felt happy and comfortable with his sexuality.

11. The Tribunal also considers the applicant’s evidence about his involvement with the homosexual community in Australia to have been vague and considers the applicant would have been able to provide more detailed evidence about that involvement including being able to name places and festivals he had attended (other than the [named venue]) if he was comfortable and happy with his sexuality and freely expressing himself as he claims.

12. For the reasons above, the Tribunal does not accept the applicant is homosexual. It therefore does not accept he was shamed or ostracised or beaten by his family, friends or community; that he was arrested and mistreated by the police in 2008; that he was assaulted on the sea front and taken to hospital; that he was sacked from his employment or that his father lost his business because of his homosexuality. As the Tribunal does not accept the applicant is homosexual, it does not accept he will suffer any harm in Turkey because of his sexuality.

13. The Tribunal accepts the applicant will have to complete his compulsory military service unless he is able to obtain exemption. As the Tribunal does not accept the applicant is homosexual, it does not accept he will suffer any harm in the military because of his sexuality.

14. In making its findings, the Tribunal has had regard to a psychological report dated [in] July 2016 prepared by a psychologist who saw the applicant once [in] July 2016.  The Tribunal notes that findings of fact and credibility in relation to past and future harm are matters for the Tribunal and not the psychologist and places no weight on the psychologist’s conclusions on these matters. The Tribunal accepts the applicant may have been manifesting signs of [specified conditions] on the date of the assessment but does not accept, for the reasons set out above, that these conditions have been caused by or are related to the applicant being homosexual.

15. Having regard to the evidence and findings above, the Tribunal does not accept the applicant faces a real chance of suffering serious harm now or in the reasonably foreseeable future because of his membership of a particular social group of homosexuals in Turkey.

16. Having regard to the evidence and findings above, the Tribunal does not accept the applicant faces a real risk of suffering significant harm if returned to Turkey because of his sexuality. 

    CONCLUSION

17. 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).

18. 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).

19. 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

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

    Rea Hearn Mackinnon
    Member