1418335 (Refugee)

[2016] AATA 3878

1418335 (Refugee) [2016] AATA 3878 (24 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418335

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Rodger Shanahan

DATE:24 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2016 at 9:38am

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

3. The applicant appeared before the Tribunal on 2 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [name deleted].  The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Protection Visa Application

4. The applicant claims he is at serious risk of being harmed if he returns to Turkey because he is gay.  His parents had found this out and were trying to force him to return to Turkey and had already received serious threats from his father because of the shame this meant for the family since his father found out in April 2014.

5. The applicant came from [Province 1] in Turkey until he left to come to Australia in September 2010.  He was forced by his parents to attend religious courses in the village during holidays but refused to do so when he was in high school.  His parents were strong Muslims and nationalists.  As well as his father wanting to kill him his mother refuses to talk to him and the relatives on his mother’s side are much worse than those on his father’s side.

6. He did well at school and searched the internet for places where his sexual preference would be respected – he was also concerned about his compulsory military service.  He had planned to do a university course after learning English so he could gain permanent residency.  His parents agreed to fund him as they were able to financially support [him].  He studied at [an educational facility].  He had travelled to Turkey twice to visit family since he had been in Australia.

7. He was attending his course and had no problems until late March 2014.  His father found out about his sexual preferences through a friend in early April 2014 who shared a photo taken at mardi gras on Facebook and told his father that the applicant was gay.  His father ceased funding his studies.  He could not cope and his flatmate insisted he seek professional help.  He could not attend his school.

8. He first became aware of his sexual orientation when he was [age] and had a sexual experience with a male friend.  They hid it after that although he fantasised about it for a long time.  He was bullied at school about it but when he arrived in Australia in September 2010 he felt much better.  He has been to gay clubs and the mardi gras and had a short-term sexual relationship with a man that lasted for a few months.

   Tribunal Hearing

9. The applicant claimed that if he returned to Turkey he had not done his military service and had not been able to have it deferred.  He would be arrested at the airport and treated as a draft dodger and his family informed.  His father had told him over the phone that he would get some other people to beat him and kill him, and/or force him to get some medical treatment and to get married. 

10. The medical treatment was about his sexual orientation and he was asked if this was a separate claim. He claimed that his father would kill him and the community, who are generally homophobic would threaten him.  People in the community knew he was homosexual and he feared that he would be harassed, injured, excommunicated and killed.

11. He became aware that he was gay when he was [age] and had a sexual contact with a friend called [Mr A] during a holiday in his father’s village. [Mr A] became frightened and scolded him and left.  He was afraid [Mr A] would tell his family but he didn’t.  He hid his sexual orientation in Turkey and never had a relationship there; he was under [age] and dependent on his family.

12. He came to Australia in September 2010.  He had chosen Australia specifically because it was one of the best countries for its education and the way in which gays were treated.  The positive environment for gays was one of his motivating factors for coming here.  He had done some internet research on the situation for gays and had looked at other countries but Australia appeared to be the best; he also wanted to be physically far away.  He didn’t know anyone in Australia when he came.

13. He studied English for a year then enrolled in [a course], finished this and then enrolled in [a second course]. Two or three weeks after he enrolled some incidents occurred and he had to stop studying.  He began studying English in October 2010 for a year.  The [first course] was from the end of 2011 and he finished in August 2013.  He enrolled in [the other course] at the end of October 2013 and he studied for a month and a half and then studied from mid-February, but an incident occurred in early April 2014.  He had passed his subjects until this point.

14. Asked how he explored his sexuality from the time he arrived in Australia, he claimed that he was [age] when he arrived and couldn’t speak English.  He stayed in [suburb] with a [family] for a month then lived in [another suburb] with a Turkish friend then moved to the city for a few months in shared accommodation with non-Turkish people he found on the internet.  This was May and he had some English by this stage.  His father paid the school fees and he worked in [a] shop for the first four months. 

15. Since then he has worked in [suburb] for three years. He had a bank account with [a bank] for a few months but he had closed it around 2011 because of problems he had with the bank.  He had an account with [another bank] but had closed this in 2013 because it was extra and he didn’t want to pay two sets of fees.  He also had an account with [a third bank] at the end of 2011, which he continued to operate.  He didn’t know why he had two accounts but was trying to save money.  His father sent money to the applicant’s student agency.

16. Regarding his gay journey from September 2010, he claimed that he took part in Mardi Gras in 2011.  Asked if he was part of the parade and on a float, he claimed that he just watched it.  When he was in the city he used to go to clubs occasionally as he was still feeling the pressure of having to hide his sexuality from Turkey.  Towards the end of 2013 he began to meet a few people and kissed them; this was at a club at [Suburb 1].  He couldn’t remember the name of the club, but may have been called ‘[name]’.

17. Asked if he had a relationship, he claimed his first boyfriend was [of Ethnicity 1] called [Mr B].  They met a few times, he gave [Mr B] his number and they met where he was staying at.  He was staying at a [location] at [Suburb 1] but couldn’t remember the name of it.  He was asked why he couldn’t remember the name of the place where he met his first boyfriend or where he first had sex.  He claimed he didn’t pay much attention to these things.

18. They went for dinner and held hands when walking and had coffee.  The restaurants were on the street in [Suburb 1].  They had a casual relationship for about two months. It was around December 2013 and January 2014 and finished because [Mr B] didn’t meet him.  He didn’t know [Mr B’s] family name as they just address by first names, never family names.  He was asked why this was the case given this was his first sexual partner and went on for a couple of months; they met and went to dinner.  He claimed again he never asked. 

19. He claimed that [Mr B] called him through [Mr B’s] friend’s phone as he had no fixed number.  Asked where they had sex, he claimed it was at the place [Mr B] stayed at.  They would meet at the train station and they had sex twice at the place he was staying.  It was like a [deleted] place but he had no idea of the name.  Asked if he had ever been asked by DIBP about the name of the location where he had sex, he claimed that he had not been asked.

20. Asked if he had tried to contact any LGBT organisation prior to meeting [Mr B], he claimed that because of his age, the pressures he felt under, it wasn’t until after he attended mardi gras and a few clubs that he felt more confident.  It was put to him that he had attended mardi gras not long after he arrived and had deliberately come here because of the attitude to gays and was asked why he didn’t go to any LGBT groups.  He claimed he didn’t because he lacked confidence; it was out to him that he had said one of his main reasons for choosing Australia was for its attitude to gays. 

21. He repeated that he didn’t have self-confidence but it improved even though he still felt pressure. In the early period his English was also not good.  For these reasons he didn’t live openly as a gay.  It was put to him that he completed a year-long English course in October 2011 and was asked what he did about his gay orientation.  He claimed that in 2012 and 2013 he also watched the mardi gras.  It was put to him that hundreds of thousands of people watched the mardi gras and they weren’t gay.  He claimed it made him more confident by going to them.

22. Asked if he had any photos of [Mr B], he claimed there weren’t. He was asked why, given he had confidence in his identity and had a first boyfriend, he didn’t have photos of them.  He claimed he did have photos but he deleted them after [Mr B] left him.  He also stopped going to the clubs after he broke up with [Mr B] because he had some problems as a consequence.  He was depressed.  He was staying with a friend and recommended he go to a doctor.  He did this and was referred to a psychologist [in] May 2104.  When he told the psychologist what he had experienced she told him that he would be eligible for protection because he would be persecuted on return to Turkey.

23. Because he was no longer able to pay the school fees because his father had stopped payment he feared that his visa would be cancelled.  Asked if he had been in any gay relationship since [Mr B], he claimed he met a boy in a club last year and chatted with him but he was not in any sexual relationship.  [Mr B] had been his only sexual relationship.  He claimed because of his upbringing he was not just looking for a sexual relationship.  It was put to him that not all relationships are about sex and that one could have a loving, non-sexual gay relationship.  He claimed he had this with a boy he met last year who was from [another city] and here for two weeks’ holiday.

24. The person had left and didn’t want to come to [where the applicant was] as his life was there.  Asked if he had any texts, emails or anything to indicate that he had a loving relationship with a person from [another city] and he claimed that he had some messages.  He was asked to provide them but then claimed they were just short messages about meeting and there had been no correspondence since he had left for [another city].  He was asked but could not offer any evidence to support his claim that he had been in any gay relationship – he was trying to find someone suitable for his age.

25. His father had found out he was gay.  The applicant had met someone at his workplace and used his camera during the 2013 and 2014 mardi gras.  He had not used it outside these times.  Asked if he had any of these photos, he claimed that he had used his own memory card.  The applicant normally took the memory card back but during the 2014 one he was a bit drunk and tired when he got home.  This person was staying with the applicant temporarily and he forgot that he had not taken the memory card out.

26. They had an argument at work the next day and the other person asked how he could be gay as a Turkish Muslim and that he would go to hell.  The applicant defended himself and told the other person that his children may end up gay.  The person was angry and then shared his photos on social media.  Asked if he had copies of these photos he claimed he didn’t.

27. After he spoke to his father he closed his Facebook account, broke his memory card and deleted all his photos on his mobile phone.  He didn’t know what he was doing.  Asked about the other person’s Facebook page, he claimed that because of the reactions he also closed his Facebook account.  Asked why the other person closed his account if he wanted to embarrass and punish the applicant, he claimed that he closed it because of the reactions from people he shared it with.  Asked why he didn’t just delete the photos rather than close his account, he claimed he only placed one photo and then deleted it.  But he was disturbed by other people and closed the account.

28. The applicant took his 2011 photos on his mobile phone.  It was put to him that the photos were good quality and why he needed to use a camera.  He claimed it was because he got a new phone.  It was put to him that as technology gets better, the camera in a newer phone would be even better than the one in 2011 that appeared to take very good photos.  He had an iPhone 5 currently.  His camera had broken on his current phone about a year or 18 months ago; he was asked why he hadn’t used it in 2013 or 2014 and he claimed that if he took photos the battery and the memory would be used up quickly. 

29. He was asked why he couldn’t clear the memory before he went to mardi gras and he claimed he had a 16GB phone.  The member said that he had had the same phone and used it without the problems he claimed, although the main concern was why he had had to borrow a camera for the types of photos he took. He repeated his claim.

30. After the photo appeared on the Facebook it was shared and when he came home at night his father called and began to swear.  The father condemned him and abused him, and when the applicant claimed he didn’t know what was going on he was told about the shared photo and accused him of being gay.  His father didn’t listen and his mother refused to talk to him.  He also told him he would stop sending money and that the applicant had to return home or the father would come to him.  This was [in] April 2013. 

31. The applicant had withdrawn from [the second course] just after this incident.  He was asked if he had any correspondence from the institute about the reason for his withdrawal.  He claimed that once he stopped paying his enrolment stopped.  Asked if he had any correspondence from or to them and he claimed there was none.  He stopped attending but wasn’t thinking much about it because of the pressure he was under.

32. He was asked if he saw any body after he stopped attending and he claimed there was no letter from them advising his enrolment had ceased.  He had not approached them either.  He did not know if his father had tried to come to Australia.  He spoke to no one in Turkey, but he received a few calls early on during the first month after the incident but none since then.  He had gone to the 2016 mardi gras and went as a spectator and went to the party after.  In 2015 he had taken part on a float – he had a video and was asked to provide this.  He said he had sent a lot and it was put to him that he had sent an enormous amount and there wasn’t much conclusive from what the Tribunal had seen – he was asked to provide anything he felt the Tribunal’s attention should be brought to.

33. It was put to him that the Tribunal had concerns that he was actually gay and he needed to provide what evidence he could that would convince the Tribunal that he was gay. Asked if there were any Turkish gay groups and he claimed that he was not aware of. Asked if there were any Turkish gay groups on the mardi gras, he claimed that he had not seen any that was ethnically Turkish.  He was asked what the situation was in Turkey for gay groups, and he claimed there was great pressure on the LGBT groups in terms of employment.

34. He agreed it was legal to be gay and there were gay organisations but they were small.  Asked how small, he claimed he didn’t know much about them as he hadn’t been to any of them.  Asked if he had done any research into the Turkish gay scene since he had been in Australia he claimed that he had but all he knew that there was discrimination against gays in employment as there was no protection and employment could be terminated.  Asked if this applied to private and public sector, he claimed one couldn’t be employed in the public sector and it was very hard for people in the private sector.  He was asked what he based this on and he claimed he had read news articles; asked what it said about the private sector, he claimed once sexual orientation was known, employment could be terminated.  He was asked to provide information to support this.  He knew of the gay pride marches and it looked like the mardi gras, in terms of the approach to them.

35. Asked what numbers turned up and where they were held.  He claimed last year it was stopped because it was during a religious period.  He was asked if it was shut down or just moved, and he claimed they were not allowed to do it at that time.  Country information was put to him that a few hundred people wer stopped but it re-started a few streets away and consuls from the UK and US attended.  He claimed that he meant that the police meant to stop it but they went away and demonstrated but for a short period. Until last year participation was getting larger and in 2012 or 2103 there was talk of 100,000 people.  It was put to him that it appeared quite free to express one’s sexuality.

36. He was asked when he first knew of these gay pride marches, and he claimed that he knew when he was in Turkey when he was [age] or [age].  He never watched them, but he knew of them when he was in Turkey.  Country information was put to him that there was an active gay scene with clubs in Istanbul, Ankara, Izmir.  He was asked why he couldn’t return and live in Istanbul where he was free to move.  He claimed there was homophobia in the community. It was put to him that this existed in every society.

37. He claimed that he couldn’t return to Turkey and hide his gay orientation.  It was put to him that there were gay travel guides to Istanbul and the scene appeared very active – he was asked what serious harm would befall him.  He claimed that if he was known to be gay then he would be harassed and threatened by colleagues and the employer and have to move work.  There may be death threats.  He was asked if there was any country information regarding death threats to gays in Izmir, Istanbul and Ankara and he claimed there was.  He was asked to provide this, and he was advised that there had been an incident in the past where someone was killed for being gay but the murderer was arrested and sentenced to life.  The Tribunal was unaware of people being killed in Istanbul for being gay. 

38. He claimed the person killed went to the prosecutors but they paid no attention to him.  He claimed this occurred in Istanbul in 2008; it was put to him that in a country of 75 million a gay person killed eight years ago may not prove to be anything other than a remote possibility.  He claimed a death occurred in 2012 and it was put to him that this was in Diyarbakir, well away from Istanbul.  He claimed that people in Istanbul who lived a gay life had the support of their families whereas he didn’t. It was put to him that he could find a job, and he repeated again that once it was known he was gay he would be threatened.  His family could find his address through his ID card.  His father could find his address through the population registry; he was [occupation].  He was asked how [occupation] could find out such information and as an adult over 18 he was not part of his family’s registration.

1. He claimed he would still be on their registry, and was asked how his address could be found out in a city of 15 million.  He claimed that his father had contacts with the police and prosecutor’s office and was asked why, given he was not part of the security services with access to personal information.  He claimed he had contacts over the years in many areas. This was how Turkey worked.

2. Asked why he would be arrested as a draft dodger, he claimed that he was worried that once his entrance to Turkey was recorded his family would be contacted asking why he hadn’t attended conscription and they would know where he was.  He claimed he would be detained when he arrived.  He was asked why he would be detained and the Tribunal was unaware that this was a practice in Turkey.  He was asked to clarify that people returning to Turkey would be detained if they hadn’t completed military service.  He claimed he had received a letter from the military saying that were looking after him.  He received this in November 2015 at his address in Australia. He was asked if people were routinely detained in Turkey at the airport if they hadn’t completed military service.  He was asked to provide country information to support this claim.

3. He claimed he would be made to undertake medical procedures and be forced to marry, he claimed that because he was the only male child he had to continue the line.  He was asked whether his father was going to kill him or get him married off.  He claimed his father had threatened to kill him, but even if he didn’t kill him he would force him to marry.

4. He was advised about s 91R(3) and 424AA .  It was put to him that he had claimed to have been aware of the gay pride marches when he was in Turkey but was too young to attend.  During the DIBP interview he claimed that he had never heard of these marches, and this could go to the issue of his credibility.  He claimed this was a misunderstanding and he meant that he was talking about a MP, not the gay pride march.

5. It was put to him that there were no questions about MPs in the lead up to the question so it could not have been mix-up.  He then claimed that he was referring to the fact that he hadn’t heard about 100,000 people attending the march.  He had heard this from the lady at the interview and hadn’t known about it.  He was asked why he didn’t know about this given it would have been big news in Turkish gay circles and he claimed there wasn’t much mention in Turkey, only foreign countries.

6. Under s 91R(3) it was put to him that he had applied for protection [in] June 2014 and was refused [in] October 2014.  The photos he had submitted appear to have commenced [in] November 2014 and he hadn’t contacted [Organisation 1] until January 2015.  He had made claims about a gay relationship but could provide no evidence regarding it or another relationship, nor any photos he claimed to have been taken.  The concern was that he may have tried to create a profile through staged photos and contacting [Organisation 1].  He had said he came to Australia to give expression to his gay identity yet done nothing to do this, and only provided evidence after he had been refused.

7. He claimed he only began preparing information after his psychologist helped him.  He had been under stress.  It was put to him that he had claimed he wanted to express his homosexuality by coming to Australia and had years to do so yet never made any attempt to do so.  He claimed he destroyed his evidence because he was heartbroken.  He only became aware of what he could do after he saw his psychologist.

8. Country information was also put to him that there was a Muslims against homophobia float was a Turkish-Australian woman with a float featuring Turkish drums.  Yet despite his interest in the gay identity he appeared to be unaware that there was a Turkish LGBT connection.  He claimed he was unaware of this.

9. A witness appeared for the applicant who said he had known him since October 2014 and had met at [a club]. They would meet for drinks three or four nights a month.  He believed the applicant as gay because it was obvious.  He claimed he went out with [an Ethnicity 1] guy but was reliant on the applicant telling him that this occurred. They had common gay friends and went to gay bars together, but he was unaware of any relationships.  He claimed he wanted to have a relationship but it was very hard in the gay community to have a relationship.  He was asked if he was a member of any gay groups and he didn’t.  He claimed the applicant met the [Ethnicity 1] guy on a gay App and may have met him at [a] nightclub.  He then said they met on the chat site and then went to the [nightclub].  He knew no other details about the [Ethnicity 1] person. 

10. It was put to the applicant that he had invited the Tribunal to call another witness by phone, and that the Tribunal had a statutory declaration form the witness.  He was asked if the person had any first-hand knowledge of the applicant’s claims or whether he would simply be repeating the applicant’s claims.  He claimed that the person was from [Organisation 1] and he said the information would be the same as in the statutory declaration.  The applicant was advised that if he wanted the Tribunal to take any more information from these people they could send a written statement, given they had no first-hand knowledge of his circumstances.  The applicant advised that he was happy with this approach.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant first arrived in Australia on a student visa [in] September 2010, and returned to Turkey between [May] and [June] 2011, as well as between [December] 2012 and [January] 2013.  He applied for a protection visa [in] June 2014.  I have sighted his passport and accept that Turkey is the applicant’s country of nationality. 

12. The applicant is a [age] year old single male who claimed that he would be harassed, attacked and killed and/or have medical procedures forced on him because he was gay, that he would be detained at the airport for being a draft dodger and his family informed, and that he would be forcibly married off by his family.  To the extent that it is relevant I have taken into account the DFAT Country Report – Turkey.

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

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

    Homosexuality Claim

15. I do not accept that the applicant is, or would be considered to be homosexual. Whilst there is no single set of questions or investigative methodology by which one can determine whether a person is homosexual, the applicant’s vagueness, lack of interest in the gay community until after his protection visa refusal and general lack of credibility means that I find that the applicant has deliberately falsified this claim.

16. I do not accept that the applicant was gay in Turkey.  He claimed that he knew of the existence of the gay pride marches in Turkey when he was [age] or [age] but was too young to attend.  This was inconsistent with what he said during the DIBP interview when he claimed that he had never heard of the marches.  I do not accept that this was due to a misunderstanding.  He initially said that he was talking about a Member of Parliament (MP) when asked this question, but when it was pointed out to him that there was no such reference made during the DIBP interview, he then claimed that he had meant he hadn’t heard about the crowd of 100,000 people who attended. Because I do not accept that the applicant was gay in Turkey, it follows that I do not accept that he had a sexual encounter with a friend called [Mr A] or that he was ever bullied at school because he was considered to be gay.

17. Despite claiming that he had expressly chosen Australia as a preferred destination to study because it was far away and he could express his homosexuality that he had allegedly supressed in Turkey, his actions since being here appear inconsistent with his alleged aim in coming to Australia. I am not satisfied on his oral evidence alone that he took part in the claimed activities and his photographic evidence is, as I explain later, has been lent little weight by the Tribunal.

18. I am not satisfied that his failure to seek out any contact with the LGBT community was because he lacked confidence, still felt pressured from his experience in Turkey and because in the early period his English was not good.  By October 2011 he had completed a year-long English language course that equipped him to attend and pass an English-language [course] which would indicate a level of language proficiency at least sufficient to contact any LGBT organisation if he so chose.  His inability to do so is, I believe, because he has never been gay.

19. He was vague and inconsistent regarding the one sexual and one non-sexual relationship he claimed to have had. Although he claimed to have had a two month-long romantic and sexual relationship with [an Ethnicity 1 man] called [Mr B].  He didn’t know [Mr B]’s family name nor did [Mr B] have any phone.  I do not accept that [Mr B] used his friend’s phone as he did not have one.  Not only is this convenient insofar as the Tribunal is unable to check any phone records (or travel records given his surname is unknown), it lacks credibility that [an Ethnicity 1 man] living for an extended period in Australia would not at least have purchased his own sim card to communicate with, and have to rely on a friend’s phone whenever he wished to communicate with someone.

20. Despite [Mr B] being the applicant’s first (and only) gay sexual partner, the applicant was vague and inconsistent on their meeting places.  He claimed that [Mr B] lived at [Suburb 1 location] which is where they had sex, but when asked to provide more detail, post-hearing he sent an on-line photo of [Suburb 1 another location] (folio 73), which is not consistent with his claim that [Mr B] was at a [certain location] at [Suburb 1]. It is reasonable to believe that the applicant would be more knowledgeable of the location where he had his only sexual relationship.

21. He was similarly vague when asked where he met [Mr B].  He claimed that he couldn’t remember the name of the club but when pressed claimed that it may have been called ‘[name]’.  Post-hearing he submitted an internet photo of the club (folio 74) which was called [another name].  Again, it is reasonable to believe that the applicant would have a better recollection of where he had allegedly met his only sexual partner.  There is also no evidence that would support his claim of a relationship with [Mr B]; no photos (he claimed he deleted them), nor any text messages that he had sent or received from [Mr B], or emails that would indicate a loving gay relationship.

22. I also do not accept that the applicant had a loving, but non-sexual relationship with a young man from [another city].  He did not offer the person’s name, nor could he provide any photos, texts, emails to support such a claim.  He claimed he had some messages about meeting with him and was asked to provide them, however none were. 

23. I do not accept that the applicant ever had a photo of him posted on Facebook by someone staying with him whom he had previously considered a friend, and that this became known by his father who subsequently threatened to kill him.  To begin with, I do not accept that the applicant would borrow someone else’s camera just to take photos at the mardi gras.  He had previously taken photos using his mobile phone, the quality of which appeared to be good.  If he was ‘participating’ in the mardi gras then it appears strange that he would want to be burdened by taking a camera just to take photos when he had the ability to take photos on his iPhone.

24. Regardless I find it lacks credibility that, having allegedly posted a compromising photo of the applicant in order to exact revenge on him, the friend would then delete his entire Facebook account simply because of the reaction he received.  I also find it convenient that the applicant is unable to produce any photographic evidence either because he deleted his Facebook account, broke the memory card and deleted all the photos on his mobile phone.  Rather, I find that the applicant’s inability to produce any evidence to support such a claim is indicative of a broader fabrication to explain why he has no evidentiary support for a claim to be gay until after his protection visa refusal (see below).  

25. Because I do not accept the applicant is gay or that photos of the applicant in a compromising position ever appeared on Facebook, it follows that his father has not seen any such photo, believes his son is gay or that he has threatened to kill him.  It also follows that he will not be forced to undergo a ‘medical procedure’ or that he would be forced into a marriage on return to Turkey.

26. I have taken into account the photos the applicant has provided showing him at what appears to be gay nightclubs, some of which show him kissing a number of different men, attendance at the mardi gras, witness statements and letters from a clinical psychologist and the [Organisation 1] LGBT drop-in service.  I lend them little weight.

27. The earliest of the photos that he has presented date from [November] 2014, a little over a month after he received his protection visa refusal.  The applicant has attended the mardi gras and he is seen in a number of photos kissing men, but the sense from the images are that they are staged, rather than intimate.  The same goes for the applicant wearing a t-shirt supportive of gay rights, appearing in night clubs or touching men during the mardi gras.

28. There is a complete absence of any evidence of contact of any kind with a gay community group prior to this, which it is reasonable to believe would have been undertaken by someone as keen to express his homosexuality in Australia as the applicant claimed to be.  I have taken into account the tickets to gay venues that he has presented.  As with the photos, I note that the tickets are dated [in] December 2014 (folio 75), [in] December 2014 (folio 77), and January and March 2016.  There is no evidence of the purchase of tickets to gay venues prior to his visa refusal [in] October 2014. 

29. The psychologists’ letter is based on an acceptance of the applicant’s claim to be homosexual, which I have found to be deliberately fabricated.  I also note that the letter recommends a positive visa outcome based on this claim.  Similarly, while the Tribunal accepts that the letter from the [Organisation 1] officer is given in good faith, like the psychologist’s letter it accepts the applicant’s claim to be homosexual and recommends a positive visa outcome.      

30. As a result of his lack of interest in homosexuality in Turkey, his lack of active interest in the gay community in Australia until years after he arrived in Australia, as well as his overall credibility issues, I believe that the applicant has told people that he is gay, taken photos in Australia, and attended [Organisation 1] for the sole purpose of strengthening his claim. As I advised the applicant during the hearing, in these circumstances s.91R(3) requires me to disregard this conduct in determining whether he has a well-founded fear of persecution.

31. I have also taken into account the witness’ statement and appearance. While I accept that the applicant has gay friends, the account of his relationship with [Mr B] relies on the applicant’s claim which I have found to be fabricated.  The statutory declaration also notes that he has attended mardi gras and gone to gay clubs which I have accepted, but offers no evidence as to his romantic activities.  It also claims that it is not safe for the applicant to return to Turkey, although this is based solely on the applicant’s claim which I have found to be fabricated.

    Detention for missing military service

32. I do not accept that the applicant will be detained on return to Turkey for being a draft dodger, or that his parents would be informed of his return as a consequence.  Country information[1] indicates that military service is compulsory for males between 19 and 40 but that those living abroad can apply for postponements of three years at a time until the age of 38.  In addition, those studying overseas or on a work permit for three years can pay a fee to have their length of service reduced from 15 to three months and that this is a major factor in motivating Turkish males to study or work overseas. If postponements were not applied for it is possible that people would be detained on return and sent to a military training facility and possibly charged with draft evasion.

    [1] DFAT Country Information Report TUR37881 dated 21 December 2010.

33. I am satisfied that the applicant has availed himself of the deferral.  He would have been due for his compulsory military service on his [age]^th birthday ([date]) and, if he had not gained a deferral it is reasonable to assume that he would have been detained at the airport when he returned to Turkey in December 2012.  Having gained one three-year deferral it is reasonable to believe that he would be able to continue to do so and has done so.  He could even have had his term reduced to three months’ service now that he has fulfilled the qualifying period for this scheme.

34. I lend little weight to the letter he claimed to have received saying that he was wanted as a draft evader (folio 53).  The letter has no letterhead and could easily have been produced on any home computer.  It is also not apparent why the [Province 1] Recruiting Office would know the applicant’s residential address in Australia that he moved to in January 2013.  Regardless, if Turks overseas can gain three year exemptions, it is reasonable to believe that this would fall on the birthday, so his first three year exemption would have run out in July 2014.  It lacks credibility that the recruiting office would then send a letter out about draft evasion in November 2015. 

35. Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

36. Because I do not accept that the applicant is genuinely homosexual, had compromising photos of himself posted on a now-defunct Facebook page, that his father believes him to be homosexual, or that he would be detained by the authorities on return to Turkey as a draft evader, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

37. Although I have disregarded his claimed expressions of his homosexual identity for the purposes of the applicant’s refugee claims, I have had regard to the conduct in assessing his claims relating to s.36(2)(aa).  I do not accept that this activity is genuine or that he would be perceived to be homosexual, now or in the reasonably foreseeable future.  

38. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

39. 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).

1. 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).

2. 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

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

   Rodger Shanahan
   Member

   
   

   ATTACHMENT A – RELEVANT LAW

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

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

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

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