1500440 (Refugee)

[2016] AATA 4722

1500440 (Refugee) [2016] AATA 4722 (5 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500440

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Frances Simmons

DATE:5 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 05 November 2016 at 5:35pm

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). The applicant is a citizen of Turkey of Kurdish ethnicity and the Alevi faith. He applied for the protection visa [in] September 2014 and the delegate refused to grant the visa [in] December 2014.  He claims that he has been detained and mistreated by the Turkish authorities in the past and that, if he returns to Turkey now, he will be persecuted because, in essence, he is a politically active Kurdish man of Alevi faith.

2. The applicant appeared before the Tribunal on 5 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant was represented in relation to the review by his registered migration agent. For the reasons that follow I have found that he is a refugee.

   RELEVANT LAW

3. 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.

   Refugee criterion

4. 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).

5. 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.

6. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

7. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

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’).

   Section 499 Ministerial Direction

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant provided a lengthy written statement with his protection visa application.[1] The information the applicant provided about his claims and circumstances in this statement can be summarised as follows. The applicant is a young man of the Kurdish ethnicity and the Alevi faith. He arrived in Australia on a [temporary] visa [in] February 2009. He has claimed that he is afraid of returning to Turkey because he will be at risk of being seriously harmed due to his ethnic identity, political opinion, as well as his Alevi faith.

    [1] Departmental file, folio 65-67.

11. The applicant is one of [number] children from an Alevi Kurdish family. His father’s parents were originally from [a] Kurdish region of Turkey, east of Ankara. They were forced to migrate from [that region] to [Province 1] [in the] late [1930s]. Both of his parents are of the Alevi faith. Most of his relatives are supporters of left-wing pro-Kurdish political parties. His father was highly active in worker’s union called DISK (Revolutionist workers union) he was detained and mistreated by police because of his role in the union especially when they were on strike. His father became involved in pro-Kurdish political party HADEP (People’s Democracy Party) in mid1995. His involvement in pro-Kurdish political parties continued over the years as they changed names following closures and he is now supporter of BDP (Peace and Democracy Party). His mother has not been as active of his father.

12. As the child of a politically active father, the applicant became interested in politics by reading politically motivated books and magazines. While he was growing up his father was detained for three days after attending a protest against the Sivas massacre. At high school the applicant’s political awareness increased as he became friends with people who supported left wing political causes and pro-Kurdish political parties. At university he had close connection with students from left-wing groups especially with the Marxist Leninist DHKP-C sympathisers. In 1999 ultra-nationalist students attacked the school canteen and assaulted them while they were protesting against high university fees.

13. The first time applicant was detained by the police was after Newroz celebration that they held in at university campus in March 2000. He was held in police custody for about 24 hours. He was badly assaulted and accused of having connection with “illegal separatist organisation”, the DHKP-C. He denied all allegations. He subsequently found out more than ten students had been arrested and interrogated on the same day and after this event he was worried he was followed. He started having problems with school administrations and lecturers. He believes that he was unfairly treated and marked down by lecturers and he claims that it took him longer to finish university because he had to repeat two subjects.

14. In early 2002 police raided his family home. They didn’t find anything but his father suggested he leave [the town]. In June 2002 the applicant moved to Kocaeli city where he found work as a mechanical technician at a construction firm. Most of the employees were Alevi Kurds. He visited the HADEP office a few months after he went to Kocaeli and he made friends with fellow HADEP supporters, as well as DHKP-C sympathisers. He attended political in support of pro-Kurdish causes and Alevi and Kurdish cultural activities, including Newroz and May Day celebrations as well as world peace day in Istanbul while he was working in Kocaeli between June 2002 and December 2004. He also attended some meetings organised by DHKP-C supporters.

15. In May 2004, soon after he attended May Day celebrations in Istanbul he was detained and interrogated by the authorities in Kocaeli and accused of encouraging people to attend unlawful protests and demonstrations. He was asked which illegal organisation he was working for. He told police that he attended May Day celebrations. He was asked about his friends who attended the May Day celebrations with him and his association with DHKP-C supporters. He was shown photographs taken at the celebrations while he was with DHKP-C supporters. He was assaulted during this interrogation. Eventually, the authorities were persuaded he did not have any link with any illegal organisation and he was released.

16. The applicant undertook his military service between 2005 and 2006. He had problems doing so because he was criticised for not fasting during Ramadan and when his friends discovered he was an Alevi Kurd he experienced discrimination and was physically assaulted and penalised for little or no reason. After military service the applicant returned to [Province 1]. Most people were supporters of left wing political organisations, such as DHKP-C or pro-Kurdish political parties, such as the DTP. The applicant participated in public commemorations of the Sivas massacre and regularly attended a [Cem Vakfi]. Most of the people who attended the Cem house supported left wing political organisations such as the DTP or the DHKP-C.

17. The applicant claims that in June 2008 he was detained and interrogated for two days before the commemoration of the Sivas massacre. He claims that he was tortured when he refused to admit he was connected with DHKP-C. He stated that in fact he was sympathiser of the BDP. He claims that he was interrogated about DHKP-C supporters who were arrested by police in May 2008 and police insisted he had information about them.  After the applicant was released, the police contacted his employer in September 2008 to ask about him. His employer is a friend of his father and his father was concerned about his safety in Turkey.

18. The applicant began making arrangements to leave Turkey. He left Turkey in February 2009 holding a [temporary] visa. He did not intend to remain in Australia permanently as he hoped the situation in Turkey might improve. He renewed his passport at the Turkish consulate in [2010]. He returned to Turkey in 2010 and 2012 and he did not have any difficulties. When he stayed in Turkey in 2012 he attended World Peace Day in Kadikoy and Kurdish political party offices and he did not experience any difficulties.

19. In June 2014 he attended the Turkish consulate to register to vote for the presidential election. He was asked some questions about his visa expiry date and his plans to return home by the consular officer. About a month later his police raided his family [home] (the address he had provided to Turkish consultate). The police advised his father that he was wanted in relation to investigation into an illegal organisation. He claims that he is worried that his contact with the Turkish consulate brought him to the attention of the authorities again.

20. The applicant also claims that there is growing hostility towards Alevi Kurds in Turkey and if he returns to Turkey he will be unable to express his political opinion and carry out political activity. He claims that his background shows that he is very committed to improving the rights of Kurdish people in Turkey.

21. The applicant was interviewed about his claims by the delegate [in] December 2014. After the protection visa interview the applicant provided further information in response to the delegate’s suggestion that the situation in Turkey is improving and there is the promise of peace talks to end the conflict between the Kurdistan Workers’ Party (PKK) and the Turkish government. He also submitted psychologist’s report dated [December] 2014.

22. The delegate refused to grant the applicant a protection visa. The delegate accepted most of the applicant’s claims as credible. Relevantly, the delegate accepted that the applicant is an Alevi Kurd who was born in [a town] in the province of [Province 1]. The delegate accepted that the applicant has experienced various forms of discrimination and harassment because of his Alevi Kurdish identity. The delegate found that the applicant was a supporter of the BDP and the DHKP-C in Turkey. The delegate accepted that the applicant was arrested and detained three times in Turkey as claimed.

23. However, the delegate did not accept that the applicant’s father’s [house] was raided by the authorities in July 2014. While the delegate did not specifically consider what political activity the applicant would engage in upon his return to Turkey, the decision record suggests that she considered his involvement in political activity would be minimal and, having regard to his substantial delay in applying for protection and his return trips to Turkey, as well as the available country information, the delegate concluded that the applicant’s claim that he would be harmed because of his Alevi Kurdish back in Turkey were not well-founded.

    Application to the Tribunal

24. The applicant provided a copy of the delegate’s decision record with his application for review. While the applicant was unrepresented before the Department, he acquired representation before the Tribunal. The applicant and his representative appeared before the Tribunal on 5 May 2016. Where relevant his evidence is discussed further below in the Assessment of Claims and Evidence.

25. The applicant also provided additional documentation and submissions to the Tribunal, including:

    a.A psychologist’s report dated [date]/04/2016 about the applicant in which the psychologist expresses the views that the applicant has symptoms of PTSD and these symptoms are, in the opinion of the psychologist, the direct result of his experience of persecution in Turkey. The applicant has been a client of the psychologist since November 2014.

    b.Photographs of the applicant at the HDP election office and protesting against attacks on the HDP office, attending a conference of the HDP [official], and at various events that were organised by the [Organisation 1]; rallies in solidarity with Syrian Kurds in Kobane, and of Newroz celebrations at the [Organisation 1].

    c.A statutory declaration by [a] ‘dede’ (spiritual leader) at [Organisation 2], stating that he is an Alevi Kurd and that he met the applicant in May 2014 when he was introduced to him by another Alevi Kurd. He is confident the applicant is of the Alevi faith.

    d.Submissions concerning country information about the treatment of Alevis, Kurds and the supporters of the HDP, as well as copies of various news reports about the treatment of Alevis, Kurds, and political activists in Turkey.

    e.A four page statement by the applicant providing additional information and details about his political activity in Australia, including his attendance at various protests and demonstrations and his involvement with [Organisation 1] in [Suburb 1].

    f.Submissions from the applicant’s registered migration agent.

    g.A support letter from the [Organisation 1] stating the applicant has been known to the association and community members for over three years, has attended association gatherings on weekends, such as social events, such as Newroz New Year celebration. The letter also states that has attended political events, protests and demonstrations organised by the [Organisation 1] and voluntarily participated in [City 1] HDP election offices activities for the general elections in June and November 2015.

    h.A support letter from the treasurer of [Organisation 2] [confirming] he had known the applicant since 2012 and that he had participated in various community activities.

    i.Various photographs of the applicant engaging in activities at [Organisation 2].

26. At the hearing the applicant confirmed the information he had provided about his birth place, education, military service and work in Turkey. He confirmed that since he first arrived in Australia he has arrived he has been back to Turkey twice: once for around a month in November 2010 and then for around four months in 2012. On these occasions he travelled in and out of Turkey on his own passport. He did not have any trouble travelling in and out of Turkey on his own passport. The applicant has a [Country 1] partner in Australia. She is pregnant and they plan to marry. They have not considered living in [Country 1] because his partner’s family don’t like him and don’t want him to go to [Country 1].

27. At the hearing before the Tribunal the applicant reiterated his claims about his past experiences in Turkey and expanded upon some details and clarified other aspects of his evidence. He reiterated that he had been detained three times by the Turkish authorities, most recently [in] June 2008 when he was held for two days by authorities in [Province 1]. He claimed that in 2008 he was questioned about DHKP-C supporters who had been arrested and whether he knew various people who had been arrest on suspicion of supporting the DHKP-C. He claimed he did not know any of the people he was asked about and he was not actually involved with DHKP-C although he knew people who supported the DHKP-C, he was sympathetic to some of the political views of the DHKP-C (although not the actions of their military front), and he had attended May Day rallies with the DHKP-C . He claimed that on the three occasions on which he detained he denied the accusations the authorities put to him and he was released. During the hearing it was submitted that Kurdish activists who engages in protest activity are at risk of being harmed. The applicant’s political activities and views both in Australia and in Turkey were discussed at some length and, where relevant, his evidence is referred to below in the Assessment of Claims and Evidence.

28. At the hearing the applicant was asked about his political activity in Australia and the Tribunal explained the operation of s 91R(3) of the Migration Act. The applicant expanded upon his evidence about his political activity in Australia and his involvement with [Organisation 1] and [Organisation 2]. He claimed that the situation in Turkey has deteriorated since the breakdown of the peace process and even though he does not come from an area in South-eastern Turkey that is affected by the conflict, as a person of Kurdish ethnicity who wanted to express his views he would have problems. The Tribunal invited him to comment upon its concerns about the credibility of his claims that he attracted the adverse interest of the Turkish authorities because of his claimed political activities in Australia, as well as its concerns about the timing of his political activity in Australia. Where relevant the applicant’s evidence is discussed further below in the Assessment of Claims and Evidence.

29. During the hearing the Tribunal observed that the ceasefire between the Government and the Kurdistan Worker’s Party (PKK) had broken down in July 2015 after being in place since March 2013 and that this had an immediate impact in the south-eastern areas of Turkey directly affected by the resumption of hostilities but that the applicant was not from south-eastern Turkey. I referred to a report from the  2016 UK Border Agency which  provided a detailed consideration of country information, including consideration of reports referred to by the applicant’s representative, and it concluded that even when taken cumulatively the discrimination faced by Kurds does not in general amount to them being subject to action on the part either of the populace or the authorities which would amount to persecution within the terms of the Refugee Convention or otherwise constitute cruel or inhuman or degrading treatment. I put to the applicant that this assessment was consistent with earlier assessments by DFAT about the situation of Kurds in Turkey. The applicant responded by claiming that it is not only Kurds who are in the south-east of Turkey who are being persecuted. He claimed that the war will worsen and the government will close down the HDP and the government persecution for people who do not support the government will increase. He said when he was at university at the time they did not have a Kurdish party in the parliament. He supported the DHKP-C because they supported the socialists and oppressed people. He testified that he did not support DHKP-C military front because he did not support the use of violence to achieve political objectives.

1. During the hearing I discussed with the applicant his claims to have supported the BDP and I put to him that his involvement with the BDP appeared to be limited.  I invited the applicant to comment upon country information about the risks facing members of the HDP (into which party the BDP has now been subsumed). I put to the applicant that a recently published report about the risks facing the HDP supporters from the UK Border agency concluded that those at particular risk of adverse attention by the authorities include senior members of the HDP and HDP members suspected of involvement with the PKK or suspected of supporting autonomy for Kurdish people. While ordinary members of the HDP have come to the adverse attention of the authorities, this has generally been whilst participating in demonstrations and rallies; an ordinary member would not otherwise generally attract the adverse attention of the authorities on account of their political beliefs.[2] Although the situation had changed somewhat since DFAT’s report in June 20014, DFAT assessed that the risk of harassment of Kurdish members of the BNP through the legal system is low.

   [2] United Kingdom: Home Office, Country Information and Guidance - Turkey: HDP (Peoples' Democratic Party), March 2016, Version 1.0, available at: >

   I also discussed with the applicant country information about the treatment of those of the Alevi faith, who comprise about twenty to twenty-five per cent of the population in Turkey.[3] I put to the applicant that while this country information indicates that while there is a level discrimination against Alevis in Turkey and a small number of reports of ill-treatment by the authorities and of societal discrimination and violence, it does not support the conclusion that Alevis in Turkey are unable to practise their religion or that all Alevis face a real chance of serious harm or significant harm because of their identity as Alevis.

   [3] United Kingdom: Home Office, Country Information and Guidance - Turkey: Alevis, February 2016, Version 1.0, available at: >

   After the hearing the Tribunal wrote to the applicant to provide him with a copy of a Country Information Report on Turkey published by the Australian Department of Foreign Affairs and Trade (DFAT). The Tribunal expressed the preliminary view is that the new DFAT Country Information Report does not raise any new issues that would require discussion at a further hearing. The applicant’s representative replied agreeing with the Tribunal’s preliminary view. A further DFAT Country Information report was published on 5 September 2016 in the aftermath of the attempted coup, which the Tribunal has considered.

   ASSESSMENT OF CLAIMS AND EVIDENCE

2. On the basis of his Turkish passport I find that the applicant is a national of Turkey and that he has no right to enter and reside in any other country. His claims to protection will be assessed against Turkey.

3. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[4] I am also mindful that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[5]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]

   [4] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).

   [5] MIMA v Rajalingam (1999) 93 FCR 220

   [6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

4. I accept that the applicant is of Kurdish ethnicity and the Alevi faith who was born in [a town] in the province of [Province 1], Turkey. I have some concerns that the applicant may have exaggerated the difficulties he has had because of his involvement in politics in Turkey. In particular, while the applicant may have had some association with DHKP-C supporters whilst at university, I consider he has exaggerated the extent of his political activity in Turkey and, in particular, his claimed support for, and association with, the DHKP-C.  However, on the evidence before me, I am prepared give the applicant the benefit of the doubt and accept his evidence that he has been politically active in support of pro-Kurdish causes in Turkey, where he was involved with predecessors to the HDP, including the BDP, and attended various public demonstrations and rallies, such as May Day demonstrations, as well as events commemorating the Sivas massacre and various Kurdish and Alevi cultural activities. I also accept that in Australia the applicant has been involved with [Organisation 1] in [Suburb 1] and attended various demonstrations and public events, such as May Day demonstrations, in support of pro-Kurdish causes and Kurdish politicians.

5. I accept, based on the evidence before me, that when he was in Turkey the applicant considered himself to be a supporter of the DTP and then later BDP, now the HDP.  The applicant appears to have been a low level supporter of the BDP he was not ever a member of this party. I accept he express his support for the BDP by attending various public political rallies and demonstration, such as May Day, and that he associated with BDP supporters and encouraged others to support the BDP. The DTP, which is now defunct, was succeeded by the Peace and Democracy Party (Baris ve Demokrasi Partisi – BDP). In relation to pro-Kurdish groups, in 2014  the Department of Foreign Affairs and Trade (DFAT) has reported that:

   The PKK is the leading Kurdish opposition group in Turkey. The PKK was founded in 1978 by a group of radical Kurdish students, led by Abdullah Öcalan. Öcalan was captured by Turkish security forces in 1999 and remains imprisoned, but continues to wield significant influence over the organisation and the direction of the peace process. …..The PKK is listed as a terrorist organisation by Turkey and by many Western countries, including Australia.

   The pro-Kurdish Peace and Democracy Party (Turkish: Barış ve Demokrasi Partisi, BDP) is the predominant political representative of Kurdish views in Turkey. The BDP was founded in 2008, following the closure of a series of other pro-Kurdish parties [including HADEP and the DTP, deemed to be terrorist organisations by the Turkish government or unconstitutional].  The BDP takes its lead from and normally represents the political views of Abdullah Öcalan, the PKK and the KCK [Union of Kurdistan Communities].[7]

   [7] DFAT, DFAT Thematic Report, Kurds in Turkey, 2 June 2014.

6. The BDP has merged with the People’s Democratic Party (Halkların Demokratik Partisi – HDP) in 2014 to contest the 2015 elections. In the general elections of 7 June 2015, the HDP won 13.1 per cent of the votes and 80 seats in the 550-member parliament. In doing so, it became ‘the first pro-Kurdish movement to enter parliament as a political party, rather than through independent candidates – a method used to get over Turkey’s unusually high 10-percent electoral threshold.’[8] In the snap elections held on 1 November 2015, the HDP vote declined to 10.8 per cent, resulting in a loss of 21 of the 80 seats it had won in June.

   [8] Uras U 2015, ‘HDP: Party of Turkey's oppressed?", Al Jazeera, 29 October 2015 <CXBD6A0DE17621>

7. While the delegate accepted that the applicant was a DHKP-C supporter as well as a BDP supporter, I find that the applicant’s evidence at the hearing indicates that he did not actually actively support the DHKPC and, having considered his evidence about his political activities in Turkey and Australia, I find that he would not be motivated to support the DHKP-C in any way if he returned to Turkey. The DHKP-C is a Marxist-Leninist organisation which has the aim of seeking to overthrow the existing Turkish system of government by armed revolution. In 2013, the BBC reported that the banned group wants to replace the Turkish government with a Marxist one and opposes what it calls US imperialism. The BBC report, which carries a photographs of DHKP-C supporters attended May Day celebrations in Istanbul, continues:

   The DHKP-C is branded as a terror organisation by the US and the EU.

   The group has claimed a suicide attack against the US embassy in Ankara which killed the bomber and a guard on 1 February 2013.

   During the previous month, Turkish police made more than 80 arrests in raids targeting the group.

   Among those detained were students, lawyers, reporters and even members of a pop group who were thought to have links with the DHKP-C.

8. According to the BBC, in its early years the DHKP-C recruited supporters mainly in high schools and universities, although analysts say its main power-base is among the urban poor.[9] Other sources report that traditionally, ‘the DHKP-C has recruited primarily, though not exclusively, from Turkey’s heterodox Alevi minority’.[10] Reuters reports that the DHKP-C and PKK were both formed in the 1970s with similar leftist ideologies and have cooperated in the past, although the former pursued a virulently anti-American and anti-imperialist path while the latter focused on Kurdish identity.[11]

   [9]Profile: Turkey's Marxist DHKP-C, BBC News, 2 February 2013 <  >

   [10] ‘Turkish leftists claim attacks before Kurdish Rebel Ceasefire’ Reuters, 20 March 2013 < >

   During the hearing the applicant was questioned about his views about the DHKP-C. He gave evidence that he did not support the use of violence to achieve military objections and the armed front of the DHKP-C but he did sympathise with what he described as their political wing and socialist objectives. The applicant explained that he believed he was suspected of being involved in the DHKP-C because he met people at university who were DHKP-C supporters and, whilst at university he had attended some meetings of the DHKP-C, and distributed the DHKP-C magazine, Kurtulus.  On the evidence before me, I am not satisfied that the applicant supported the DHKP-C in any way since university. Further, I consider his own evidence indicates that he considers himself to be a supporter of the BDP, not the DHKP-C. However, having regard to the involvement in the DHKP-C in May Day celebrations and other political gatherings which the applicant has attended and the possibility that he had some association with DHKP-C supporters at university, I accept that it is possible that the applicant may have been briefly detained in the past and questioned about whether he had knowledge of DHKP-C supporters.

9. In contrast to membership of DHKP-C, which is banned in Turkey, membership of the HDP and the BDP is legal. While DFAT has assessed that ‘there is a high level of cohesion and linkage between the PKK, KCK and BDP’, it remains unclear how many members of the BDP are also affiliated with the PKK or KCK and as these organisations, as well as DHKP-C, are illegal, members of the BDP would be reluctant to reveal any links between the organisation. In September 2016 DFAT reported that:

   Between 2009 and 2011, the state detained nearly 8,000 mostly Kurdish people on the basis of their links to the PKK and the 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. Many of these people remain in detention.[12]

   [12] DFAT Country Information Report - Turkey, 5 September 2016, paragraph 4.12

10. The applicant has claimed that he has been detained and mistreated by the Turkish authorities in the past because of his political activity in Turkey. Reports suggest that Turkish anti-terrorism legislation has often been used as a pretext to arrest a wide range of persons associated with, or believed to be associated with the BDP.[13] Numerous sources report on such arrests, and indicate that the profile of persons arrested included high profile BDP politicians, regular party members, as well as persons – such as academics or journalists – deemed sympathetic to Kurdish politics and the BDP.[14] There are also numerous reports of arrests of suspected members of the DHKP-C. Al-Jazeera reports that ‘[d]uring the Gezi Park protests, pro-government media routinely labeled nonviolent middle-class protesters as DHKP/C terrorists’[15]. In this context, I accept the applicant’s claims about his past experiences of being arrested and detained in Turkey are plausible. However, I consider the fact that the applicant was released on each occasion after a short period of time indicates that the Turkish authorities did not, at those times, consider him to be a member or active supporter of the DHKP-C.

    [13]  See, for e.g., DFAT Thematic Report, Kurds in Turkey dated 2 June 2014. See, for example: Krajeski J 2012, ‘The Hunger Strike’, New Yorker, 9 March 2012 <CX0D38E8E20613>

    [14] See, for example: Letsch C 2012, ‘Turkey puts 44 journalists on trial for terrorism and backing pro-Kurd group’, Guardian, 11 September  2012 <CX0D38E8E20614>; Human Rights Watch 2011, Turkey: Kurdish Party Members’ Trial Violates Rights, 18 April 2011 <CXCB3E63420966>; ‘BDP leader mentions progress in KCK case’ 2011, Hurriyet Daily News, 13 December 2011  <CXCB3E63420967> ; Abu-Rish Z 2011, ‘Turkish Politics, Kurdish Rights, and the KCK Operations: An Interview with Asli Bali’,  Jadaliyya, 3 November  2011 <CXCB3E63420964>; Jenkins GH 2011, ‘The Latest KCK Arrests: One Step Closer to Breaking Point’, Turkey Analyst, vol. 4, no. 21, 7 November  2011, <CXCB3E63420965>‘Closure of HDP put on agenda to intimidate pro-Kurdish party, say observers’ 2015, Today’s Zaman, 8 August  2015 <CXBD6A0DE17612>

    [15] Ode to Okmeydanı: Far-left group fights to save Istanbul neighbourhood, Al Jazeera, 27 September 2014, < >

11. As noted above, the delegate accepted the applicant’s claims that he had been detained, questioned and mistreated by the Turkish authorities on three occasions in the past, most recently in 2008. The delegate noted that the applicant was not charged after being questioned by the authorities even though there were ‘ample opportunities’ for the authorities to do so and concluded that the authorities were not concerned about the applicant in relation to his political profile. The delegate did not make specific findings about what political activity the applicant would engage in upon his return to Turkey her reasoning suggests that she considered any such political activity would be minimal and the delegate notes the applicant last participated in political activities in 2008. The delegate relied upon the June 2014 DFAT report, which reported  that Turkey’s political situation remained stable in reaching her conclusion that there was no real chance that the applicant would face persecution on account of his political opinion if he returned to Turkey. 

12. Since the delegate made her decision in December 2014 the ceasefire between PKK militants and Turkish military has broken down. I do not accept that, at the time the applicant left Turkey and travelled to Australia as a student, he was afraid of being persecuted in Turkey because of his past experiences with the Turkish authorities. As I discussed with the applicant a significant period of time elapsed between the occasion when he detained by the authorities in 2008 and his departure from Turkey in 2009 and he subsequently returned to Turkey on two occasions.  At the hearing the applicant argued that at these times he believed the situation in Turkey was going to improve and that he believed the police had forgotten about him. While there may be some truth to this explanation, I consider the applicant’s own evidence indicates that he was not, at those time, of adverse interest to the Turkish authorities and nor did he have a subjective fear of being persecuted.

13. I agree with the delegate that the applicant was not adverse interest to the Turkish authorities at the time he first left Turkey and travelled to Australia. As noted above, I accept as plausible the applicant’s claims that he was detained by the Turkish authorities in 2000 and 2004 when he was involved in various left wing student demonstrations supporting pro-Kurdish causes and I accept that, because of his presence at various gatherings and meetings where the DHKP-C supporters were also present, he may have accused of supporting the DHKP-C and questioned about his knowledge of DHKP-C supporters by the authorities. I have also given the applicant the benefit of the doubt and accepted that he was detained in the lead up to the commemoration of the Sivas massacre in 2008 and that he may have been asked about whether he knew various persons suspected of involvement in the DHKP-C.  However, I am not persuaded that, at the time the applicant left Turkey in 2009, over seven months after he was last detained by the Turkish authorities he was afraid of being persecuted. I am reinforced in this view by the fact that, since he has arrived in Australia, the applicant has returned to Turkey twice: first in 2010 and then again 2012. I find that his travel back to Turkey indicates that he did not, at that time, fear being harmed or mistreated by the Turkish authorities.  

14. The applicant has claimed that the situation changed after he went to the Turkish embassy to register to vote in the 2014 Turkish elections. He claimed that he had an exchange with an official at this embassy which left him feeling like he was under suspicion but his evidence about this exchange was extremely vague and unpersuasive.  He has claimed that his father’s house was raided in July 2014 and he has suggested that this is because he is suspected of involvement in the DHKP-C. However, given the applicant’s very limited association with DHKP-C supporters in the past and having regard to the fact that, every time he was detained by the Turkish authorities, he was released after a short period, I am not persuaded that, at the time the applicant left Turkey, the Turkish authorities suspected him of involvement in DHKP-C and nor do I accept that he has plausibly explained why the Turkish authorities would now suspect him of involvement in the DHKP-C. I do not accept that it is plausible that, because the applicant went to the Turkish embassy to register vote in 2014 elections that this would arouse the suspicions of the Turkish authorities.

15. Before the Tribunal, the applicant has presented evidence that was not before the delegate. Most of this material concerns the applicant’s involvement in political activity in Australia and his involvement with [Organisation 1] and the Alevi Association. On the evidence before me, I accept that the applicant has been regularly involved (around once a month) with [Organisation 1] in [Suburb 1] since around 2013 or 2014 and that he has attended various protests and demonstrations in Australia including: protests against attacks upon the HDP by the Turkish authorities, condemning the attacks upon protestors at Ankara and May Day rallies, a 2015 conference involving a HDP member of parliament held in [City 1], as well as other protest activities in Australia that concern social justice but which are not related to Kurdish rights or the Turkish authorities. While I have some concerns that the photographic evidence of the applicant’s activities in Australia began as [his] visa was approaching its expiry date and suggests that it has intensified over the course of his protection visa application, on the evidence before me, I am prepared to accept that he has engaged in this activity because it reflects his genuine political beliefs and not for the sole purpose of strengthening his claim to be a refugee. Accordingly, I find s 91R(3) of the Act does not apply to this case.

1. During the hearing the applicant expressed concerns that officials from the Turkish embassy may have photographed him at protests and demonstrations in Australia. At the hearing I put to the applicant that I didn’t have any country information that supported his claim that the Turkish authorities would monitor his activity in Australia in this way and the suggestion he would be at risk of harm for this reason seemed very speculative, particularly given the fact that the applicant is not a high profile political leader or activist. During the hearing the applicant’s representative submitted that Kurdish organisations overseas are monitored and people can be persecuted. However, after the hearing the tribunal looked for but was unable to find information that indicates that the Turkish authorities would interrogate returnees who were involved with [Organisation 1] and attended pro-Kurdish events, including events where some of the signage appears supportive of the PKK.  Nonetheless, I do note that in [2010], a report on [an agency] raid on the headquarters of [City 1][Organisation 1] in [Suburb 1] stated that the [agency] had been investigating links between the diaspora community organisations and the [PKK].

   [Details deleted].[16]

   [16] [Details deleted].

2. Although I consider it is speculative to suggest the applicant is now of adverse interest to the Turkish authorities because of his political activities in Australia and his involvement with [Organisation 1] in [Suburb 1], I have considered whether the applicant’s ethnicity in combination with his political opinion will expose him to a risk of harm if he returns to Turkey. In considering the risks that the applicant will face as a person of Kurdish ethnicity and Alevi faith who is active in support of the HDP and pro-Kurdish causes and attends public demonstrations criticising the Turkish authorities, I have had regard to fact that the political environment in Turkey is now markedly different from when the delegate made her decision in December 2014. The resumption, in July 2015, of military conflict between the PKK militants and Turkish military in July 2015 in the predominantly Kurdish areas of Turkey’s southeast has had immediate impacts on Kurdish civilians in the form of government-imposed curfews, destruction of buildings and services, and civilian deaths. [17] The violent conflict between the PKK and the Turkish authorities in South-Eastern Turkey is reportedly at its most intense level in two decades and President Erdogan has ruled out reviving peace talks with the PKK.[18]

   [17] ‘Turkey and the Kurds: Widening the conflict’ 2016, Economist, 23 January 2016 <CX6A26A6E728>

   [18] Darren Butler, ‘Turkey counts cost of conflict as the Kurdish militant battle rages on’, Reuters, May 31 2016; Turkey's Erdogan says no room for dialogue in Kurdish conflict, Reuters, 4 April 2016

3. More broadly, since the resumption of conflict between the PKK and the Turkish Government , there has been an overall deterioration in official attitudes towards Kurdish citizens and those sympathetic to their plight, in the broader context of increasing intolerance of views deemed critical of, or in opposition to, those of the Turkish government. For example, in October 2015, Foreign Affairs reported:

   …negotiations between the government and the PKK definitively collapsed, leading to renewed fighting in southeastern Turkey. Military operations are once again taking a heavy toll on civilians, marked by high-profile acts of brutality.[19] Until recently, prosecutors could charge those using Kurdish in political campaigns for supporting terrorism; today they level the same charge on other, equally specious grounds. In advance of the country’s November 1 elections, the AKP even went as far as to blame the predominantly Kurdish People’s Democracy Party (HDP) for a suicide attack on a peace rally that the HDP itself had helped organize in Ankara.[20]

   [19] See Verghese J 2015, ‘Turkey: Image of Kurdish man's body being dragged through streets by Turkish soldiers goes viral’, International Business Times, 5 October 2015 <CXBD6A0DE17632>

   [20] Danforth N 2015, ‘Do Kurds Exist? Turkey Grapples With Multiculturalism’, Foreign Affairs, 26 October 2015 <CXBD6A0DE17633>

4. Al Jazeera reports that the Erdogan-AKP administration ‘often blames the HDP for its close links with the [PKK];’[21] in early January 2016 the Middle East Eye reported that Turkish anti-terror police had raided the HDP’s district offices in Istanbul as part of an investigation into the PKK’s youth wing, the Patriotic Revolutionary Youth Movement (YDG-H).[22] In October 2015, pro-government protestors attacked HDP offices across Turkey, including a violent attack of the party’s headquarters in Ankara.[23] In the same month, a double suicide bombing at an opposition rally in Ankara, which killed over 100 people, appeared to include HDP members among its targets.[24]

   [21] Uras U 2015, ‘HDP: Party of Turkey's oppressed?", Al Jazeera, 29 October 2015 <CXBD6A0DE17621>

   [22] ‘Turkish police raid HDP offices in Istanbul’ 2016, Middle East Eye, 8 January 2016 <CX6A26A6E704>

   [23] ‘Turkey’s pro-Kurdish HDP party offices attacked in Ankara’ 2015, BBC News, 8 September 2015<CXBD6A0DE17622>

   [24] Malsin J 2015, ‘This Man Has the Toughest Job in Turkey’, Time, 11 November 2015 <CXBD6A0DE17618>

5. In January 2016 the BBC reported that the Turkish military had intensified its campaign against the PKK since mid-December 2015, ‘focusing on those towns and cities in predominantly Kurdish south-eastern Turkey that declared ‘self-determination’’ such as Silopi, Cizre, Nusaybin and Sirnak where a Kurdish umbrella group including the PKK declared ‘Peoples Assemblies’ in August 2015.[25] On 30 December 2015 the New York Times reported that Turkish military operations in the southeast had ‘turned dozens of urban districts into bloody battlefields, displacing hundreds of thousands of civilians’ and that Turkish forces were keeping several cities ‘under tight lockdown,’ cutting off food and electricity for many residents.[26] Vice News also reported that military operations in the southeast had resulted in hundreds of arrests, including a number of Kurdish politicians and activists.[27]

   [25] Hosken A 2016, ‘PKK defiant over long war with Turkey’, BBC News, 26 January 2016 <CX6A26A6E729>

   [26] Yeginsu C 2015, ‘Turkey’s Campaign Against Kurdish Militants Takes Toll on Civilians’, New York Times, 30 December  2015  <CXBD6A0DE17637>

   [27] Beck J 2016, ‘Turkey's Most Wanted VICE News Meets PKK Leader Cemil Bayik’, Vice News, 23 January 2016 <CX6A26A6E726>

6. On 21 January 2016, Amnesty International published a report condemning the Turkish government’s indefinite curfews in Kurdish neighbourhoods in eastern and south-eastern Turkey. Amnesty cites figures obtained from the Human Rights Foundation of Turkey, which record curfews being imposed on ‘at least 58 occasions in at least 19 different towns and districts across seven provinces of east and south-east Turkey’ since August 2015.[28] The report states that the curfews and other measures have enforced ‘ …disproportionate restrictions on movement…and other arbitrary measures which have left residents without access to emergency health care, food, water and electricity for extended periods…[and] increasingly resemble collective punishment…’.[29]

   [28] Amnesty International 2016, Turkey: End abusive operations under indefinite curfews, 21 January 2016 <CIS38A8012140>

   [29] Amnesty International 2016, Turkey: End abusive operations under indefinite curfews, 21 January 2016 <CIS38A8012140>

7. Since the breakdown of the ceasefire between the PKK and Turkish security forces, pro-Kurdish politicians and parties have come under increasing surveillance and experienced harassment from Turkish authorities. After voicing comments sympathetic to Kurdish demands for self-rule in the southeast, the co-chairs of the HDP have come under investigation by the Ankara Public Prosecutor’s Office.[30] Critics have accused the Turkish government of ‘punishing’ areas that voted overwhelmingly in favour of the HDP in the June 2015 general elections: Cizre, where some of the worst military-PKK fighting has occurred, recorded an 85 per cent vote for the HDP.[31] Amnesty International reports that those speaking out against the Turkish military operation in the southeast ‘have been subjected to threats, criminal investigation and other forms of harassment’.[32]

   [30] Yeginsu C 2015, ‘Turkey’s Campaign Against Kurdish Militants Takes Toll on Civilians’, New York Times, 30 December 2015 <CXBD6A0DE17637>; ‘Turkey’s HDP plans to hold ‘autonomy’ rallies amid tension with gov’t over self-rule policy’ 2016, Hurriyet Daily News, 4 January  2016 <CX6A26A6E705>; ‘HDP co-chair Figen Yüksekdağ being investigated for ‘terror propaganda’’ 2015, Andalou Agency, 31 July 2015, Daily Sabah <CXBD6A0DE17623>

   [31] Girit S 2015, ‘Turkey Kurds: Grim reports from Cizre’, BBC News, 10 September 2015 <CXBD6A0DE17644>

   [32] Amnesty International 2016, Turkey: End abusive operations under indefinite curfews, 21 January 2016 <CIS38A8012140>.

8. In September 2015 several international, regional and Turkish human rights organisations issued a joint statement condemning the military operations launched in the southeast, observed that ‘under the pretext of countering terrorism’ there have been ‘grave violations of the right to life, severe limitations to the right to freedom of assembly and expression, crackdown on independent media and repressive actions targeting human rights organisations and activists, with court orders blocking websites and Twitter accounts issued on charges of ‘promoting terrorist propaganda.’[33] In the same month Reuters reported that three foreign journalists had been detained while reporting in Turkey’s southeast and charged with links to a terrorist organisation.[34] The FIDH additionally reported that pro-government protestors had attacked the offices of Turkish newspapers Hurriyet and the Daily Sabah and HDP headquarters and offices, while police had raided the offices of news magazine Nokta ‘on accusation that it had mocked President Erdogan.’[35]

   [33] International Federation for Human Rights (FIDH) 2015, Turkey: Rights groups strongly condemn escalating violence and human rights violations in counter-terrorism operations, , 22 September 2015 <CXBD6A0DE17642>

   [34] Cakan S 2015, ‘Turkish jets target PKK, state media says 20 militants killed’, Reuters, 2 September 2015 <CXBD6A0DE17646>

   [35] International Federation for Human Rights (FIDH) 2015, Turkey: Rights groups strongly condemn escalating violence and human rights violations in counter-terrorism operations, 22 September  2015 <CXBD6A0DE17642>

9. The repression of those who publically criticise the Turkish government has intensified following the attempted coup on 15 July 2016. In August 2016 Amnesty International reported that post-coup purge comes at a time when Turkey's attack on freedoms of expression, association and assembly was already gathering momentum. [36] According to Amnesty International, the right to freedom of peaceful assembly was already restricted and excessive force was regularly used by police to disperse protests. In this context, Amnesty International predicts:

   In the febrile post-coup atmosphere, it is likely that the situation for dissenters will further deteriorate. A blurring of the distinction between culpability for the coup and being a Gülen sympathizer has already been visible. The authorities' definition of "traitor" could be broadened further still to encompass secular, leftist or Kurdish critics.[37]

   [36] Amnesty International, Turkey's many shades of fear, 15 August 2016, available at: [accessed 4 November 2016] 

   [37] Amnesty International, Turkey's many shades of fear, 15 August 2016, available at: [accessed 4 November 2016] 

10. On 21 October 2016 the Country of Origin Information Services Section reported that in September the purge of civil servants, judges, lecturers, military personnel and police moved beyond those suspected of being Gulen sympathisers to include alleged followers of the Kurdistan Worker’s Party (PKK). Over twenty mayors were replaced and 11, 825 teachers suspended, after being accused of supporting the PKK. [38]  Under the state of emergency decree, the government has also shut down anti-government and pro-Kurdish television channels and newspapers, claiming that these organisations are mouthpieces for terrorist activity.[39]

    [38] Country of Origin Information Services Section (COISS), Situational Update: Turkey post-coup: politics and security, Effective from 21 October 2016.

    [39] Country of Origin Information Services Section (COISS), Situational Update: Turkey post-coup: politics and security, Effective from 21 October 2016.

11. DFAT has advised that the renewed conflict with the PKK in 2015 has led to arrests of non-violent protesters and activists on terrorism charges, with some human rights groups claiming ill-treatment of detainees. With respect to the treatment of protesters, in September 2016 DFAT reported that:

    Overall, DFAT assesses that following Gezi Park, freedom of assembly has decreased markedly in Turkey. Where protestors, either organisers or ordinary activists, are critical of the Government, they face a moderate risk of harassment and/or excessive use of force perpetrated by the authorities and/or disproportionate judicial proceedings. [40]

    [40] DFAT Country Information Report - Turkey, 5 September 2016.

12. I accept that, if the applicant returns to Turkey, he will involve himself in protests supporting pro-Kurdish causes as he has done in Australia and as he did in Turkey in the past.  In recent decades the Turkish Government has forced many Kurdish parties to disband, declaring them illegal on the accusation that they have provided support for the PKK.  In September 2016  DFAT reported that ‘[t]here are five areas of significant historical official 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’. DFAT acknowledges that the ‘state’s efforts to enforce these prohibitions and suppress dissent have, at times, included the widespread use of extra-judicial killings, torture and enforced disappearances’.

13. According to DFAT, discrimination against Kurds on the basis of their ethnicity as opposed to their political opinions (actual or imputed) is often difficult to distinguish. As noted above, DFAT reports that between 2009 and 2011, the state detained nearly 8,000 mostly Kurdish people on the basis of their links to the PKK and the Union of Communities of Kurdistan, the ‘urban wing’ of the PKK. Reports have also been located of students and journalists being arrested and detained on the basis of their suspected links to the DHKP-C.[41] In September 2016 DFAT reported:

    The renewed conflict with the PKK in 2015 has led to arrests of non-violent protestors and activists on terrorism charges, with some human rights groups claiming ill-treatment of detainees. Human Rights Watch has reported that investigations into officials of Kurdish political parties and activists, including mayors, have increased. . ..

    Overall, DFAT assesses that the situation for Kurds has not improved since the 2014 DFAT Country Information Report. While Kurds’ ability to express their Kurdish identity, use the Kurdish language, and achieve political representation have been maintained, they remain at risk of harassment through the legal system and of discrimination in public sector employment. In addition, the ongoing violence in the southeast disproportionately affects Kurds, given they are the majority in the region, and has resulted in a significant loss of civilian life. The enforcement of temporary security zones and curfews by the military has inhibited access to health services, education, work and other aspects of everyday life. Overall, DFAT assesses that these conditions represent a moderate level of official discrimination against Kurds.

    Societal discrimination against Kurds is partly influenced by the changing nature of Government-PKK peace talks. Given the resumption of hostilities, societal attitudes towards Kurds are currently less positive. Some non-Kurds believer that all Kurds are associated with the PKK, despite the fact that many Kurds are supporters of the current Government and want the conflict to end. On this basis, DFAT assesses that there is, at present, a moderate level of societal discrimination against Kurds. However, this varies across Turkey depending on proximity to the conflict or the number of Kurds present in a particular location.[42]

    [41] United States Department of State, 2015 Country Reports on Human Rights Practices - Turkey, 13 April 2016, available at: DFAT Country Information Report - Turkey, 5 September 2016, paragraphs 4.13,  4.17, 4.20.

14. The Immigration and Refugee Board (IRB) of Canada has reported that there were hundreds of attacks on HDP offices at the time of the elections in 2015 and that these attacks included bombings, assaults, mob attacks, vandalism, a lynching attempt, and arson.  In the majority of cases there were no records of anyone being indicted for the violence.  The IRB reported that between 24 July and 9 October 2015, 2,308 HDP members had been taken into custody and 542 had been arrested, that between the June and November 2015 elections approximately 500 HDP members and officials, including 20 mayors, had been detained on terrorism charges and that, according to Human Rights Watch, the Turkish government used overly broad terrorism laws to ‘silence dissent, including by detaining and prosecuting peaceful Kurdish activists as though they were members of the outlawed PKK’.[43]

    [43] Immigration and Refugee Board of Canada, ‘Turkey: Situation and treatment of members of Kurdish political parties that have succeeded the People's Democracy Party (Halkin Demokrasi Partisi, HADEP), including the Peace and Democracy Party (Baris ve Demokrasi Partisi, BDP), and the Peoples' Democratic Party (Halklarin Demokratik Partisi, HDP); whether HADEP and other older acronyms are still in use (2011-2016)’, 14 June 2016, TUR105537.E.

15. The US State Department has reported that the Turkish Government regards many demonstrations as security threats to the state and it deploys large numbers of riot police to control crowds often using excessive force resulting in injuries, detentions, arrests and even deaths. [44]  It referred to the fact that, according to the Human Rights Association, between 21 July and 30 August 2015 alone the police intervened in 145 meetings and demonstrations and 132 people (including 12 children) were seriously wounded during this time in demonstrations relating to the increased violence between the security forces and the PKK. [45]  It reported that, according to the Human Rights Foundation, in November the security forces detained 3,038 people and arrested at least 201 during protests and demonstrations that resulted in 203 injuries.[46]

    [44] US State Department, Country Reports on Human Rights Practices for 2015 in relation to Turkey, Section 2.b, Freedom of Assembly.

    [45] US State Department, Country Reports on Human Rights Practices for 2015 in relation to Turkey, Section 2.b, Freedom of Assembly.

    [46] US State Department, Country Reports on Human Rights Practices for 2015 in relation to Turkey, Section 2.b, Freedom of Assembly.

16. I have found that the applicant is of Kurdish ethnicity and the Alevi faith that he has previously been detained and mistreated by the Turkish authorities because his involvement in political activity led to him attracting the adverse attention of the authorities. Since arriving in Australia he has become involved, on a regular basis, with [Organisation 1] in Australia and he has been involved supporting the Kurdish autonomy in Turkey and he had attended various public demonstrations in Australia demonstrating in support of Kurdish independence and criticising the actions of the Turkish government in south-eastern Turkey. While I initially was concerned that the applicant’s involved in supporting Kurdish causes and politicians in Australia was motivated, at least in part, by a desire to strengthen his claims to be refugee, I am willing to give the applicant the benefit of the doubt and accept that his conduct reflects his genuine political beliefs and that he has engaged in political activities in Australia because he genuinely wishes to support the Kurdish rights and Kurdish autonomy. I accept the applicant's evidence that he is a Kurd, and that he has been arrested and mistreated by the police for reasons of his race (Kurdish ethnicity) and his political opinion (actual political support for pro-Kurdish causes and imputed support for the DHKP-C).

1. I am satisfied that if he returned to Turkey he would continue to support pro-Kurdish parties and causes in Turkey and that, but for the fear of harm, he would continue to express his views publically by attending protests and demonstrations. In light of the prevailing political conditions in Turkey and the increasing crackdown on dissenting voices and having regard to various independent sources which indicate that the risks facing Kurdish activists who engage in public demonstrations against the Turkish authorities and support the HDP have increased following the resumption of the armed conflict between the Turkish Government and the PKK, I consider it is appropriate to take a cautious approach to assessing the risks that the applicant as a politically active Kurdish man of Alevi faith will face if he returns to Turkey.  Having regard to the independent evidence I consider that, if the applicant returns to Turkey and continues to actively support his involvement in Kurdish political parties and in Kurdish and Alevi political and cultural activities and attend public protests, as I have found that he will, there is a real chance that he will again be detained or that he will suffer physical injuries while taking part in political protests. I accept that the applicant, as a Kurdish man of Alevi faith, will continue being politically active and attend protests, meetings and gathering in support of the pro-Kurdish causes and the HDP in Turkey and thereby stands a real chance of being targeted for future harm for reasons of his ethnicity and his political opinion.

2. I find that the applicant fears persecution for the reasons of race (his Kurdish ethnicity), and political opinion (his real political beliefs and affiliation with the HDP and pro-Kurdish causes and his imputed political beliefs because of his Kurdish and Alevi identity and involvement in peaceful protest against the State). I find that the essential and significant reasons for the persecution is his race and his political opinion, as required by s.91R(1)(a) of the Act. I am satisfied that the persecution the applicant fears involves 'serious harm' as required by paragraph 91R(1)(b) of the Act in that it involves a threat to his life or liberty. I find that the persecution that he fears involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reasons, namely his race and his political opinion.

3. Since the Turkish Government is responsible for the persecution which the applicant fears, I consider that there is no part of Turkey to which he could reasonably be expected to relocate where he would be safe from the persecution which he fears.  The most recent reports about the impact of the resumption of hostilities between the PKK and the government of Turkey on Kurdish activists in the south-eastern parts of Turkey and, more broadly, the silencing of dissenting voices in the wake of the July coup indicate that the situation for political activists of Kurdish ethnicity is becoming increasingly fraught. While the applicant is not from an area that is directly affected by the ongoing violence in the southeast, the country information indicates that the arrests of peaceful Kurdish activists occur throughout the country and the use of excessive force against protesters has occurred in cities such as Istanbul as well as in the southeast.[47]

   [47] Canada: Immigration and Refugee Board of Canada, Turkey: Situation and treatment of members of Kurdish political parties that have succeeded the People's Democracy Party (Halkin Demokrasi Partisi, HADEP), including the Peace and Democracy Party (Baris ve Demokrasi Partisi, BDP), and the Peoples' Democractic Party (Halklarin Demokratik Partisi, HDP); whether HADEP and other older acronyms are still in use (2011-2016), 14 June 2016, TUR105537.E, available at: [accessed 3 November 2016]  (referring to the use of tear gas against HDP members who stage a protest in the Bakirkoy area of Istanbul).

4. I have considered whether the applicant can obtain protection from the State but, as the agents of persecution are the Turkish authorities themselves, I find that the applicant would be unable to access state protection to avoid the harm he fears.

   CONCLUSION

5. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

6. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Frances Simmons
   Member