1507487 (Refugee)
[2018] AATA 2829
•1 June 2018
1507487 (Refugee) [2018] AATA 2829 (1 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1507487
COUNTRY OF REFERENCE: Turkey
MEMBER:James Silva
DATE:1 June 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 01 June 2018 at 6:09pm
CATCHWORDS
Refugee – Protection visa – Turkey – Race – Kurd – Religion – Alevi – Political opinion – Pro-Kurdish parties – Peace and Democracy Party (BDP) – Terrorism conviction in absentia – Family’s loss of Kurdish language skills – Family opposition to mixed marriage – Threats of killing – Pressure to become a police informant – Mental health issues
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 438, 499
Migration Regulations 1994, Schedule 2, r 1.12
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
The applicants are a woman in her [age range], her husband and their young son. All three applicants were born in Turkey, and claim to be Turkish citizens.
The applicants arrived in Australia [in] October 2013. The first-named applicant (‘the applicant’, ‘the applicant wife’) was the holder of a Student visa, and the second- and third-named applicants (‘the applicant husband’, ‘the applicant child’) were holders of Student dependent visas.
On 4 March 2014, the applicant lodged an application for a Protection visa, with the secondary applicants included as members of her family unit who do not have their own claims for protection. She attended an interview with the delegate of the Minister for Immigration on 12 February 2015.
On 11 May 2015, the delegate refused the applications pursuant to s.65 of the Migration Act. This is an application for review of that decision.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. The relevant law is in Attachment A.
CLAIMS AND EVIDENCE
Claims
The applicant claims to be an Alevi Kurd who has experienced persistent discrimination and mistreatment on religious and racial grounds. She claims that the applicant husband is a Sunni Kurd, and his extremist relatives have threatened her and the applicant child. The applicant claims to have been active in successive pro-Kurdish parties, in a range of political and cultural activities. This led to official harassment, and in mid-2013, Turkish police tried to recruit her as an informant on the local pro-Kurdish party. She refused to comply, and the resultant threats led the applicants to flee Turkey.
The applicant claims that since her arrival in Australia, a court has convicted her in absentia on terrorism charges arising out of an event she attended in Diyarbakir in 2010. She has been sentenced to five years imprisonment, and there is now an arrest warrant for her.
The applicant has presented evidence of mental health problems in Australia, including a diagnosis of [two conditions]. A psychiatrist opines that the applicant’s return to Turkey could exacerbate her symptoms, resulting in further harm.
The applicant husband claims to be a Sunni Kurd. At hearing, he claimed that Sunni extremist relatives have beaten him up because they oppose his marriage to an Alevi Kurd. However, he has made no protection claims of his own, instead relying on his membership of the same family unit as the applicant.
Background
The applicants were born in Gaziantep, south-eastern Turkey. The parents married in October 2008, and their son was born in [year].
The applicant wife
The applicant is [an age] year old woman. She claims to be an Alevi Kurd (ethnicity and religion), and a speaker of only Turkish. The applicant told the Tribunal that she lived in [Town 1], which she described as a town of perhaps 1,000 inhabitants. Country information discussed at hearing indicates that [Town 1] is part of Gaziantep, which is one of Turkey’s largest cities. The applicant moved to Sehitkamil, and district in Gaziantep city, after marrying in October 2008.
She attended [school] [between specified years]. From 2008 until February 2009, she was enrolled in a [course] at a vocational school attached to [her] University. The applicant claimed that from 2005 to 2008, she was mainly involved in political activities. She discontinued her [course] in early 2009; she attributed this to her political activism, and the ‘religious and ethnic persecution’ that she was experiencing.
The applicant claims that, from 2009 to 2013, she helped her mother with household chores, and had no paid employment. [Then] she worked as a shop assistant in [a business].
The applicant’s parents were born in [Town 1], Gaziantep. Her father is a retired labourer. She has a [family member] who worked as a labourer, and more recently in a [business]. [Another family member] is married, and performs home duties. All family members continue to live in [Town 1].
The applicant husband and the applicant child
The applicant husband is [an age] year old man. His original application form and the applicant’s first statement of claims indicate that he is an Alevi Kurd, and a speaker of only Turkish. He has since claimed to be a Sunni Kurd. He attended school [between specified years], and indicates that he qualified as [an occupation 1].
The applicant husband completed his military service [in specified years]. From July 2003 to October 2013, he worked as [an occupation 1] in one firm, [with specified duties]. His parents and [siblings], all born in [Town 1], continue to live there.
The applicant child is [an age] year old boy, also born in [Town 1].
The applicant parents have a second [child], who was born in Australia in [year]. He is not included in this application.
Travel documents and history
The applicant wife holds a Turkish passport issued in August 2013. She wrote in her application, and confirmed at the hearing, that she had never held any previous travel document, or undertaken prior travel outside Turkey. The applicants confirmed at hearing that they had no difficulty obtaining their Turkish passports.
The applicants obtained Australian student visas on 3 October 2013, and arrived in Australia [in] October 2013. As noted above, the applicant wife enrolled to study, and the other applicants accompanied her as her dependents.
Evidence
The evidence before the Tribunal includes the following relevant material:
§The applicants’ protection visa application forms lodged on 4 March 2014. Attached to this is (first-named) applicant’s statement of claims, set out in a four-page typewritten document dated 28 February 2014.
§Identity documents for the applicants, namely photocopies with English translations where applicable, of their national identity cards, and the parents’ marriage certificate.
§Documents provided to the Department (contained on the Department file):
-Letters of support from [Kurdish Group 1], dated [in] October 2014 – on plain paper, with a wet stamp - separately describing the applicant wife and the applicant husband (in identical wording) as members of the [Group] and a caring, helpful person.
-Two photographs of the applicant husband with what appears to be a Kurdish political banner (showing image of political leader), taken in what appears to be the mall of [a large Australian city].
§Letters relating to the applicant’s mental health and wellbeing:
-A letter dated 10 September 2014 from [a health service] stated that the applicant presented at the clinic with a friend; that she has poor English; that she and her family need financial assistance; and that the applicant has presented with [specified conditions and symptoms] and other problems. The letter mentions her husband, but suggested that the applicant is struggling to look after her son. An undated copy of this letter is addressed to the [Welfare Agency 1] (presumably in order to support a request for financial or other practical assistance).
-Letter from [Welfare Agency 2], dated 22 September 2014, offering voluntary counselling services to the applicant, but noting that her immediate priority was financial issues, as well as concern about the family’s migration status and ‘visa outcome’. A ‘to whom it may concern’ letter dated 14 January 2015 confirms these comments.
-A note dated [in] November 2014 from [Hospital 1] Emergency Department states that the applicant presented at the hospital with abdominal pains, and was later discharged,
§The applicants attended a protection visa interview (‘Department interview’) on 12 February 2015. The applicant gave most of the evidence, but the applicant husband also confirmed aspects of her claims. A recording of the interview is on the Department file.
§The protection visa decision record (‘delegate’s decision record’) of 11 May 2015.
§The application for review has attached to it a copy of the delegate’s decision record.
§The Tribunal received a pre-hearing submission dated 2 March 2017. Attached to the submission were copies of two documents, in Turkish with English translations:
-Purported court decision, issued by [Public Agency 1] on [a date in] June 2015. It found the applicant guilty of having attending an illegal BDP demonstration in Diyarkabkir on [a date in] October 2010, noting that she failed to attend the court, and has been sentenced to five years imprisonment.
-An associated ‘apprehension order’, (arrest warrant) arising from her conviction and sentencing [in] June 2015, to five years imprisonment. This document identifies the date of the offence as [a date in] August 2010.
§Further letters of support from medical and counselling support persons:
-Letter of [February] 2017 from [Ms A], ‘to support the granting of protection to [the applicants]’.
-Letter dated [in] March 2017 from [Dr A], describing the applicant’s ‘generalised [condition] and underlying [condition]’.
§A submission dated 30 March 2017, with further support documents: -
-A handwritten letter from the applicant’s parents, in Turkish with translation, describing a police raid on the family home in 2015.
-A photocopy of a BDP membership card for the applicant, issued [in] March 2009.
§Photographs of the applicants at various functions in [Australia], including Kurdish cultural events and public demonstrations.
§A submission dated 7 April 2017 which addresses above all the applicant’s mental health (as well as some issues that arose at the hearing).
The Tribunal received a large volume of materials relating to the applicant’s mental and physical health, discussed in detail later in this decision.
The applicant parents gave evidence at a hearing held on 10 and 31 March 2017. The hearing was conducted via video link between the Tribunal’s offices in Sydney and [another city], with the assistance of an interpreter in the Turkish and English languages. The applicant was represented by [Representative A] of [agency name], who attended the first hearing session. His colleagues [named] were present during the second hearing session. [Ms A] ([Welfare Agency 2]) attending as a witness and support person, and the applicant had other support persons present. The Tribunal offered the applicants the opportunity to speak in private, if they so wished. They were present together for most of the hearing, although the Tribunal discussed some aspects of the applicant’s claims with her separately, and later with the husband, in order to test her evidence.
The applicants also asked the Tribunal to telephone the applicant’s parents in Gaziantep, to take oral evidence from them confirming the service on them of a court decision and apprehension order (arrest warrant). The Tribunal explained its caution in telephone witnesses in the country of persecution, particularly in cases where State persecution and serious criminal offences form part of the application, and where direct communications might put an applicant or the witnesses at risk. The applicants confirmed that the proposed witnesses intended to speak to the written statement that was already before the Tribunal. The Tribunal undertook to note, and give appropriate weight, to the parents’ willingness to confirm their letter of support and answer the Tribunal’s questions. In the submission of 8 March 2018, the representative raised concerns about the Tribunal’s failure to take oral evidence from the parents, and stated that, unless it did so, the Tribunal should accept the court documents as genuine. (The Tribunal considers this in further detail below.)
The Department issued a certificate under s.438 of the Act, certifying that the disclosure of certain information was subject to paragraph 438(1)(b), which relates to information given to the Minister or an officer of the Department in confidence. The relevant document was not on the physical file. According to the decision record: ‘An allegation was received by the Department in which it was claimed that the applicant and her husband were working whilst receiving [Welfare Agency 1] payments and that they were claiming to be Kurdish Alevi but were not.’
The Tribunal alerted the applicants to the existence of the certificate, and its view that the certificate was valid because the Department had received the information from a third party in confidence. As noted in the decision record, the delegate put this information to the applicant parents at interview, and they denied the allegations. The Tribunal has no further details. The Tribunal told the applicants at hearing that it would have no regard to this information, as it could not assess the informant’s motivations or test the reliability of the allegation. The applicants and [Representative A] noted this without comment.
Country of Reference
The applicants claim to be nationals of Turkey. They have submitted copies of their Turkish passports; they speak Turkish; and they are familiar with that country. The Tribunal finds that they are all nationals of Turkey. Turkey is therefore the country of reference for the purpose of assessing the first-named applicant’s protection claims (and any implied claims on the part of the other applicants), and the receiving country when assessing claims against the complementary protection grounds.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of claims: credibility
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal had particular regard to the AAT’s Guidelines on Vulnerable Persons, in light of the evidence about the applicant’s mental health (see below).
The Tribunal also takes into account the circumstances of the hearing itself. The hearing was conducted via video link, with the applicant parents both present, supported by legal and social welfare persons. Their youngest child (not an applicant in this case) was taken care of outside the hearing room. In one post-hearing submission, the applicants’ representative noted that she had been distracted by the baby’s crying, during her evidence on one matter (namely, her knowledge of the political parties’ location and activities in her home town). The Tribunal notes also that the first-named applicant was upset at various times during the hearing. The Tribunal made allowance for these circumstances, and is satisfied that, at hearing and in subsequent submissions, the applicants had ample opportunity to present their claims and evidence.
The Tribunal found much of the applicant’s claims and evidence problematic. They were often vague, unsubstantiated and lacking in context, leading to the strong impression that the applicant (and the applicant husband) was sometimes not recalling personal experiences at all. The Tribunal appreciates the need for caution, however, given the submissions before it relating to the applicant’s mental health. The Tribunal’s consideration of this medical and social welfare evidence follows, as does its full assessment of her protection claims.
The applicant’s mental health
The applicants presented a range of material relating to the first-named applicant’s mental and physical health. The Tribunal has examined these materials carefully, as they are potentially relevant to: (a) her capacity to give evidence, and the Tribunal’s subsequent evaluation of that material; (b) whether the contents of any conversations with medical experts or social welfare staff lend support to her protection claims, for instance, as evidence as to the veracity of past events; and/or (c) the applicant’s prospects on her return to Turkey.
The Tribunal’s summary of the key points to emerge from the material concerning the applicant’s medical and social welfare issues, which potentially affect this assessment, follows.
§ On [a date in] September 2014 (hence, about six months after the applicants lodged their protection visa applications and almost a year after their arrival in Australia), the applicant husband had the applicant admitted to [Hospital 1], due to her erratic behaviour and [specified symptom]. They told medical staff that this had been an issue of concern for several months, but it culminated on that day with the applicant throwing items around the house and attempting to take her husband’s medications the previous night (she ingested none). It appears that she was admitted to hospital and released the following day.
- As noted in the submission of 7 April 2017, the applicant had attended the [Welfare Agency 1] earlier in the day on [a date in] September 2014, and obtained a referral form. It was that evening that she reportedly [exhibited a specified symptom].
- The applicant parents both gave evidence relating to this episode and period.
§ [Several days later], the applicant again appeared at the hospital with a reported panic attack.
- Clinical notes identify the applicant as a refugee or asylum seeker.
- Overwhelmingly, the notes indicate that the applicant expressed concerns about her and her family’s financial situation in Australia. For instance, a referral from [Hospital 1] dated [that date in] September 2014 states that she presented with an ‘acute stress reaction’. It observes that there were ‘acculturation difficulty’, ‘other problems related to housing and economic circumstances’, and ‘unemployment, unspecified’.
- The Tribunal found a single reference to the applicant husband mentioning ‘racial abuse’ in Turkey, in a clinical note dated [in] September 2014 which records the applicant husband as giving that as a reason for their travel to Australia. A social worker’s notes [in] September 2014 record the applicant as stating: ‘Family in Turkey unsupportive’.
§ Other medical notes indicate that the applicant presented at hospitals in November 2014, November 2015 and March 2017, variously reporting abdominal pains, nausea and associated symptoms. There is no clear link between these instances and her prior panic attacks.
§ In a second [Welfare Agency 1] referral note dated [in] January 2015, the applicant reported that her son (the applicant child) was behaving strangely, having become distressed and withdrawn after witnessing her [specified symptom].
§ The Tribunal has before it two letters from [Dr A], a consultant psychiatrist for [Welfare Agency 2][1], dated [in] March 2017 and [April] 2017 (the latter is a more detailed report). She has been seeing the applicant since March 2015, after [Ms A] (a counsellor) referred her on due to her ‘distressed mental state and a recent [specified symptom]’.
[1] [Agency name]
- [Dr A] assessed that the applicant suffers from chronic [a condition] ‘as a consequence of the persecution experienced as a Kurdish woman and a mixed marriage’. She also suffers ‘[a significant condition]’ and [a generalised condition]. ([Dr A] did not give details of how she assessed the claimed cause of the applicant’s mental state.) She notes that the applicant has ‘an underlying vulnerable personality and emotional instability’.
§ According to [Dr A], the applicant ‘described frequent episodes of panic, outbursts of irritability and crying, and was worried about the effects of her mental state on her son’.
- [Dr A] states that the applicant has a very good prognosis ‘should she remain in Australia where she can continue to obtain the counselling and psychiatric care she requires’.
§ She goes on to express concern that ‘without this support and a return to the origins of her trauma she would be at a high risk and in need of care that may not be available’.
§ In the second letter, [Dr A] also expresses concern that the applicant’s return to Turkey could also put the mental health of both children at risk. She states that she is concerned about the degree of psychiatric support that would be available, and in particular the heightened risk that the applicant might be at if she were imprisoned.
§ The Tribunal also received reports from [Ms A], a counsellor/advocate at [Welfare Agency 2] as well as her oral evidence.
- She stated that the applicant was referred in January 2016, after [exhibiting a specified symptom]. [The medical records submitted to the Tribunal show that the applicant was admitted to [Hospital 1] after [specified symptom] on [a date in] September 2014; this appears to refer to a separate incident, in her son’s presence.]
- She has received 39 counselling sessions (as of February 2017). She describes symptoms of ‘elevated [condition] levels, and attributes these to ‘her migration status and extreme fear of being returned to Turkey’. The report is expressly written to ‘support the granting of protection’.
The Tribunal accepts [Dr A’s] and [Ms A’s] opinions, insofar as they are based on their clinical observations and professional expertise. The Tribunal notes that [Dr A] and [Ms A] wrote their letters for the purpose of assisting the applicants obtain permanent residency in Australia. They appear to have accepted, at least implicitly, the applicant’s account of her experiences in Turkey and her prospects on return (including the risks of imprisonment or other mistreatment).
The Tribunal has carefully considered the large volume of material relating to the applicant’s mental health, and associated conduct. In its view, this material supports the following conclusions: -
§ The applicant suffers from [a specified condition] with generalised [condition]. [Dr A] also referred to an ‘[an underlying condition]’, and referred to a ‘panic driven [specified symptom]’.
- The voluminous medical records before the Tribunal indicate that the applicant was admitted to hospital on one occasion, in September 2014, following erratic behaviour and claimed [specified symptoms], and released the following day. [Dr A] and [Ms A] appear to refer to two other incidents, in September 2015 and perhaps early 2016.
- Although [Dr A] and [Ms A] refer to ongoing mental health concerns, the incidents requiring urgent medical attention have mostly been unrelated (such as gastric problems).
§ The cause(s) of the applicant’s mental health problems is/are uncertain. [Dr A] and [Ms A] consider that these are in large part attributable to ‘severe political, racial and religious persecution’, as reported to them by the applicant. The Tribunal notes that these experts have seen the applicant over a period of time and on numerous occasions; and it gives due weight to [Dr A’s] comment that she ‘became distressed when recalling her history’.
- However, the limited available material suggests that [Dr A] and [Ms A] accepted the applicant’s account of her experiences in Turkey at face value, as reported to them, and relayed this information to the Tribunal specifically to support the family’s protection visa applications.
- The reports do not give details of any critical assessment of the applicant’s account of her life in Turkey, or indeed whether the authors have any expertise (such as knowledge of Turkish politics and society) to do so.
- In the Tribunal’s view, the clinical notes that the applicant submitted to the Tribunal raise further questions about the cause(s) of her [condition] symptoms, [and other conditions]. They repeatedly refer to the applicant’s (and her family’s) difficult acculturation, financial problems, housing and unemployment.
- The Tribunal appreciates that an asylum seeker might not feel comfortable talking about their protection claims to unknown persons, in a hospital setting. Furthermore, it also takes into account that the applicant may have focused on her and her family’s immediate needs in Australia (such as some financial and housing security), and that this does not necessarily mean that she does not have mental health issues linked with past events in Turkey or future concerns.
§ In sum, the Tribunal accepts that the applicant has mental health problems, such as [specified conditions and symptoms]. It remains unclear whether any of these are attributable to the applicant’s experiences in Turkey. The Tribunal therefore places little weight on these factors as evidence going to the veracity of the applicant’s protection claims.
No one (that is, the applicants, the representative and their support persons) has raised questions about the capacity of the first-named applicant to give evidence at the hearing. The Tribunal notes that she was upset from time to time. In relation to one point, her representative explained that she misunderstood one of the Tribunal’s questions because she was distracted by her baby crying outside the hearing room. The Tribunal is satisfied that, during the course of the hearing (including with the assistance of the second-named applicant, her representative, her witnesses and her support persons) and in subsequent correspondence, she was able to present her claims and evidence, as was the second-named applicant.
Kurdish ethnicity and Alevi faith
The applicant claims to be a Kurdish person whose religion is Alevi; she described herself in her written application as an ‘unassimilated Alevi Kurd’. These form an integral part of her identity, as well as her claimed profile as a supporter of successive left-wing Kurdish political parties. The delegate, in the decision under review, accepted that she is an Alevi Kurd, having particular regard to her (claimed) involvement in Kurdish political parties, her description of the mistreatment that she experienced in Turkey (on ethnic and religious grounds), and the information she provided at interview about the Alevi faith.
The Tribunal accepts that the applicant has Kurdish ethnicity and is nominally of the Alevi faith, having regard to her consistent claims over time, and her supporting evidence. However, it does so with reservations relevant to its further assessment of her claims.
In relation to the applicant’s Kurdish ethnicity, the Tribunal notes the following: -
§ The applicant told the Tribunal that neither she nor the applicant husband speaks Kurdish. She explained that the Turkish authorities have forced her and her family to lose their identity.
§ The applicant initially said that her parents did not speak Kurdish at home, in order to avoid the applicant and her siblings having problems later in life (such as being victimised at school). She commented that her parents understand Kurdish, and in fact can speak it. The Tribunal notes that the applicant invited the Tribunal to take oral evidence from her parents. It therefore gives her the benefit of the doubt and accepts that they could have spoken or at least have understood some Kurdish had the Tribunal spoken to them through a Kurdish (rather than a Turkish) interpreter.
§ The applicant nonetheless claimed to have participated in various Kurdish events in Turkey, such as celebrating Newroz, and, in the context of her political work, also attending cultural events and calling on local Kurds to encourage them to maintain their culture.
- In relation to both her and her family’s activities, the applicant stressed that she and her family buckled under pressure from the Turkish authorities, denying their culture. Asked whether she had any contemporaneous evidence from Turkey to show her Kurdish identity (such as photographs or other mementos showing her participation in Kurdish events), the applicant replied that she had such evidence in Turkey, but was unable to gather them in the rush to flee the country.
- The Tribunal notes the recent, undated statement from the applicant’s parents, in which they claim that the police seized a photo album and a laptop belonging to the applicant.
- The applicant husband confirmed this. He said that he has not had contact with his family for many years, and is now unable to retrieve any such materials. He added that his family is very religious (observing the Sunni faith), and does not participate in (more liberal-minded) Kurdish cultural events (such as festivals).
§ The Tribunal noted the applicant’s claimed participation in pro-Kurdish political events, and her contacts with local Kurdish people. It wondered how she won the trust of local Kurds, and promote Kurdish culture, if she did not speak or understand the language. She replied that they can also speak Turkish.
§ Asked whether, as she (allegedly) became more politically and culturally aware of her Kurdish identity, the applicant had considered learning the language or more about the culture, she replied briefly that her parents tried to stop her doing so.
§ The applicants presented several photographs showing them at Kurdish events in Australia, annotated to show that they attended: (a) the applicant husband at a demonstration in [an Australian city] following the attacks on the Kurdish-held city of Kobani in June 2015; (b) the applicant at Newroz celebrations at [Kurdish Group 1], in March 2016 and March 2017. These appear to show the community’s acceptance of her as a Kurd. A letter from [Kurdish Group 1] states that the parents are members, implying that they identified themselves as Kurds and that the local community in [their city] accepts them as such.
§ The Tribunal also notes a reference in medical notes from the [Hospital 1], dated [in] September 2014, in which the applicant husband mentioning that the couple had come to Australia because ‘conflict is ongoing between Turkish and Kurdish people’.
In sum, the evidence to support the applicant’s claimed Kurdish ethnicity is fairly weak. Nonetheless, country information indicates that ‘Turkification’ has diluted the linguistic and cultural identity of many Kurds, particularly in urban areas. The Tribunal is sceptical about the applicant’s claim that her parents spoke little or no Kurdish, even at home. However, given the active suppression of Kurdish language and cultural identity across Turkey since 1923[2]; and the fact that Gaziantep is known to hold a significant Turkish speaking urban population[3], it accepts that the applicant and other Kurds there might well have negligible formal or social exposure to the Kurdish language.
[2] The website for the Kurdish Academy of Language describes itself as ‘an Open Global Kurdish Linguistic Network dedicated to Kurdish language research. From its birth in late 1992, KAL has raised issues relating to all aspects of the Kurdish language, in particular the Kurdish Writing systems. KAL is an electronic non-governmental organisation (e-NGO) and has been initiated on independent volunteering bases as a global open network. Members with skills in linguistic, and information technology are sharing their thoughts around Kurdish linguistic issues’, Kurdish Academy of Language, n. d., International Crisis Group 2012, Turkey's Kurdish Impasse: The View from Diyarbakır, Europe Report N°222, 30 November: >
Similarly in relation to her Alevi faith, the applicant demonstrated some knowledge of this at the Department interview, although most of the information is in the public domain and readily accessible. The applicant parents indicated that they are not religious people, and that their stated faiths (as Alevi and, as the applicant husband later claimed, Sunni Muslim) are nominal only.
While the Tribunal accepts the applicant is a nominal Alevi Kurd, it does not accept her further claim to be an ‘unassimilated Alevi Kurd’. On the contrary, the Tribunal finds that she has a very high degree of assimilation into mainstream Turkish society and culture.
Experiences as an Alevi Kurd in Turkey
The applicant made numerous references to the historical oppression of the Kurds (and Alevi Kurds) in Turkey, and persistent official and societal discrimination. She gave as examples that the Turkish State denied the existence of Kurds as a separate people, but issued a ‘vicious assimilation policy’; that people referred to Kurds as ‘mountain Turks’; and that the civil war between the PKK (Kurdish Workers Party) guerrillas and the Turkish security forces made life difficult. There is a wealth of country information to support the applicant’s general points.
In a similar vein, the applicant wrote about the historical oppression of Alevis, referring to amongst other things, successive massacres[4] and instances where local residents have marked Alevis’ homes in order to facilitate future attacks. Her description of attitudes towards Alevis and their treatment contained both historical and general information, and once again, it was difficult to determine what exactly reflected the applicant’s personal and ongoing concerns.
[4] She mentioned the Dersim massacre (1938), Maras massacre (1978), the Corum massacre (1980), the Sivas massacre (1993) and the Gazi District massacre (1995)
This forms critical background information to understand the applicant’s protection claims, including the factors that allegedly motivated her to become politically active, and her current fears. However, these historical attitudes and their present-day consequences – such as the family’s loss of their Kurdish language skills – do not of themselves indicate that the applicant has suffered persecution or significant harm, or is at risk of these if she returns to Turkey. This is particularly so given that her family members, who are presumably also Alevi Kurds, continue to live in Gaziantep and do not appear to have suffered persecution or significant harm.
The applicant presented very broad claims about the past harm she suffered on racial grounds, typified by her statement: ‘Throughout all my life, I was denied my basic human rights in Turkey like all other unassimilated Alevi Kurds were.’ Often, her claims blurred what general problems and her own personal experiences. For instance, she claimed that school staff severely punished Kurdish children who spoke their language at school (something she may have witnessed, but obviously did not involve her directly); the heavy military presence in and around Gaziantep resulted in the security forces harassing, interrogating and abusing people ‘on a continuing basis’; and that she abandoned her university studies ‘due to religious and ethnic oppression’. Official and societal discrimination against Kurds also informed the authorities’ responses to her (claimed) political activities, which the Tribunal discusses further below. Again, general country information cites examples of such mistreatment of Kurds in Turkey, but the Tribunal finds little in the applicant’s actual circumstances in Turkey (such as her commencement of tertiary studies, her employment and her family background) to indicate that she suffered such harm. Overall, it finds these claims to be exaggerated and unreliable.
Although the applicant did not claim to be a practising Alevi in Australia, she presented numerous claims of past harm in Turkey. These include the general claims that the Turkish authorities have refused to recognise the faith in its own right; that people regard Alevis as deviants; that Alevi women are subject to slurs (because Alevis do not require men and women to worship separately, and they allow dance and music); that strict Sunni Muslims refuse to shake hands with Alevis or eat the meat of animals that they have slaughtered; that their houses of worship (cemevi) are not officially recognised or given financial support; that schools require Alevi children to study Sunni texts and practices; and that Alevis must take various measures to hide their religious identity, to avoid discrimination and mistreatment (such as pretending to observe Ramadan). This, the applicant claims, leads to psychological harm. Again, the Tribunal formed the view that the applicant exaggerated the extent to which she identifies as and is identified as an Alevi Kurd, and second, the extent of the adverse consequences of this for her.
In considering these claims, the Tribunal has had regard to country information in the delegate’s decision and which also formed the basis for discussion at hearing. For instance, in its most recent country report on Turkey, the Department of Foreign Affairs and Trade[5] provided the following comments on the general treatment of Kurds, which the Tribunal considers to be a fair and accurate reflection of information from other sources:
[Official discrimination] There 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. 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. Discrimination against Kurds on the basis of their ethnicity as opposed to their political opinions (actual or imputed) is often difficult to distinguish.
Limitations on the expression of Kurdish identity are now minimal. In the past it has been illegal to use the Kurdish language or to publicly declare support for Kurdish political parties. Such prohibitions have gradually been revoked. […]
The use of Kurdish in public is legal and Kurdish is commonly used in Turkey, including in Istanbul and other cities of western Turkey. Kurdish is used in political advertising and campaigning, private education and most social contexts. Measures taken by the Government to support the Kurdish language include establishing a publicly-funded Kurdish-language TV station, though this channel does not report on political issues. […]
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] In many areas of Turkey, Kurds do not face societal discrimination. Kurds can access government health and education services—this normally includes free public schooling and, for the poor, access to free public health care. Kurds can normally secure private sector employment and public sector employment subject to the limitations outlined in the previous section.
In eastern and south-eastern Turkey, societal discrimination rarely occurs given the large Kurdish population in these areas. […]
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report, Turkey, 5 September 2016
The Tribunal considers that the applicant’s claims about her own experiences of racial or religious discrimination to be generalised, unsubstantiated and unreliable. This flows in part from the Tribunal’s assessment that while she may be of Kurdish ethnicity and a nominal Alevi, she does not speak Kurdish or ordinarily present as a Kurdish person, or practice her faith actively. (The Tribunal notes that the applicant also claimed to have been involved in a range of cultural/political activities in Turkey, which it assesses below.)
The applicant has struggled to give any specific examples of harm that she has suffered as an Alevi Kurd (other than in the course of her claimed political activism, which the Tribunal examines below). She recalled that a neighbour had once got angry and cursed her and her family, stating that one goes to heaven after killing seven Alevis; and another person called her a ‘slut’.
The applicant claimed that ‘religious and ethnic oppression’ forced her to quit her university studies in February 2009. When asked about this at hearing, she said that she married in 2009 (it was actually October 2008), and she was heavily involved in political protests and similar activities. In further discussion, the applicant said that she sat the examinations but did not receive results – by implication, because she was subject to pressure. As for the documentation that she provided for her Australian student visa, she replied that she only presented her high school results (not university). The Tribunal found her account vague.
In sum, the Tribunal accepts that the applicant may have experienced some official or social discrimination, or at least been aware of attitudes to Alevi Kurds. However, she completed her schooling and started tertiary studies. The Tribunal is not satisfied that she was forced to abandon her studies due to racial and religious discrimination, as originally claimed, or due to any political or cultural activities (which it explores further below). In other evidence, she indicated that her male relatives all work, mainly in unskilled occupations; that she later worked in [a business]; and (as evidenced from the protection visa application form itself) that the applicant husband completed his military service and worked for many years as [an occupation 1]. All family members remain living in Gaziantep. The Tribunal appreciates that racial and religious discrimination can have a pervasive effect, but it is not prepared to accept at face value that the applicant experienced discrimination that cumulatively amounted to serious or significant harm in Turkey. It is also not satisfied – given that the applicant does not speak Kurdish and is not an active Alevi adherent – that she would have presented as an Alevi Kurd in Turkey, but refrained from doing so in order to avoid the risk of serious or significant harm.
Family conflict – opposition to the applicant as an Alevi
In her written statement, the applicant claimed that she fell in love with a Sunni Kurdish man. However, his family objected to the marriage because the applicant was an Alevi, and the couple were forced to separate. She wrote: ‘It was painful for me to come to terms with this separation. I knew I would not be able to love someone the way I loved him. Therefore, I agreed to marry the first suitor that my parents chose for me.’ As noted above, on the protection visa application form, the applicant husband identified himself as an Alevi Kurd. The implication is, in other words, that the applicant’s parents chose her husband, only after she was forced to separate from her real soulmate.
The applicants claimed in the Department interview and during this review that the original statement was wrong. The applicant husband is not an Alevi Kurd. Rather, he is the Sunni Kurd referred to in the original statement of claims. At hearing, the applicant explained that there were a number of translation errors in the original application, as the person assisting them had been unwell.
The applicants now claim that they met through Kurdish groups[6] (in particular, as the applicant tried to regain her Kurdish identity and became politically active). Because the applicant is an Alevi Kurd and the applicant husband is a Sunni Kurd, their families objected to the union. The applicant’s family eventually came to accept it. However, the husband’s family – particularly some uncles who are strict Sunni Muslims and behave like Islamic State of Iraq and Syria (ISIS) members – strongly oppose it. The applicant claims that these men are radicalised and have access to weapons, and that they have threatened to kill her. According to the letter dated [in] April 2017, from her psychiatrist: ‘With the birth of their son, these threats intensified and included both her and the baby’.
[6] The submission of [April] 2017 states that it was in a group of individuals campaigning for Kurdish beliefs and status that the applicant met the applicant husband, ‘also Turkish but a Sunni Muslim’. The Tribunal understands the reference to Turkish to be a typographical error, meant to read ‘Kurdish’.
The applicants confirmed these claims at hearing. The applicant said that they had hoped that the conflict with the husband’s family would ease after the birth of their son, but it has in fact intensified. The applicant husband said that he used to try to explain the situation to his radical relatives, but they became more aggressive over time, and came to his workplace and beat him up for having married an Alevi woman. In response to the Tribunal’s puzzlement as to why he had not presented his own protection claims, he merely replied that he presented all these facts from the outset, but maybe they were not included in the original statement.
The applicant has consistently claimed that she was in a relationship with a Sunni Kurdish man, and that this aroused opposition from that man’s family. However, there is a clear discrepancy as to whether that man is an earlier partner, or in fact the applicant husband.
The Tribunal has significant concerns about the claims that the applicant husband’s family, in particular, uncles who are ‘like ISIS’ have threatened to kill the applicant and the applicant child, or that they have beaten up the applicant husband. First, the Tribunal is troubled by the husband’s identification as an Alevi Kurd on the application form, and the specific information in the written claims that the applicant was in a relationship with a Sunni Kurd, and was forced to end it. The applicants claimed that the translator who prepared the form was ill, with [a medical condition], and made other errors. However, the applicant said at the outset of the hearing that she did not wish to change or correct anything in her original statement, and she has not alerted the Tribunal to any other mistakes by the person who prepared the text. It seems odd that the translator’s health affected just one aspect of the written claims. Second, the applicant parents married in October 2008; the applicant child was born in [year]; and the applicants arrived in Australia in October 2013. The applicants lived in Gaziantep throughout this period, and during 2013, the applicant herself worked in [a business]. The Tribunal considers that there would have been ample chance for hostile relatives to harm the applicants if they had intended to.
The Tribunal accepts that the applicant is Alevi, and that the applicant husband may be Sunni. However, it concludes that neither is devout, or from strictly religious families. In light of the above concerns, the Tribunal finds that the applicants are not subject to credible threats of persecution or significant harm from the applicant husband’s relatives for any reasons, including religion.
Political involvement
In her statement of claims, the applicant described the historical and ongoing mistreatment of Kurds, particularly Alevi Kurds, in Turkey, implicitly as the backdrop for her political involvement in successive left-wing political groups.
The applicant described her involvement in a range of cultural and political activities, while she was in Turkey, initially in the following terms:
§ While at high school, she went with friends to the [Town 1] office of the (then) legal political party, DEHAP. She continued visiting the offices of the successor political parties, DTP and BDP.
§ She claimed that [in 2005], she spent several years mainly involved in political activities, which she continued, albeit at a lesser level, after she started her [vocational] studies in 2008.
§ The applicant participated in party various activities:
- These were mainly seminars at the party premises.
- She also accompanied friends to visit ‘the homes of many ethnic Kurds to talk to them about our human rights and cultural rights with the aim of enlightening them and garner their support for the party in elections’.
§ She participated in public events such as Newroz (New Year) celebrations, and demonstrations and protest marches.
The applicant gave further details at hearing, relating to both her cultural and political activities in Turkey (the Tribunal accepts that Kurdish cultural activities are often intertwined with the promotion of Kurdish identity and political ideals). Her evidence at hearing was somewhat unfocused and repetitive. The Tribunal’s summary of the key points in the exchange follows:
§ The applicant said that her family are not politically engaged, although some individual relatives are. However, at high school, she started to identify more as a Kurd and engage in cultural and political activities, together with friends with similar interests.
§ She variously referred to participating in Kurdish cultural events (such as Newroz), May Day celebrations (for Kurdish left wing parties), women’s auxiliaries and visiting the homes of Kurdish people to encourage them to embrace their cultural identity.
- Asked whether she took steps to learn Kurdish or about the culture, the applicant replied that she had wanted to learn the language, but her parents dissuaded her.
- During the course of the hearing, the Tribunal signalled its puzzlement that the applicant would visit the homes of Kurds and talk about human rights and cultural rights, given her own lack of language. This is particularly so given the high levels of mistrust between the two communities. The applicant said that she undertook these activities with a Kurdish speaker.
§ Asked whether she keeps in contact with any friends who engaged in these activities, the applicant said that she has been preoccupied in Australia with her young family and settling in, and therefore has not maintained contact with any former cultural or political colleagues, even if only to find out whether they are safe. As a result, she was unable to provide any examples of correspondence or contacts with like-minded people from this period, or even later.
§ The applicant said that she has no membership cards or other documents relating to her political activities, at least to hand. However, she later produced a photocopy of a BDP membership card with her photograph on it, issued in [Town 1] in 2008. A copy of an email indicates that a person sent this document to another person on 17 March 2017; there is no heading or explanatory comments. She said that she was arranging for the original to be sent to her.
§ The Tribunal also explored whether, given the applicant’s claimed extended period of political activities, she had any photographs, correspondence or other contemporaneous material to support her claims. She replied briefly that she left Turkey hurriedly, to save her life, and did not bring any supporting evidence. The Tribunal has not received any material of this kind. The Tribunal notes the recent, undated statement from the applicant’s parents, in which they claim that the police seized the applicant’s photograph album and laptop during a raid (in perhaps late 2015). Even if the Tribunal were to take that statement at face value (which it does not, for the reasons set out below), and to assume that the police seized evidence of her past political and cultural activities, there remains the question of whether party colleagues, friends or others might have some records to assist the applicant. The Tribunal formed the strong impression that the applicant was not genuinely exploring whether such materials exist, and that in fact, there are none.
The Tribunal discussed with the applicant her work with the pro-Kurdish political parties. By way of background, DFAT[7] described the main political party operating during the applicant’s time in Turkey in the following terms:
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 (see further details below). The BDP takes its lead from and normally represents the political views of Abdullah Öcalan, the PKK and the KCK. It also claims to represent the views of other ethnic and religious minorities in Turkey.
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report, Turkey, 5 September 2016
The BDP’s predecessor parties, representing Kurdish interests, were all deemed by the Government to be illegal terrorist organisations or found by the courts to the unconstitutional, usually on the basis that they provide support to the PKK and KCK. During the period of the applicant’s (claimed) political activism, these were the Democratic People’s Party (Turkish: Demokratik Halk Partisi, DEHAP; active 1997 to 2005); and the Democratic Society Party (Turkish: Demokratik Toplum Partisi, DTP; active 2005 to 2009).
At hearing, the applicant could not recall the name of the head of DEHAP’s local branch in [Town 1], and when asked about the DTP, commented that she only went to the events (in other words, was not involved in the party organisation). She named several Kurdish political magazines. In response to questions, she said that she participated in local events, but also travelled to other locations, such as Diyarbakir, Saniurfar and Adana. Asked how she juggled these commitments with her study, and later her work, she answered indirectly that she found these political/cultural activities ‘relaxing’ (which the Tribunal understood to mean, a welcome break from her routine activities).
At hearing, the applicant said that she had visited the BDP office in Gaziantep a total of about 50 to 60 times from 2008, albeit on a less frequent basis after she had the applicant child in [year]. She could not recall the address of the office, but said that it was in a laneway, and there was a [particular] store on the ground floor. She was not sure whether, apart from the office in [Town 1], the BDP had offices in other parts of Gaziantep city. The Tribunal discussed with the applicant the reported mob attack on the BDP office in Gaziantep in 2012. Asked if she knew about the events that led to it, the applicant was not sure, but commented that the Turkish state is always trying to provoke the Kurds. The Tribunal put to the applicant that a bomb explosion had killed nine people (Turkish civilians) the previous day, and this had prompted protestors to attack the BDP office.[8] It signalled its surprise that she was not familiar with that incident even though, at the time, she was mainly preoccupied with her young child.
[8] Kurdpress, BDP Gaziantep office attacked, 22 August 2012. Gaziantep office attacked
The applicant’s written statement of claims described her political activities in a way that suggested they were focused locally. However, on 3 March 2017, she presented to the Tribunal a purported arrest warrant that referred to her involvement in a protest at Diyarbakir, in August or October 2010. At hearing, the applicant said that she also attended political activities in other places. The Tribunal explored details of this alleged incident (in part, given its critical role in the applicant’s protection claims, and also to check whether it could shed light on her political activities and profile more generally). The applicant claimed that, on that occasion, ‘we’ (the applicant and BDP party colleagues) organised a peace meeting in Diyarbakir, to bring together Kurds and Turks, and to discuss equal rights and an end to the civil war. The applicant said, in response to the Tribunal’s further questions, that she was a speaker at the meeting. She recalled vaguely that it was during the week; that she took the day off work; and she left the kids with her mother (Tribunal note: the applicant child was not in fact born yet).
In assessing the applicant’s political commitment and profile in Turkey, the Tribunal has also had regard to the photographs produced of her and the applicant husband at several Kurdish cultural events and a protest in [Australia]. These show the applicant husband’s presence at a pro-Kurdish gathering in what appears to be a mall, on one occasion (2015); and the applicant’s presence at Kurdish cultural events on two occasions (2016 and 2017). In the Tribunal’s view, they reveal little about the applicant’s or the applicant husband’s political commitment or profile in Turkey.
The applicant produced a BDP card issued in 2008, in her name, which also bears the date [in] March 2009. The Tribunal has some concerns about the provenance of this card, given the applicant’s earlier equivocal statements as to whether she had such a card in Turkey and in the absence of other supporting evidence. However, it is prepared to give the applicant the benefit of the doubt and accept that she became a party member around the time that she attended the vocational school at [her] University.
The Tribunal has significant doubts about the applicant’s claimed profile as a political/cultural activist. Her evidence was very vague, and often unsupported by the kind of observational detail or anecdote that would indicate she was recalling personal lived experience (even if imperfectly). She provided little context or explanation for her claimed profile, such as what propelled her into political activism when other family members and the applicant husband had no such profile. The Tribunal found her explanations as to how she promoted Kurdish cultural identity and political interests, without having learned the language, unpersuasive. And the Tribunal found the applicant’s recent account of her activities during the protest in Diyarbakir, particularly her claim to have organised a peace protest and made a speech there, to be vague and also at odds with the tenor of her previously claimed activities. Finally, the Tribunal finds it surprising that the applicant has no contemporaneous material from this period, particularly if, as claimed, she focused on these activities from 2005 to 2008. It found her explanations for this lack of material to be unpersuasive.
Taking the evidence as a whole, the Tribunal accepts that the applicant is broadly sympathetic to the Kurdish cause and the treatment of Alevi Kurds in particular, and that she joined the BDP as a nominal member in 2008. It accepts that she may have participated in some BDP activities during this period, including Newroz. It finds that, after marrying and leaving college in 2009, her political links petered out. It does not accept that she gained any adverse profile, in [Town 1] or elsewhere in Gaziantep; that she regularly visited the political office; that she called on Kurdish residents to promote the BDP’s cultural or political agenda; or that she engaged in any political activities in other parts of Turkey, such as Diyarbakir.
The Tribunal finds that the applicant’s level of political and cultural engagement reflected, among other things, her social milieu (her family, the applicant husband and others have not been politically active) and her priorities after marrying and leaving college. The Tribunal does not accept that the applicant refrained from political activities due to pressure at college, or any other restrictions or risks associated with such activities.
Mistreatment on political grounds
The applicant claims that she (like others in the political party, and indeed many other Kurds) faced police harassment, such as unwarranted checks, interrogation and detention, over a period of time. The authorities’ pretext for these actions was that the Kurdish parties were aligned with and supporting the terrorist PKK, but on each occasion, the police released her without charge.
The applicant claims that this treatment ultimately led to her severing her links with the political parties. Elsewhere in her claims, however, she explained that she reduced her political activities after the birth of her son in [year]. The Tribunal does not accept, on the face of it, that the applicant stopped or reduced any political work in response to threats,
The applicant claims that a series of incidents occurred in July 2013 that triggered the applicant parents’ decision to leave Turkey, as the applicant believed her life was in danger.
§ One evening in late July 2013, two plainclothes officers pushed her into an unmarked car, and drove her to the outskirts of the city. They impressed on her the need for national unity, and the threat that the BDP posed because of its support to the terrorist organisation PKK. They flagged that she could serve Turkey by reporting what was going on in the BDP. In other words, they proposed she ‘spy’ on the party.
- The applicant replied that she was not much involved in the BDP now, due to family commitments. She added that, in any event, they were not involved in any illegal activities.
- The men told the applicant ominously that it would be to her benefit to cooperate with them. They dropped her off close to her home, and warned her not to tell anyone about the conversation.
§ About two weeks later, the same officers located the applicant again and took her to a secluded location. She reiterated that she would probably not be of much benefit to them, but they insisted that they could ‘direct’ her. They added (in the applicant’s words): ‘Look, if we kill you and bury you there, nobody will ever know. There are already more than 17,000 missing Kurds in Turkey, one more will not make much change’. The applicant replied that she would think about it. They again warned her not to discuss it with anyone, including her husband.
§ The ‘harassment’ continued. The applicant eventually broke down and told her husband, and the couple decided to leave Turkey as soon as possible.
The applicant reiterated these claims at hearing. She spoke in broad terms about police harassment during her visits to the BDP office, during protests or simply on the street; intimidation; short-term detention; and being monitored. The Tribunal explored with her whether any of these incidents interfered with her day-to-day life, such as her work commitments. She replied that she usually went to the BDP office after work.
Asked whether she could give any specific instances of party colleagues being arrested, charged or imprisoned (that is, prominent incidents in Gaziantep that might also appear in press reports), the applicant replied vaguely that some had been arrested. Pressed for any examples of BDP persons in Gaziantep whom the authorities targeted, she replied obliquely that her mother’s aunt’s home was bombed. The Tribunal was unable to gain any more specific information that would display her personal acquaintance with the BDP office, and her knowledge of official harassment.
In relation to the unsuccessful attempt by Turkish intelligence officers to recruit her as an informant, the applicant recounted the occasion in July 2013 that some unknown men abducted her, their allegations and attempt to recruit her as an informant, and their ominous statement on later dropping her off, that she should think carefully about their offer. She also recounted the second occasion, two weeks later, when they took her to a secluded forest and implicitly threatened to kill her; and the continued threats that led her to reveal the situation to the applicant husband.
The Tribunal signalled its puzzlement that the Turkish security forces would target the applicant, who did not speak or understand Kurdish; who had not been a regular visitor to the party at that time; and who had full-time work that, at best, allowed her to see BDP people at weekends. The applicant said that BDP business was usually conducted in Turkish, so language would not have been a consideration. She alerted the police to her work commitments, but that did not dissuade them. Basically, she indicated that she had also been puzzled as to why they had targeted her,
The Tribunal noted that the applicant obtained her Turkish passport in August 2013, just weeks after the alleged first abduction and recruitment attempt. She replied that there was nothing else to do; she had to flee. She suggested that her ability to obtain a passport, even if the Turkish security forces were trying to recruit her, was unremarkable. The various official functions are compartmentalised, and there was no court decision in relation to her.
The Tribunal has already found above that the applicant was formally a BDP member up to 2009; that she had only low level attendance at some cultural or political events; and that this petered out after she left college, for family and work reasons. The applicant’s evidence about the ongoing harassment (including detentions and mistreatment) from the security forces was vague, and the Tribunal does not accept that it reflects her personal experiences in the period up to 2009, and more particularly not, after that time.
The Tribunal found the applicant’s account of having been abducted twice, subject to forced recruitment and then ongoing threats and harassment lacking in credibility. First, it has difficulty believing that the security forces would find the applicant – a person who does not speak Kurdish (and could therefore not eavesdrop on planned protest or terrorist activities), who at the time was working full-time and available only at weekends, and who, in any event, had wound back her involvement in the party years earlier – as a suitable candidate to be an informant. Second, the Tribunal has already rejected the applicant’s account of her profile in local BDP circles (political and cultural), and has broad concerns about her credibility. The Tribunal notes that the applicant may also have related some aspects of these claims to [Dr A] or [Ms A], or at least drawn on them. However, their willingness to accept the applicant’s general depiction of her experiences in Turkey does not displace the Tribunal’s significant concerns.
Taking all these concerns together, the Tribunal finds that she has fabricated these claims to establish that she left Turkey facing an imminent risk of serious harm or significant harm, on political grounds. It finds that they are untruthful.
Criminal trial in absentia
The applicant presented a new claim to the Tribunal, namely that her parents had received court papers (since the delegate’s decision in May 2015) indicating that she had been charge and tried in absentia for the offence of participating in an illegal BDP demonstration in Diyarbakir in 2010. On [a date in] June 2015, she was found guilty and sentenced to five years imprisonment.
As noted above, the Tribunal received copies of two purported official documents, typed on plain paper, and one with a wet stamp.
§ One of these is a document from [Public Agency 1] in Gaziantep, dated [in] June 2015, stating that it was decided she would be ‘reprimanded with a 5 year jail sentence upon investigations’, as a result of her having ‘been involved in illegal incidents together with a group during the BDP demonstrations in Diyarbakir [in] October 2010’, and sentencing her to five years imprisonment.
§ Another is purportedly from the same office, an ‘apprehension order’ (arrest warrant) for the applicant from [Court 1], also dated [in] June 2015, noting that she had been accused of ‘being a congressional member of a terrorist organisation – outlawed PKK’, and ‘making propaganda for a terrorist organisation’. It also records her prison sentence of five years.
The Tribunal has a number of concerns about this claim, and the evidence provided to support it:
§ Although the translations refer to these as ‘court decisions’, in fact they are both documents issued by [Public Agency 1]. There does not appear to be documentation from any court. The two documents contain the applicant’s full name and identity card number, and the [public agency’s] reference number, but they do not bear any other details (such as court decision or file numbers).
§ Most significantly, there is a discrepancy in the dates of the alleged offence. The purported official documents give different dates for the alleged offence in Diyarbakir: [one date in] October 2010, according to the [public agency’s] note, and [a date in] August 2010 according to the arrest warrant. The submission of 2 March 2017 describes this as a ‘clerical error’. As noted at hearing, the Tribunal has difficulty with the notion that the [public agency] would make such blunders when issuing two documents on the same day, both relating to a single serious criminal offence.
The provenance of these documents is also problematic.
§ The applicant claimed that she did not receive any documents relating to this offence, or have prior notice, because she was no longer living at the address they were sent to (in [Town 1]). Officials brought them to her parents’ address, sometime after their issuance, in June 2015.[9] Relevantly, in her protection visa application, she wrote that she lived in [Town 1] from October 2008 until October 2010; and that she was then in the district of Sehitkamil.
§ The ‘apprehension order’ (arrest warrant) has some details relating to [Court 1] files, as ‘2010/ [file number] Principal’ and ‘2014/ [file number] Decision’. It refers to a court decision no. ‘2015 [number]’. These numbers suggest some kind of timeframe for the criminal action.
§ The submission of 2 March 2017 states that the applicant’s parents received the two documents after they were issued in June 2015; it was ‘forwarded to them’.
§ In an undated statement, the applicant’s father stated that about 18 months earlier (so, possibly in late 2015), seven or eight police officers knocked on the door, asked about the applicant’s whereabouts, and raided their home. The parents explained that she was overseas. The officers accused them of lying, warning that they would find her. They handed the parents the documents, and seized the applicant’s photographs and laptop. The police indicated that they would return these items only to the applicant in person (presumably an indication that she was a wanted person in their eyes). The parents conclude that they fear for the applicant’s safety, as there is already an arrest warrant out for her. (The letter ends with the request that the Australian Government grant her a protection visa.)
- The Tribunal accepts that the applicant’s parents would have confirmed the contents of this letter if the Tribunal had telephoned them and taken oral evidence. However, given the parents’ obvious direct interest in this success of applicant’s protection visa application, the Tribunal gives the contents of the letter and the parents’ willingness to confirm this orally relatively little weight as independent corroboration of what actually occurred.
§ The Tribunal asked the applicant how, if criminal charges were filed in 2010, she managed to avoid further action, and even managed to get a passport in 2013. She replied that during this period, the authorities made many accusations and filed charges, all pending. She knew nothing about these charges. As for the delivery of summonses, etc., she explained that the original summons must have gone to an earlier address where she had been renting. Contrary to her earlier advice, that she had lived at one address from October 2010 ([specified address in] Sehitkamil), she said that she had in fact been moving around to different addresses.
§ The Tribunal discussed with the applicant how she learned about the documents, and how she came to obtain them. She said that her parents sent copies to her. As for the originals, she said that a [named] friend from the Kurdish community in [Australia] knew someone who was travelling to Gaziantep. That person visited her parents, and collected the documents. The applicant said that it was important for her to receive the originals, and she did not trust receiving them by mail. She does not know the name of the person who actually called on her parents. The applicant husband gave similar evidence about the alleged incidents on that day.
[9] The submission inadvertently records the date as June 2016.
As noted above, the Tribunal asked the applicant about the alleged incident in Diyarbakir, in the second half of 2010. She said that she attended a meeting there, taking a day’s leave and leaving the ‘kids’ with her mother for the day. She cannot remember the date, but thought that the meeting took place during the week. She recalled that it was an important meeting, promoting equal rights for Turks and Kurds, and for an end to conflict. Asked for details of the key speakers, the applicant said that she was a speaker at the meeting, and her friends also gave speeches. As for travel arrangements, they got up around 4 or 5 am, and reached Diyarbakir mid-morning. (According to Google Maps, Diyarbakir is approximately 300km from Gaziantep, and about 3½ hours by road.) There were people there from various parts of south-eastern Turkey.
The Tribunal noted that she had obtained a Turkish passport in August 2013, without apparent difficulty. The applicant replied that, at that stage, there was no court decision against her. Later, the Tribunal put to the applicant country information that Turkish nationals must apply for passports at their local police office, and obtain a police clearance.[10] The applicant commented that the police do more thorough checks for people who are applying for their first passport. The applicant gave no insight as to how she knew this. Furthermore, it is somewhat cryptic, as the applicant claims that the passport she obtained in 2013 was in fact her first one.
[10] Immigration and Refugee Board of Canada 2010, Turkey: Release of biometric passports; requirements for acquiring special or service passports, TUR103453.E, 1 June, Netherlands delegation to the Council of the European Union 2002, Official General Report on Turkey, 15 April, Council of the European Union, Refworld website: >
The applicant’s parents gave a statement describing the occasion in late 2015 when police officers came to their home searching for the applicant, and handed to them the ‘court documents’. The Tribunal notes that they (the parents) were willing to give oral evidence to confirm their statement.
§ The Tribunal signalled its reluctance to take oral evidence from the parents.
- First, it must consider the potential risks to applicants and their families or friends, of speaking with witnesses in the country of persecution, particularly in cases involving claimed State persecution and allegations of serious criminal offences.
- Second, the Tribunal accepts that the parents might have been able to give further details about the claimed police raid, if asked; and that their evidence might well have been consistent with each other. It gives their willingness to give oral evidence appropriate weight.
- In the present case, the Tribunal considers that their oral evidence would have been of little additional probative value, taking into account: (a) that it appears that they would have been giving evidence in each other’s presence, and with the ability to refer to the written statement that they had prepared; and (b) given the lack of any additional information by which the Tribunal could have tested their accounts (for instance, the applicant relied solely on their account of what they witnessed).
§ In the submission of 8 March 2018, the applicant’s representative submitted that the Tribunal should take oral evidence from the applicant’s parents, unless it accepts the ‘court documents’ as genuine.
- In the Tribunal’s view, the parents addressed a number of issues that are relevant to this case, such as the occasion when the police allegedly handed over the ‘court documents’, and when they seized the applicant’s laptop and photo album (which potentially goes to her lack of documentary evidence to support her claimed political activism in Turkey).
- The parents’ account, if accepted in full, would tend to support the applicant’s claims about the conviction and arrest warrant, but – even at face value – would not be conclusive proof as to the genuineness of the ‘court documents’.
§ The applicant’s parents are obviously keen to support this application and, in the Tribunal’s view, their evidence (written and/or oral) carries little weight as independent corroboration for her claims. Their letter of support and their willingness to confirm its contents orally do not overcome the Tribunal’s significant concerns about these claims.
The Tribunal has already rejected the applicant’s claim to have attended a meeting in Diyarbakir in 2010, or any similar event. It has also concluded that the applicant has made other untruthful claims, including the now-rejected incidents in July 2013 that allegedly prompted her and the applicant husband to leave Turkey. The Tribunal’s doubts are reinforced by the errors contained in the purported ‘court documents’ that the applicant presented. The Tribunal finds that these documents were manufactured to assist her case, and accordingly it gives them no weight.
The Tribunal finds that the applicant was not in Diyarbakir at a political event in August or October 2010; that the Turkish police did not bring charges against her as a member of the PKK or for ‘making propaganda’; that she was not tried in absentia, convicted and sentenced to five years imprisonment; and that there is no arrest warrant in relation to her.
Activities in Australia
The applicants presented several photographs of their involvement in Kurdish activities in Australia. In one group of photographs, which appear to have been taken around 2015, the applicant husband is standing near some Kurdish protestors in what appears to be a city mall. In two other sets of photographs, annotated as Newroz 2016 and 2017, the applicant is dancing in what appears to be a community hall, used by [Kurdish Group 1]. The applicants also presented a letter from that [Group].
The Tribunal accepts that the applicant parents have made contact with the Kurdish community in [their city], and attended these events. It accepts that the Kurdish community has welcomed them. The Tribunal finds that the applicants’ contacts with the Kurdish community were brief, and primarily in order to obtain evidence for this protection visa application. It places minimal weight on these contacts as evidence of any cultural or political commitment with the Kurdish cause, or as evidence that the applicants feel common cause with them due to their past experiences.
The Tribunal accepts that the applicant has mental health problems, as described by [Dr A] and [Ms A]. There appear to be multiple possible triggers for these. The Tribunal notes that the applicant’s concern about her and her family’s migration status and welfare have been dominant themes in her consultations with medical and social welfare staff. It appreciates the need not to read too much into that, as it appears the applicant has been keen to resolve her family’s immediate needs in Australia, and this does not necessarily diminish the significance of her concerns relating to Turkey.
The Tribunal accepts that the applicant has fears relating to Turkey, but it is difficult to ascertain whether these relate to specific instances of past harm and/or specific sources of future harm; or whether they relate to the general security, economic and social conditions there. In light of the above assessment, the Tribunal finds that the applicant’s fears, assessed by [Dr A] and [Ms A] to be very real, do not in fact relate to past persecution or significant harm in Turkey, as an Alevi, a Kurd, a political/cultural activist, the partner of a Sunni Kurd or any other specific protection claim.
Summary of Findings
The Tribunal accepts that the applicants are Kurdish; that the first-named applicant is a nominal Alevi; and that the applicant husband is a Sunni Kurd. The Tribunal finds that both applicants are well-integrated into mainstream Turkish society. It accepts that they regret their loss of Kurdish identity; that they sympathise with efforts to promote Kurdish culture; and that they favour pro-Kurdish parties. The Tribunal accepts that the applicant joined the BDP briefly while at university, and may have attended some cultural and political events, as a low level participant, for a limited period. It does not accept that she was an activist of any kind – including visiting political events in Diyarbakir or other places – or that the Turkish authorities ever perceived her as such.
The Tribunal accepts that the applicant may have faced some low-level discrimination, but it does not accept that she faced repeated or ongoing harassment from the Turkish authorities or the community at large; that she was often detained, interrogated or mistreated; that Turkish security agents tried to recruit her as an informant on the BDP; that they threatened her and her family (including the applicant husband and son) if she refused to comply; or that the applicants departed Turkey in response to such threats. The Tribunal finds that the applicants left Turkey for other reasons (although it accepts that the general security environment, economic outlook and communal tensions may have played, and continue to play, an important part in the parents’ minds).
The Tribunal accepts that the applicant and her husband may be Kurds who are Alevi and Sunni respectively. It accepts that the families may have initially been troubled by such a match, but for the reasons set out above, it rejects the claims that the applicant husband’s extremist relatives have threatened to harm either applicant, or that they have beaten him up.
The Tribunal accepts that the applicant has mental health problems in Australia. It does not accept that these are the result of any past persecution or significant harm in Turkey. The available evidence points to several factors that may have contributed to or caused this. In relation to past events, these could include her knowledge of Turkey’s security, economic and social problems (particularly in the south-east of the country), and, as she commented at hearing, her concern for her [children’s] futures. The Tribunal also notes that the family’s unresolved migration status in Australia has taken a toll on her; and that she has had difficulties settling into Australia, including in terms of cultural adaption, work and finances. However, the Tribunal has neither the expertise nor required information to reach any conclusions regarding the exact causes of the applicant’s mental health issues, and in its opinion it is unnecessary to do so for the purpose of this decision. For the reasons stated above, it does not accept that they are attributable to any past experiences of persecution or significant harm; any imminent fear of such; or the cumulative effect of having had to modify her conduct in order to avoid such harm.
ASSESSMENT: REFUGEE CRITERION
100. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if she returns to Turkey, and relevant country information, she has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.
101. The Tribunal was unable to engage the applicants in a meaningful discussion of their conduct if they were to return to Turkey. The first-named applicant was upset at the prospect. She stated that she cannot return, and that they will all be ‘finished’ if this happens. Given the applicants’ backgrounds and continued ties with Gaziantep, the Tribunal considers it appropriate to proceed on the basis that this continues to be their home area, and that they would return there.
Race, religion, political opinion and related grounds
102. The Tribunal has accepted that the applicant is an Alevi Kurd, at least nominally; that she once joined the BDP; and that she participated in some political and cultural activities, although these petered out after she married and left college.
103. The Tribunal does not accept that the applicant is an ‘unassimilated Alevi Kurd’; or that she has suffered harm amounting serious harm or significant harm, as a person of Kurdish origin or a nominal Alevi, or that she is an Alevi in an interfaith marriage (with a Sunni) who has been subject to threats.
104. In light of the findings above, the Tribunal does not accept that the applicant has any personal profile as a political supporter or activist of pro-Kurdish parties; as a participant in or promoter of Kurdish cultural identity in Gaziantep; or any past experiences at the hands of the Turkish authorities (such as being monitored, detained, assaulted, abducted or being subject to a failed recruitment attempt), that establish her as a person of interest to the Turkish authorities. Specifically, the Tribunal does not accept that the applicant has been charged and convicted in absentia of any terrorism charges, or that there is an arrest warrant out for her.
105. At issue is whether the applicant - as a person of Kurdish origin, a nominal Alevi (who may be married to a Sunni) and a person who favours the left-leaning pro-Kurdish parties, and was briefly a member of the BDP – faces a real chance of serious harm if she returns to Turkey. The Tribunal accepts that the applicant would continue to favour such parties on her return to Turkey, but it does not accept that she has any political motivation (or any strong cultural ties with the Kurdish community that the Turkish authorities might interpret as being political) that would lead her to engage in party politics or political/cultural activism.
106. The applicant parents have attended some Kurdish events in Australia. Given its assessment of their political profile and interests, the Tribunal concludes that they did so primarily for the purpose of strengthening the applicant’s claims to have a well-founded fear of Convention-related persecution, to obtain photographs for presentation in the case. However, in light of [Kurdish Group 1’s] acceptance of them, the Tribunal is satisfied that the applicants did not engage in the conduct solely for the purpose of strengthening the applicant’s claims. The applicant’s conduct therefore does not fall within the scope of s.91R(3) of the Act (the applicant husband’s does not anyway, in relation to an assessment of her claims). The Tribunal places minimal weight on the parents’ attendance at these events as evidence of the applicant’s future conduct in Turkey. Furthermore, the applicant has not claimed, and there is nothing to suggest, that the Turkish authorities may have monitored these activities and have an adverse interest in her if she returns to Turkey as a result.
107. [Dr A] and [Ms A] briefly referred to the applicant’s past experiences and prospective fears as a ‘Kurdish woman’. Obviously the applicant’s gender is relevant to her overall experiences – arguably, for instance, the now-rejected claims that her husband’s relatives want to kill her, or that the Turkish authorities tried to recruit her as a spy. However, she has not claimed, and the Tribunal is not satisfied on the material, that she fears persecution, or faces an elevated risk of persecution, as a woman.
108. The Tribunal discussed with the applicants a range of country information material relating to current and prospective conditions in Turkey, particularly her home area in the south east of the country. The most recent submission summarises the DFAT report discussed at hearing[11] in the following terms:
[11] DFAT Country Information Report: Turkey, 5 September 2016; it also referred to the Human Rights Watch World Report 2017: Turkey, 12 January 2017
§ ‘The observance of democratic practices and human rights was unsatisfactory, and declining as President Erdoğan consolidated his position as president;
§ The political position of Kurds had deteriorated since a ‘high point’ in 2014 when the HDP cleared the threshold of 10% to be recognised as a party in the legislature; and
§ The war in Syria has increased internal tensions with respect to Kurds in the south-east.’
109. The applicant’s representative also pointed to Human Rights Watch’s World Report 2018, which identifies ongoing problems in Turkey such as the ongoing state or emergency, the imprisonment of Kurdish parliamentarians, the prosecution of journalists, the dismissal of municipalities and the complicating effect of US support for ISIS opponents in Syria, including Kurdish forces affiliated with the PKK. He notes that although he is not suggesting that ‘these facts would necessarily directly affect [the applicant…, they] are indices of a situation where the persecution of the Kurdish minority continues to be more serious than it was assumed to be in the delegate’s decision under review’. He adds that, in these circumstances, the authorities will likely ‘continue measures to punish [the applicant] for refusing to be a spy for them in Kurdish organisations’.
110. Having regard to the applicant’s circumstances as a whole, the Tribunal finds that there is no real chance of the Turkish authorities or anyone targeting her, let alone inflicting serious harm amounting to persecution, for any Convention reason. In reaching this conclusion, the Tribunal takes into account Turkey’s broader security problems and instances of communal tension, or the occasional terrorist incident, but it does not accept that the applicant has any past or future profile that give rise to a real chance of her being persecuted.
111. The Tribunal formed the impression that Turkey’s overall political, security, social and economic problems weigh heavily on the applicant’s mind, and strongly motivate her to stay in Australia. However, these general conditions affect all Turkish citizens to at least some degree. The Tribunal acknowledges that the security situation in Turkey, and more specifically in Gaziantep, has deteriorated in recent years, and the number of security incidents has risen. However, in the Tribunal’s view, the country information does not indicate that the general security situation in Gaziantep (or more generally in Turkey) gives rise to a real chance of serious harm to the applicant (as per s.91R(1)(b) of the Act); or involves systematic and discriminatory conduct (s.91R(1)(c)); or is for one or more of the Convention reasons (s.91R(1)(a)).
Mental health
112. The Tribunal accepts that the applicant has suffered mental health problems in Australia, and has received ongoing medical and counselling support. The available records clearly identify her situation in Australia as a major stressor, citing issues such as the family’s migration status, financial worries, housing, unemployment and the like. Clearly, these matters are no longer immediately relevant if the applicants were to return to Turkey. In the Tribunal’s view, however, there are two aspects of the applicant’s mental health status that are potentially relevant to an assessment of her prospects in Turkey.
113. The Tribunal has carefully considered whether the applicant’s recorded fears about returning to Turkey, such as the extreme panic and tearfulness that [Ms A] noted, if they were to recur on her return, would give rise to a well-founded fear of persecution (for instance, as a person with mental health issues who is also an Alevi Kurd). [Dr A], for instance, expressed concern about the impact on the applicant of her being returned to ‘the origins of her trauma’), which would put her at high risk.
114. The Tribunal accepts that the applicant will be disappointed if she and her family are not granted protection visas (or permanent residency in Australia on some other basis). However, in relation to the prospects of her suffering serious mental health issues, the Tribunal notes the following:
§ There are, in the Tribunal’s view, many circumstances in which an applicant feels pressure to remain in Australia, rather than return to their country of origin. The applicant alluded to this in her statement, in which she expressed admiration for Australia’s harmonious society, and contrasted it with Turkey’s ethnic and religious divisions. This suggests that the applicant feels pressure to produce the best possible migration outcome for her family, particularly her sons. The point is that a strong aversion to returning to one’s home country is not necessarily due to a fear of prospective harm, let alone a well-founded fear of Convention-related persecution.
§ The first recorded instance of the applicant seeking medical assistance was in September 2014, almost a year after her arrival in Australia. As noted elsewhere in this decision, she expressed concerns about the family’s migration status, and their circumstances in Australia, alongside references to her claimed persecution in Turkey.
§ [Dr A] and [Ms A] attributed the applicant’s mental health problems (in particular, her [condition] symptoms) at least in part to ‘the persecution she experienced as a Kurdish woman and a mixed marriage’. In other words, they appear to have accepted her accounts of her experiences and circumstances in Turkey, and considered that the applicant’s conduct was at least in part attributable to these factors. The Tribunal has already assessed these claims and concluded that, although the applicant is a Kurdish woman in a mixed marriage, she did not suffer persecution in Turkey for those or any other reasons.
§ In other words, the Tribunal does not accept that the applicant’s return to Turkey would be a return to a place of past persecution, which could in turn exacerbate the mental health symptoms that she is recorded to have displayed since September 2014.
115. [Dr A] opined that the applicant has ‘a very good prognosis […] should she remain in Australia where she can continue to obtain the counselling and psychiatric care she requires’. She expresses concern that ‘a return to the origins of her trauma’ would result in her being ‘at high risk and in need of care that may not be available’, again linking these expressly to ‘her extreme fear of being returned to Turkey’. The applicant has not claimed, and there is nothing to suggest, that she has been denied health care in the past. The medical documents indicate that the applicant has received counselling and [medication] in Australia. Apart from [Dr A’s] general comment, the applicant has not claimed, and there is nothing to suggest that Turkey’s healthcare system is unable to provide her with counselling or similar services, if the need arises. Having found that the applicant may have suffered some discrimination, but that she did not she did not suffer persecution, the Tribunal does not accept that she would in fact be returning to a place of past persecution. Furthermore, the Tribunal notes that at least some of the problems that contributed to her mental health problems – such as uncertainty about her migration status, acculturation difficulties and (implied) lack of family and social support – would not necessarily persist on her return to Turkey.
116. In sum, the Tribunal finds that there is no real chance of the applicant both requiring, and being unable to obtain, appropriate medical treatment or social support for any mental health problems that might arise on her return to Turkey.
117. The Tribunal has considered the applicant’s claims individually and cumulatively. For the reasons set out above, it does not accept that if the applicant returns to Turkey now or in the foreseeable future, there is a real chance he will face serious harm for reason of her Kurdish origins/ethnicity, her (nominal) Alevi faith, her leftist political leanings, her marriage to a Sunni Kurd, any mental health issues, or any other Convention reason.
118. The Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if she returns to Turkey: s.36(2)(a).
The applicant husband
119. The applicant husband made his application for protection as a member of the applicant’s family unit who does not have his own claims for protection. As noted above, he claims to be a Sunni Kurd who attended school until about the age of [age], also completed his military service, and later worked as [an occupation 1].
§ At hearing, he supported the applicant’s claims, in particular that his extremist Sunni relatives had strongly opposed their ‘mixed’ Sunni-Alevi marriage. Both applicant parents said that his relatives had threatened him and come to his work place, assaulting him on several occasions. He also claimed that his family are strict Sunni adherents, and he has not had contact with them for more than ten years.
§ The Tribunal also received several photographs showing him standing next to people holding Kurdish political banners, in what appears to be a CBD location (perhaps [in their city]). The applicants submitted these as support for the applicant’s claims (in other words, her Kurdish identity, and political/cultural interests), although they arguably also go to his identity and interests, as well.
120. The Tribunal checked with the applicant husband whether he wished to present his own claims for protection, particularly given the recent claim that his relatives had beaten him up and threatened him. He did not respond directly to this, and his representative also did not suggest that the Tribunal should consider the applicant husband as a person who has made his own claims for protection. The applicant husband has therefore not claimed to have a well-founded fear of Convention-related persecution in his own right.
121. For the sake of completeness, and to the extent that there is at least an implied claim before the Tribunal, namely that he is Kurdish, he favours Kurdish political causes and he has Sunni extremist relatives who have assaulted him in the past, the Tribunal does not accept that the applicant husband genuinely fears serious harm on his return to Turkey, for any reason, or that there is a real chance of that occurring. The Tribunal therefore finds that he also does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Turkey: s.36(2)(a).
The applicant child
122. There are no express claims made on behalf of the applicant child. However, the applicant claimed that, after the birth of the applicant child in [year], the husband’s relatives became more threatening towards her, and even threatened the applicant child. The Tribunal does not accept that there were any such threats. To the extent that there may be an implied claim, the Tribunal does not accept that the applicant child faces a real chance of serious harm amounting to persecution for any reason.
ASSESSMENT: COMPLEMENTARY PROTECTION
123. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Turkey.
124. The Tribunal refers to the findings of fact above. It is not satisfied that there are any circumstances in the present case – including the applicant’s situation in Turkey as a (nominal) Alevi, a person of Kurdish origins, a person who favours leftist political parties, a person in a mixed marriage, or a person who has some mental health issues – that put her at risk of significant harm. It finds that she has not been convicted of terrorism charges in asbentia and is of no adverse interest to the Turkish authorities for any other reason.
125. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her, such as: - (a) to meet the definition of torture; or (b) to meet the definition of cruel or inhuman treatment or punishment; or (c) to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. In other words, the Tribunal finds no other grounds that suggest she will be subject to significant harm, for any reason, if she returns to Turkey.
126. The Tribunal appreciates the applicant’s concerns about Turkey’s current political and economic climate, and security concerns, particularly in the southern part of the country near the Syrian border, where she comes from. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns relating to Turkey’s general political and economic climate, and security conditions, impact the population generally, rather than her personally.
127. Accordingly, the Tribunal is not satisfied 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 she will suffer significant harm: s.36(2)(aa). The Tribunal reaches the same conclusions in relation to the applicant husband and the applicant child, to the extent that there may be at least implied claims made on their behalf: s.36(2)(aa).
CONCLUSIONS
128. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
129. The Tribunal affirms the decision not to grant the applicants Protection visas.
James Silva
MemberATTACHMENT - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
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
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include parents and children.
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