1507889 (Refugee)

[2018] AATA 5797

1507889 (Refugee) [2018] AATA 5797 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507889

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Paul Millar

DATE:19 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2018 at 2:38pm

CATCHWORDS

REFUGEE – Protection visa – Turkey – race– Kurdish – no religion – delay and timing of the applicant’s protection visa application – fears harm while performing military service – claimed to be a conscientious objector – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Turkey, applied for the visa on 19 December 2013 and the delegate refused to grant the visa on 28 May 2015.[1] The applicant appeared before the Tribunal by way of video conference on 21 June 2018 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Turkish language.  The applicant was represented in relation to the review by his registered migration agent.  The representative attended the hearing.

   [1] The Tribunal’s finding on citizenship is based on copies of pages from the applicant’s Turkish passport which appear at folios 49-51 of the Department file.

   RELEVANT LAW

2. 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.

3. 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).

4. 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.

5. 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’).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the grounds that he is Kurdish, he will have to perform military service and he does not have a religion.[2]  What follows is a recitation of the evidence on these issues given by the applicant at the Tribunal hearing.

   [2] The applicant's evidence to the Department and the Tribunal comprises the contents of his protection visa application forms; his evidence at his interview with the delegate for which there is an audio recording and to which the Tribunal has listened; his statutory declaration made on 1 June 2018 and his evidence at the Tribunal hearing.  The Tribunal also had access to the various Department files that relate to student visa applications made by the [applicant].  The information in these files is not relevant to the grounds on which this review has been determined.

8. The applicant comes from Istanbul.  His father worked as [an occupation] but is now retired and receives a government pension. The applicant's sister attended and graduated from university but remains at home to care for the applicant’s mother.  In August 2011 the applicant's family moved to a different address where it was cheaper to live.  They had to pay for the cost of [a] surgery for the applicant's father and for the sister to attend university.  The applicant completed [school] education in July 2007.

9. The applicant said that when he was at school the Turkish students would want to fight him because he was Kurdish but he would always run away from them. On occasions the school would expel him and other Kurd students.  This would happen when fights occurred and the teachers would say that the applicant was wrong.  These problems occurred frequently during the three years the applicant attended high school.[3]  After leaving school the applicant did casual work [until] coming to Australia.  He worked for Kurdish people and, at this time, said that he was not engaged with Turks. 

   [3] In his statutory declaration made on 1 June 2018 the applicant said that often at school Turks would tell him to get out of the classroom and he made broad references to suffering harassment and bullying at school.

10. The applicant did not attend university in Turkey because, as a Kurdish man, he thought that he would receive abuse and his progress would be stopped.  The applicant said that at university one needed to be active in a political group and the applicant did not want to be involved in politics. He said that at the university, at that time, there was violence going on.  This was because the different groups at university would get into fights.  He thought that if he did not join a group then they would try to force him to join.  Further in the hearing, the applicant said that he did enrol in an online university course which was in another city in Turkey. He did not actually begin the course.

11. When he was in high school the applicant first decided that he wanted to leave Turkey because he thought that he would be unable to continue to study. It was in this period after leaving school and doing casual jobs [that] the applicant researched going overseas and agents told him that he could work and study in Australia.  The applicant left Turkey in September 2009 and with the plan that he would stay in Australia permanently. When asked why he wanted to leave Turkey and not return there, he said that the main reason was the requirement to perform military service. He wanted to avoid having to do that. 

12. The Tribunal asked the applicant whether, when he left Turkey in September 2009, he thought that he would ever return there. In response, the applicant said ‘No’.  He said that he came to Australia to live and study, again mentioning having to perform military service.  In September 2011 the applicant returned to Turkey.  He returned to Turkey because he was missing his family and wanted to visit them.  His father had undergone [a] surgery and was not well.  When asked why he did not return to Turkey at an earlier time, the applicant said that he was in a break in his studies and he knew that in the following year he would be called up to perform military service.

13. He understood that if he went back in September 2011, [the] authorities would not show interest in him in terms of him performing military service.  He based this understanding on research he had done and on which he formed the view that only when a person is [age] would the authorities then apprehend them to perform military service. This was research he did over the Internet. In addition, he said that his father also thought that if he was only [age] the authorities would not apprehend him.

14. On return to Turkey in September 2011, at the airport, officials questioned the applicant as to where he was and when he would return to Turkey to live. The applicant told the officials that he would finish his studies in Australia and then return to Turkey. The officials, in response, told him to return to Turkey when his studies finished.  In October 2011 the applicant came back to Australia and resumed his studies.

15. The Tribunal asked the applicant why he applied for protection in late 2013 and not before that time.  In response, the applicant said that when he extended his visa for study he felt safe.  Also, he was alone in Australia and did not know much. He searched for options and found the opportunity of applying for a protection visa.  He then consulted a lawyer who told him to do just that and, shortly after, he applied for protection.

16. The applicant said that he did not apply for protection before December 2013 because he had a student visa and he thought that he was safe here.  His student visa was about to expire in 2013 and he then started making inquiries about other visas.  In addition, he could no longer afford the fees to undertake study. He also said that, at this time in 2013, apart from being unable to afford the fees, another reason he did not try to renew his student visa and instead explore other options was that the student visa only enabled him to be here temporarily. The lawyer he consulted told him that and he wanted to be here permanently so as to avoid military service in Turkey.[4]

    [4] These explanations for the delay on the applicant’s part in applying for protection are all broadly similar to those he advances at his interview with the delegate and in his statutory declaration made on 1 June 2018. 

17. When asked if his family had given him news that the authorities had come to them to have him perform military service, the applicant said that nobody had approached them about that.  The Tribunal asked the applicant why he did not want to perform military service.  In response, the applicant said that he was a Kurd.  He said people of his ethnicity were treated badly in the military. He held a conscientious objection.  He was against war and violence.  He did not want to kill anybody and he did not want to die.  He said that in the military they cause difficulties for Kurds as they see them as members of the PKK.  They suffer discrimination, get punished, as well as tortured. He heard of one Kurd getting bashed for singing a Kurdish song and the Turkish soldiers are racist. 

18. When asked what else he understood happened to the Kurdish men who performed military service, the applicant said that they got beaten for no reason and they are put in jail for no reason. They would kill them and just say that they were normal casualties of battle. He said that he had read this and he had also heard this from people before he went to Australia in September 2009.  He said that Kurds defend their rights and they want to speak their own language but he did not speak Kurdish.  He was afraid that the Turkish soldiers could talk to him so badly that he could die. He had heard of Kurdish soldiers committing suicide for that reason.

19. In addition, he was afraid that he could be sent to the south-east of Turkey where there was conflict and where he could be expected to kill people.  When asked how he would be put in that position, the applicant said that it would be as a result of training and he would have to fire bullets.  When asked why he had a problem with doing that in that situation, the applicant said that he did not want to harm anybody, he was against killing people and as an educated person he could only hold a pen and not a gun.

20. He said that he knew that the PKK and the Turkish army were engaged in conflict. When asked what his view about that conflict was, he said that he was against war and did not want anybody to die. He did not support the PKK.  When asked how he felt about defending Turkey, the applicant said that in that situation he would be somebody behind the front lines helping people affected by the conflict.  If someone attacked him he would defend himself but not by force and try to neutralise the situation through dialogue.

21. When asked why violence was not appropriate in that situation, the applicant said that violence could solve some problems but he would not use it.  When asked what problems violence would solve, the applicant then said that violence would not solve anything but wars were a reality. The Tribunal asked the applicant whether, if another country attacked Turkey, he would refuse to defend his country.  In response, the applicant said that if that occurred there are people who get injured and need help and that is what he would do.

22. The Tribunal asked the applicant what he was afraid would happen to him if he returned to Turkey.  In response, the applicant said that as soon as he arrives at the airport he will be questioned and detained.  The authorities will send him to do military service by force.  The Tribunal asked the applicant whether he could pay money to avoid military service.  In response, the applicant said that that option was only available for a short time when the government was trying to get money to fund the military. It was only available for a month and the age limit was 28. There were also criteria attached to that option which were the age limit, paying the amount required and also having tertiary qualifications.[5]

    [5] The applicant advanced the very same grounds for not wanting to do military service and for fearing harm if he performed military service, in his protection visa application, in his statutory declaration of 1 June 2018 and at his interview with the delegate.

23. The Tribunal asked the applicant whether there was any other reason he did not want to return to Turkey.  The applicant said that he felt that he could not be himself in Turkey. He said that this was because he did not want to believe in Islam.  He said that he was not a Muslim.  He said that he had never belonged to a religion because his family themselves did not have a religion. He believed in God but he did not have any other faith or religion beyond that.  The applicant did not ever get forced to attend a mosque at high school.

    Assessment of whether the applicant holds a well-founded fear of persecution based on a convention ground

24. The applicant fears harm in Turkey on the grounds that he is Kurdish, that he will be made to perform military service and that he does not follow a religion.  In assessing the risk of the applicant suffering serious harm on these grounds the Tribunal has taken into consideration the significant delay on the applicant’s part in applying for protection.  To the Tribunal, the applicant said that as early as 2009 he had wanted to leave Turkey because he knew he would have to perform military service at some stage and he believed he would suffer serious harm in doing so because he is Kurdish.  He also claimed that, at that time, he would not want to perform military service because he was opposed to violence.

25. If that was genuinely the case and if, in addition, the applicant fears serious harm on the ground that he does not follow a religion, the Tribunal could reasonably expect that the applicant would apply for protection at the earliest available opportunity to be able to remain in Australia and not return to Turkey where he could face the harm he claims to fear.  It was clear from the applicant’s evidence that that it was only when his student visa expired in 2013 that he then took steps to find out how he could remain in Australia permanently to avoid the harm he claims to fear in Turkey.

26. The Tribunal does not accept that an applicant for protection genuinely in fear of harm would be content to remain in Australia as the holder of a temporary visa for a number of years and not take steps as soon as possible after arrival in Australia to find out how to remain here permanently to avoid being sent back to the home country and face serious harm.  The Tribunal put this to the applicant at the hearing and he repeated the claims he had earlier made in his evidence on this issue.  In this respect, he referred to being content to pursue study; not knowing who to speak to for advice and the schools he attended in Australia advising him the student visa was his only choice.  In submissions of 3 July 2008, the representative advanced the same reasons for the delay on the part of the applicant in applying for protection. 

27. The Tribunal is not persuaded that any of these explanations can excuse the delay in question for someone in the applicant’s claimed circumstances.  The Tribunal does not believe that somebody in the applicant’s claimed circumstances in genuine fear of harm would delay applying for protection for any of those reasons.  Accordingly, the Tribunal finds that the applicant does not genuinely fear harm in Turkey.  Consequently, this leads the Tribunal to find that the applicant does not hold any conscientious objection to military service and this is not the true reason for him wanting to avoid performing military service. 

28. If the applicant had convictions such that military service was abhorrent to his values or convictions, he would have applied for protection on that ground much earlier than he did. Similarly, if the applicant found intolerable living in Turkey while not following a particular religion (yet still believing in a theistic God) the Tribunal considers that he would have applied for protection on that ground much earlier than he did.  The Tribunal is willing to accept that the applicant does not follow a particular religion but does not accept that he genuinely fears harm on that ground.

29. With respect to the risk of the applicant suffering serious harm on the basis of being Kurdish, DFAT states that there is a moderate level of official discrimination against Kurds even though they can access government health and education services and, generally, secure employment.[6]  In terms of societal discrimination, DFAT states:

    “Societal discrimination against Kurds is partly influenced by the changing nature of Government-PKK peace talks. Given the resumption of hostilities, societal attitudes towards Kurds are currently less positive. Some non-Kurds believe that all Kurds are associated with the PKK, despite the fact that many Kurds are supporters of the current Government and want the conflict to end. On this basis, DFAT assesses that there is, at present, a moderate level of societal discrimination against Kurds. However, this varies across Turkey depending on proximity to the conflict or the number of Kurds present in a particular location.”[7]

    [6] See DFAT Country Information Report Turkey, 4.17 and 4.18:

    “4.17   …….   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.

    4.18 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 …...

    Similar positions are taken on these issues in DFAT Country Information Report Turkey, 9 October 2018 at 3.2 – 3.10.

    [7] See DFAT Country Information Report Turkey, 4.20.  See also DFAT Country Information Report Turkey, 9 October 2018 at 3.10 in which a similar position is expressed.

1. More recent country information indicates those involved with Kurdish groups in Turkey are at risk of arrest and detention including human rights defenders, journalists and those publicly voicing dissenting views on Kurdish issues.[8]  The applicant does not belong to a Kurdish political group in Turkey and has not engaged in political or public activities in Turkey in which he has expressed dissent against the government.  The only harm encountered by the applicant in Turkey comprises some harassment at school but that does not amount to persecution.  The Tribunal infers from this country information that the risk of the applicant suffering serious harm because he is Kurdish is remote.

   [8] See Country of Origin Information Services Section (COISS), Department of Home Affairs, Turkey Treatment of “Gulenists” and Kurdish Groups, 25 May 2018, 20-21, which provides:

   “Kurds and members of Kurdish opposition-groups have been arrested since the attempted coup in July 2016. Turkish human rights monitoring group, iHop reports that 31 per cent of all people arrested in government operations under the state of emergency in place since October 2016, were allegedly associated with Kurdish or leftist groups.

   According to the HDP, between July 2015 and July 2017, 10,639 HDP executives, members and supporters were detained with 2,983 arrested, including deputies, district chairs and members. Since the attempted coup, 6,380 were detained and 1,570 were arrested. By contrast, the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression reports that approximately 2,000 HDP members have been detained since the attempted coup. In March 2017, the DBP reported that since July 2015, 3,547 of its party officials had been placed in pretrial detention.

   In November 2016, the two co-leaders of the HDP, Selahattin Demirtas and Feign Yuksekdag, were arrested along with 13 other HDP members of parliament (MPs) on terrorism-related charges. In May 2016, the co-leader of the DBP, Kamuran Yuksek, was arrested on terrorism charges. He was convicted and sentenced to nine years’ imprisonment in absentia in March 2017. In April 2018, more than 40 HDP members were arrested at an election meeting in Istanbul. During 2017, HDP members were also prosecuted for ‘insulting the president’ and several HDP MPs were expelled from parliament for failing to attend parliament and for alleged links with the PKK.

   More broadly, those who voice dissenting views on Kurdish issues, whether they be Kurdish or not themselves, have been arrested. For example, many human rights defenders, journalists and people who posted comments on social media opposing the government’s recent military offensive in Afrin, Syria were arrested and labelled by President Erdogan as ‘lovers of terrorism.”

   See also DFAT Country Information Report Turkey, 9 October 2018, where a similar position is expressed at 3.7, 3.43 – 3.48, 3.49 – 3.73.

2. At the hearing, the Tribunal discussed the country information with the applicant and put to him that the risk of him suffering serious harm in Turkey because he is Kurdish is remote.  In response, the applicant claimed that he could not attend university in Turkey.  Even if that was the case, the inability to pursue a tertiary education does not amount to serious harm.  While the applicant claims that he could not attend university he did nevertheless enrol in an online tertiary education course.  When the applicant completed school he was able to find employment.  Although country information indicates that Kurdish people suffer discrimination from both the government and society, country information does not go so far as to demonstrate that Kurdish people are simply denied employment on the basis of their ethnicity. 

3. In his statutory declaration of 1 June 2018 the applicant also claimed that simply being Kurdish was sufficient for one to be suspected of supporting the PKK and, on that basis, being harmed by the government.  The Tribunal rejects that submission as the country information relied on in this decision contains no such assertion.  As the Tribunal understands it, those suspected of supporting the PKK are those who actually belong to the group, those who advocate for it or those who belong to other similar types of groups and the applicant is not such a person.  In his statutory declaration, the applicant claimed that his father faced discrimination and harassment on the basis of his ethnicity when he worked in a [workplace]. Whether or not that is so, the Tribunal is satisfied that the applicant did not suffer serious harm in Turkey.

4. In submissions of 14 June and 3 July 2018, the representative put forward country information said to demonstrate that people who are Kurdish suffer serious harm on the basis of their ethnicity. The Tribunal notes that a good deal of this country information is between seven to 15 years old and therefore issued too long ago to be of any use in assessing the risk of the applicant suffering serious harm in Turkey.  The fundamental assertion based on this information is that Kurdish people suffer discrimination in Turkey.  The Tribunal accepts that assertion but the country information relied on this decision indicates that this does not equate with a real chance of suffering serious harm solely on the basis of Kurdish ethnicity.

5. According to available country information, men aged from 20 to 41 are eligible for conscription and must undertake military service.[9]  Although, in its country information report on Turkey, DFAT discusses the risk of harm to Kurds and although this report discusses requirements to perform military service, DFAT makes no mention of Kurds suffering harm while performing military service on any ground, including on the basis of ethnicity.[10] The Tribunal considers that if there is a real chance that the applicant will suffer serious harm performing military service on the basis that he is Kurdish this would be mentioned by DFAT and would also be mentioned in recent country information.

   [9] DFAT Country Information Report Turkey, 4.113; DFAT Country Information Report Turkey, 9 October 2018, at 3.92.

   [10] Similarly, in DFAT Country Information Report Turkey, 9 October 2018, there is no mention of conscripts suffering harm based on being a Kurd.

6. The Tribunal conducted searches of recent country information and could find no reports of conscripts being harmed while performing military service based on their ethnicity.  Further, country information indicates that the Turkish Armed Forces are made up of hundreds of thousands of personnel and included in that number are hundreds of thousands of male conscripts.[11]  Further, country information indicates that those members of the military most likely to be sent into dangerous combat environments are ‘contractual soldiers’ who have undergone extensive training necessary for dangerous positions as opposed to conscripts who serve in the military only temporarily.[12]  Accordingly, the Tribunal considers that the risk of the applicant suffering serious harm (on any ground) in performing military service is remote.

   [11] See United Kingdom Home Office Country Information and Guidance Turkey: Military Service March 2016 at 4.3.1 and 4.3.2.

   [12] See Department of Immigration and Border Protection, CX6A26A6E8634: ‘Professionalisation of the TSK: Contractual Soldiering in Turkey’, The NATO Association of Canada, 21 May 2016.

7. At the hearing, the Tribunal discussed this country information with the applicant and put to him that the risk of him suffering serious harm in military service was remote.  In response, the applicant said that as a conscript he would be sent to a combat area and become a casualty. He said that conscripts would be told to shoot civilians. He said this was not reported in the media.  The applicant made similar claims in his statutory declaration of 1 June 2018 and to the delegate at the interview. 

8. Related to this claim, in his protection visa application and in his declaration, the applicant made broad claims that conscripts suffer harm in military service.  In submissions of 14 June 2018 the representative submitted that conscripts suffer harm and some commit suicide.  These submissions refer to country information issued in 2014 on that matter.  The Tribunal is willing to accept that there have been reports of instances of conscripts suffering harm in military service with some committing suicide. However, in view of the country information discussed above, given the sheer numbers of conscripts in the Turkish military, the risk of the applicant suffering serious harm as a conscript is remote.  While he fears being sent to a combat environment, country information indicates that it is contractual soldiers who perform that work not conscripts.

9. With respect to Kurdish conscripts suffering harm in military service, in submissions of 14 June and 3 July 2018, the representative referred to country information asserting that this demonstrated the applicant will suffer serious harm in military service because he is Kurdish.  The Tribunal notes that all of this information is dated, some sources issued as long ago as 1999.  At best it describes some instances of maltreatment but falls well short of demonstrating a real chance of serious harm to the applicant in military service because he is Kurdish.  Similarly, the delegate refers to country information in the decision to refuse the application containing the assertion that Kurds suffer discrimination in military service but the Tribunal considers that information to also be out of date.  The applicant told the delegate in the interview that a Kurdish soldier committed suicide in military service but, as the delegate stated in the decision, country information did not confirm this person was Kurdish or the reasons for his death.

10. While the applicant asserted that harm to conscripts in military service is not reported in the media, the Tribunal remains of the view that if there is a real chance of a Kurdish conscript suffering serious harm in military service this would be made clear and demonstrated in available up-to-date country information and mentioned by DFAT in its assessment of Turkey.  However, no such mention of this issue is made by DFAT and the Tribunal remains of the view that the risk of the applicant suffering serious harm in military service because he is Kurdish is remote.

11. Both the applicant and the representative also made claims to the effect that the applicant would be arrested on return to Turkey and detained and beaten for being a draft evader.  The Tribunal notes that at the hearing the applicant said that nobody had gone to his family to enquire with them as to his whereabouts and to have him perform military service. The applicant claimed that letters relating to military service would have gone to a previous address where the family lived.[13]  The Tribunal considers that if the applicant was wanted for not, so far, presenting himself for military service the authorities would have approached his family about that wherever they are living.

    [13] The applicant provided a rental contract document related to his parents’ address (folios 63 – 65 of the Tribunal file).

12. Accordingly, the Tribunal does not accept that this applicant will be arrested, detained and maltreated on return to Turkey for not having performed military service.  Rather, the Tribunal finds that on return to Turkey the applicant will be required to perform military service, a requirement that applies to the general male population who reach a certain age.  Having to perform military service therefore does not amount to serious harm.  For the reasons already given, the Tribunal finds that the risk of the applicant suffering serious harm while performing military service is remote.

13. The applicant and the representative in written submissions made claims about conscientious objectors being harmed in Turkey.  For the reasons given above, the Tribunal does not believe the applicant is a conscientious objector and so those submissions and claims are rejected.  In submissions dated 14 June 2018 the representative submitted that the applicant belonged to particular social groups made up of conscientious objectors, draft evaders and Kurdish conscripts.  The Tribunal does not accept that the applicant is a conscientious objector[14] and for the reasons given above finds that the risk of the applicant suffering serious harm on the basis that he is Kurdish and has to perform military service is remote.  Accordingly there is no need for the Tribunal to determine whether or not these claimed particular social groups exist.

    [14] The Tribunal therefore disbelieves an assertion that he is a conscientious objector made in a letter dated 21 August 2017 by a person who trained the applicant in Australia to obtain a pilot’s licence (see folio 66 of the Tribunal file). 

14. The Tribunal is willing to accept that the applicant does not follow a particular religion but the risk of him suffering serious harm on that ground is remote.  The applicant did not suffer serious harm on this ground when he lived in Turkey.  The only instance of harm was an occasion at school, according to his evidence to the delegate, when he became involved in an argument because he was not fasting for Ramadan.  His protection claims in this respect are really that he would be afraid to reveal to others that he does not follow Islam.  In the view of the Tribunal, if the applicant genuinely feared harm on this ground he would have applied for protection much earlier than he did.

15. The Tribunal finds that the applicant will be able to resume his life in Turkey without following a particular religion and will not have to modify his conduct in any way to avoid serious harm on that basis. In submissions of 14 June 2018, the representative provided country information about harm to Christians and religious minorities by the Turkish government but the applicant said that he does not follow a religion and so this does not apply to him.

16. The applicant also claimed to the Tribunal that he would suffer serious harm while performing military service because he does not follow a religion.  However, in its assessment of Turkey, DFAT makes no mention of people performing military service suffering serious harm because of their religion or because they do not follow one.  Again, if conscripts suffer serious harm on those grounds then the Tribunal can reasonably expect that this would be well reported in available up-to-date country information. The Tribunal considers that it is not. Accordingly, the risk of the applicant suffering serious harm in military service because he does not follow a religion is remote.

17. Following the conclusion of the Tribunal hearing, the Tribunal provided to the applicant the DFAT Country Information Report Turkey 9 October 2018 for comment.  By letter dated 18 December 2018 the representative made submissions in response. The representative made submissions about the ability of Turkish nationals to pay money to avoid having to perform military service.  The Tribunal has considered this information but, in reaching its finding that the risk of the applicant suffering serious harm because he has to perform military service is remote, the Tribunal does not rely on any provision in Turkish law allowing for nationals to avoid that obligation. 

18. The representative also submitted that in this recent report on Turkey, DFAT refers to draft evasion and desertion being prosecuted in Turkey.  The Tribunal, for the reasons given above, finds that on return to Turkey the authorities will require the applicant to perform military service but does not accept that he will be arrested, detained and maltreated for not having reported himself this far.  For the reasons given above, the Tribunal finds that the risk of the applicant suffering serious harm because he has to perform military service is remote.

19. The representative then made submissions with respect to the applicant suffering serious harm because he is Kurdish.  The representative referred to that part of the recent DFAT report on Turkey relating to the historical suppression of Kurdish national identity.  The representative also referred to statements in that report about the government subsequently winding back restrictions on the expression of minority identity with most restrictions now officially revoked. The Tribunal rejects assertions made in a source of country information put forward by the representative about a systematic denial of the Kurdish presence and identity in Turkey.  The information provided in the DFAT report indicates that the Kurdish language is commonly used throughout Turkey. It is those advocating for Kurdish causes who may be at risk in this respect but the applicant is not such a person.

20. The representative then noted comments in the DFAT report that Kurds still face official and societal discrimination, the extent and form of the same depending on geographical location and personal circumstance.  In this respect, DFAT specifically refers to those residing in the south-east of the country where the military conflict between the PKK and Turkish government takes place, Kurdish women and those active in Kurdish political or civil society organisations. The applicant does not come from the south-east of Turkey and is not and never has been politically active.

21. The representative then referred to other country information asserting that Kurds may feel fearful about disclosing their Kurdish identity but the Tribunal considers that if the applicant genuinely feared serious harm on this ground (for example that he would have to modify his conduct to avoid serious harm) he would have applied for protection long before he did.  The Tribunal is not satisfied that any reluctance to disclose his Kurdish identity equates with the applicant suffering serious harm.  The applicant did not claim to have hidden his Kurdish identity when he lived in Turkey.

22. This country information refers to isolated incidents of attacks on Kurds including in Istanbul but it is also clear from the DFAT report and country information provided by the representative that those Kurds most at risk of violence are those who live in the south-east of the country where the military conflict takes place. The applicant does not come from that part of Turkey. The representative then asserted that all Kurds are at risk of violence wherever they live.  However, the country information put forward and also that contained in the recent DFAT makes clear that with respect to Kurds who do not live in the south-east of the country, those at risk on a level that equates with a real chance of serious harm, are those involved in political activism or civil society groups representing Kurdish causes.  The applicant is not such a person.

23. For the reasons given above, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Turkey.  He does not hold a well-founded fear of persecution based on any convention ground.  With respect to the complementary protection criterion, for the same reasons that the Tribunal finds that there is not a real chance that the applicant will suffer serious harm, the Tribunal also finds that there is not a real risk that the applicant will suffer significant harm in Turkey.  Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Turkey, there is a real risk that he will suffer significant harm.[15]

    [15] The delegate issued a notice restricting disclosure of certain information on the Department file.  The Tribunal considers that this information was neither adverse nor related to the grounds on which the applicant applies for protection and it is not relevant to the grounds on which this review has been determined. Accordingly, there was no need for the Tribunal to disclose that information to the applicant.

    CONCLUSIONS

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Paul Millar
   Member