1509152 (Refugee)

[2017] AATA 1675

1509152 (Refugee) [2017] AATA 1675 (21 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509152

COUNTRY OF REFERENCE:                  Turkey

MEMBER:James Silva

DATE:21 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2017 at 3:12pm

CATCHWORDS

Refugee – Protection Visa – Turkey – Religion – Alevi Kurd – Political opinion – Pro-kurdish political affiliation – Credibility Issues

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91R, 91S, 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. The applicant is a man in his late [age] from Gaziantep, Turkey.

2. The applicant most recently arrived in Australia [in] August 2013 as the holder of a Visitor visa. He lodged a Protection (Class XA) visa [in] October 2013. [In] June 2015, a delegate of the Minister for Immigration and Border Protection refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 7 April 2017.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant is an Alevi Kurd, although he is not religious and does not speak Kurdish. He claims that he actively supported the pro-Kurdish opposition in Turkey, and was subject to police harassment and assaults; an attempt to recruit him as an informant; and menacing enquiries about his whereabouts. The Tribunal accepts that he favours these parties, but found his claims about political activism and past harm to lack credibility. It concludes that he does not have a well-founded fear of persecution for a Convention reason, and that he is not eligible for complementary protection.

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant’s claims to be an Alevi Kurd, and a member/supporter of the main pro-Kurdish opposition party (BDP at the time of his last departure from Turkey). He claims to have suffered discrimination and mistreatment as an Alevi and a Kurd. He also claims that the Turkish police abducted, assaulted and threatened him on several occasions, including trying to recruit him as an informant. Since his arrival in Australia, they have come looking for him at his father’s home. The applicant claims to fear persecution or significant harm as an Alevi Kurd, and due to his political opinion. He claims that Turkey’s recent political unrest, and the influx into Turkey of Syrian refugees have heightened the risks to Alevi Kurds; and that the authorities will not protect him due to his race, religion and political opinion.

   Background

8. The applicant is [an age] year old man from the [district] in Sahinbey, Gaziantep. He has never married or been in a de facto relationship. He claims to be an Alevi Kurd, and to have Turkish as his only language.

9. The applicant lived in Sahinbey, Gaziantep, at one address up to August 2011, and after that in a different apartment in the same city. He was in Australia for much of 2009, visiting relatives (see below).

10. The applicant attended school for about [number of] years. He completed military service, from 1998 to 1999, and was based in Izmir during this period. From 2000 to 2006 he [worked]. From 2006 to 2009, he was the owner/operator of a small [shop] in a market. He visited Australia twice in 2009, and claims to have been the carer for his sister’s children during his second stay in Australia (June to December 2009). On his return to Turkey in late 2009, he undertook casual work in various [sectors].

11. The applicant claims that his father is from [(Gaziantep)] and his mother from [(Kahramankaras)]. He has a sister in [Australia]; the applicant has referred to his brother-in-law who influenced him to take a greater interest in Turkish (particularly Kurdish) politics. His parents [and] [brothers] continue to live in Turkey. The applicant said that he is in contact with his family in Turkey. However, he said that his parents are elderly, and he does not talk to them often, for fear of the Turkish authorities monitoring them. He said that his brothers are hesitant to give much information over the phone, and he is not sure what they are currently doing.    

12. The applicant currently holds a Turkish passport issued [in] 2013, valid for one year. He held a previous passport, but did not provide details on his protection visa application form. As noted in the delegate’s decision record, and discussed at hearing, the applicant first arrived in Australia in February 2009, on a Visitor visa, and stayed for six weeks. He returned to Australia in June 2009, also on a Visitor visa, and stayed for five months. The applicant most recently arrived in Australia [in] August 2013, holding a [Visitor] [visa].

    Evidence

13. The evidence before the Tribunal includes the following relevant material: -

    §  The protection visa application form, which has attached to it a partial photocopy of the applicant’s Turkish passport (biodata page), issued [in] May 2013, and his Turkish ID card, in Turkish with English translation.

    §  A statement of claims, handwritten in Turkish with an English translation.

    §  The applicant attended a Protection Visa interview (Department interview) [in] June 2014, an audio recording of which is on the Department file.

    §  The Protection Visa decision record (‘delegate’s decision’) [in] June 2015, a copy of which is on the Department file, and which the applicant also sent to the Tribunal together with his review application.

    §  The review application form, lodged on 23 October 2015.

    §  Pre-hearing submission dated 31 March 2017.

    §  Post-hearing submission dated 5 June 2017. Attached to this is a letter of support from [Mr A], [in] May 2017. The letter bears the stamp ‘[Association 1]’, and is a general letter of recommendation about the applicant’s positive contribution to the local Kurdish community.

14. The applicant appeared before the Tribunal on 7 April 2017, to give evidence and present arguments. The hearing was conducted via video link between the Tribunal’s [state offices]. An accredited interpreter in the Turkish and English languages assisted. The applicant’s representative, a registered migration agent, was present. The applicant did not request the Tribunal to take evidence from any witnesses.

15. The Tribunal consulted a range of country information sources, including those mentioned in the applicant’s submissions and at hearing. Of particular relevance is the Department of Foreign Affairs and Trade’s Country Information Report, 5 September 2016.

    Receiving country

16. The applicant claims to be a Turkish national. He speaks Turkish and has provided his current Turkish passport. He has shown a thorough familiarity with that country. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Turkish national. Turkey is therefore the country of reference when assessing the applicant’s refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

17. 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.

18. The applicant’s evidence throughout the hearing was vague and changeable. On several occasions, when the Tribunal sought to clarify inconsistencies in his evidence over time (in particular, between his written statement of claims and his oral evidence), the applicant said that he could not remember details. In relation to omissions, he said that he had been only able to recall about five or ten per cent of what had happened to him. He has a representative in this matter, and the Tribunal is satisfied that the applicant has had an opportunity, at hearing, through his representative and in his post-hearing submission, to present all his claims and evidence.

19. The Tribunal formed the view that the applicant’s account of his and his family’s circumstances was selective, and skewed to bolster his protection claims. For instance, he said that the reason he closed his shop in 2009 was because of police harassment; and that the reason he is in infrequent contact with his family now is because they fear being monitored. In these and other instances, the Tribunal is concerned that the applicant has misconstrued and/or exaggerated his situation, and tried to link them, awkwardly, with his protection claims.

20. Finally, the Tribunal also found much of the applicant’s claims to lack supporting detail and corroboration. In several instances, the applicant made a particular claim, but was unable to provide context or additional information. In relation to supporting evidence, the Tribunal appreciates that asylum seekers are often not in a position to corroborate their claims with supporting evidence. In the present case, however, the applicant did not appear to have even turned his mind to what material might be available. For instance, he claimed that his [brother-in-law], with whom he lives in [Australia], is an Alevi Kurd from Gaziantep, has obtained refugee status in Australia, and is the person who inspired him (the applicant) to become politically active when he was in Australia during 2009. Yet the applicant stated almost casually that he did not think it was necessary for [his brother-in-law] to appear as a witness at his hearing. Similarly, the Tribunal’s enquiries about whether the applicant might have photographs or other documents to support his claimed political activities in Turkey, did not generate any real interest or engagement on his part.

21. The Tribunal has had regard to the applicant’s limited formal education, and the possibility that he does not have strong presentational skills, for instance, when giving evidence via video at a hearing. It has received no medical evidence to suggest that he has any health problems that might impair his ability to recall and express information. Neither the applicant nor his representative drew to the Tribunal’s attention any relevant factors.

    Psychological issues

22. The applicant claimed that in late 2011, the Turkish authorities caught him trying to depart for [Country 1] on a false Turkish passport. They ‘tortured’ him for days, and released him after a week. The applicant claimed to have needed psychological help after that. At the hearing, when asked about any psychological harm or treatment in Turkey, the applicant replied obliquely that he is an introvert, and he (and others) felt under pressure. In response to follow-up questions, he said that his [brother-in-law] took him to a psychologist a few times, but he is not currently receiving treatment. The Tribunal assesses below the applicant’s claims that he was subject to torture or related mistreatment. Meanwhile, on the limited available information, the Tribunal is not satisfied that the applicant has any psychological issues that affect his competence to give evidence, or that are material in assessing his past experiences in Turkey or his future prospects if he returns.

    The applicant’s travel and his need for protection

23. The applicant’s two visits to Australia in 2009 – one of about six weeks, and another of some five months – raise questions about the truthfulness of his claims and his need for protection. In particular, they cast doubt on his claims to have experienced discrimination and harassment as an Alevi Kurd, and to have had an adverse political profile at that time. At hearing, the applicant explained that the problems were not so serious at that time; it was only after his return to Turkey in late 2009 that he became more politically active. He also commented that he returned to Turkey because he felt that he still had things to do there, and that he should stay with his family. The Tribunal considers that, even allowing for family priorities, the applicant’s willingness to return to Turkey in 2009 raises doubts, at least about his claimed experiences in Turkey up to that time.

24. The applicant’s travel arrangements in 2013 and his delay in seeking protection after his arrival in Australia are also problematic.

    §  The applicant obtained his current Turkish passport [in] 2013, and was granted an Australian visa [in] June 2013. As noted in the delegate’s decision record and discussed at hearing, he did not arrive in Australia until some six weeks later. The applicant explained at hearing that, following on from his previous experiences (his claimed past arrest for trying to leave Turkey illegally in 2011, and his alleged encounter with Turkish intelligence officials in May 2013), he was afraid of being caught as he departed the country. The applicant provided no insights as to how he overcame these fears in August 2013, or what alternatives he considered in order to reduce the risk of being detected (such as considering overland travel).

    §  Even after his arrival in Australia, the applicant waited until [October] 2013 before lodging a protection visa application. The delay of almost two months raises further doubts about his need for protection.

    -   At hearing, the applicant said that he had no idea about seeking protection. The Tribunal does not consider this a credible explanation. The applicant told the Tribunal that he has relatives in Australia; that he lives with his brother-in-law, with whom he is close (his brother-in-law allegedly encouraged him to be more active in Turkish politics); and that his brother-in-law was given refugee status in Australia. There is no apparent reason why the applicant could not have at least have made enquiries or sought assistance from relatives or friends if he was in need of protection.

    -   The applicant also gave a second reason for the delay. He said that about two weeks after he arrived in Australia, his father telephoned to say that the police had come looking for him. This news was, he said, a turning point. In the Tribunal’s view, it is difficult to believe the applicant had the claimed experiences between 2009 and 2013 (some of which were individually, or at least cumulatively, significant), and yet waited for this news before deciding firmly to seek protection.

25. In sum, the Tribunal has broad concerns about the credibility of the applicant’s protection claims, and his need for protection in Australia. Its detailed assessment of his claims and evidence follows below.

    The applicant’s identity as an Alevi Kurd (religion, race)

26. The applicant has consistently claimed to be of Kurdish ethnicity and of the Alevi faith, and the Tribunal notes that the delegate accepted these claims more or less as presented.

27. The applicant’s place of origin - Sahinbey, an urban district of Gaziantep, in south-eastern Turkey – lends credibility to his claim to be Kurdish, and an Alevi, although in the Tribunal’s view, it is not conclusive. As discussed at hearing, south-eastern Turkey is a historical homeland for the Kurdish people, and is said to be predominantly Kurdish. That said, Gaziantep itself is regarded by many as a Turkish city, or at least an ethnically mixed one, albeit one with a large Kurdish workforce.[1] More recently, the influx of Syrian refugees has seen a marked rise in the number of Arabs, and local concerns that this will have a lasting effect on the ethnic composition of the south east,[2] and Gaziantep.[3]  Country information indicates that Turkey’s demography is complex. In the Tribunal’s view, the applicant’s origins in Gaziantep appear consistent with his claim to be an Alevi Kurd, but are not a reliable indicator.

    [1] See, for instance: Christopher Phillips: The Battle for Syria, August 6, 2012: ; Daily News: Why Kurdish politicians should start learning the language of development, April 21, 2017: Al-Monitor, Syrians shifting demographics in Turkey’s Kurdish regions, 10 August 2015;  AL-Monitor: Is Turkey hearing toward civil war?: September 2015,

    [3] Aljazeera: The changing face of Gaziantep, 2 October 2016,  >

    The applicant gave evidence about his family’s background. He said that his brothers were born in Gaziantep. His father is [from] a small town on the border with Syria, now part of Gaziantep city. The applicant said that his paternal grandparents came to Gaziantep from another area, but he could not recall where. The applicant said that his mother is from [a town], in Kahramankaras Province (some [distance]km north of Sahinbey). The Tribunal noted that the [town] area is a largely Alevi area, although ethnically diverse, with individual villages identified as being Sunni Turkish, Alevi Turkish, Circassian, Arab and Sunni Kurdish.  The applicant could not recall where his mother’s ancestors are from. He ventured that they might have come from [another town in Turkey]. Overall, the Tribunal considers the applicant’s evidence to be broadly consistent with his claim, but it was struck by his vagueness and evident lack of enquiry.

28. There is little evidence to support the applicant’s claim that he is Kurdish and an Alevi, or that he is perceived as such:

    §  The applicant does not speak Kurdish, even though Gaziantep has a mixed population. He said that his parents speak only a little of the language. He said that ‘they’ (by implication, the Turkish authorities and society in general) do not want Kurds to use their language. He suggested that, while Kurds with close ties to the eastern parts of Turkey have tended to retain their languages, his family have more or less lost it.

    §  The Tribunal explored whether there was other evidence, from Turkey or Australia, to support his claim to be Kurdish and an Alevi, for instance, evidence of him celebrating Newroz or attending local cultural or religious events. Again, this yielded little. The applicant said that he used to use social media, but he considered it risky to publish anything about ‘the Kurdish movement’ (ie. the political or cultural movement). He did not comment on whether there might be any other indicators that he identifies as a Kurd, or Alevi Kurd.   

    §  The applicant commented that his brother-in-law is Kurdish, and this supports his claims, as there is little intermarriage between the Kurdish and Turkish communities.

    §  The applicant provided some information about the Alevi faith at the Department interview, such as its basic teachings and practices; although the Tribunal notes that this information is widely available. At the Tribunal hearing, the applicant said that his parents are Alevi and he is (nominally), but in reality he does not believe in religion.

29. The applicant provided a single letter from a [Mr A], written on plain paper with a wet stamp indicating ‘[Association 1].’ The letter describes the organisation’s support for the Kurdish community in [State 1], and states that the applicant ‘has been an active member of [the] community’, and that he has ‘influenced youth Kurdish Australian [sic]’. It states that the applicant is a ‘vital member to our Kurdish community’. The Tribunal infers from this that the Kurdish community in [State 1] acknowledges the applicant as a member of their ethnic group and community.

1. The applicant also made claims of his experiences as an Alevi Kurd, namely discrimination and harassment as a member of that minority. The Tribunal examines these claims below. Although these claims appear to be written from the perspective of an Alevi Kurd, in the Tribunal’s view, they are not of much probative value in determining the applicant’s ethnicity or religion.

2. The Tribunal accepts on the available evidence that the applicant is a Kurd and, at least nominally, an Alevi. It makes this finding with reservations, however. For instance, it considers it surprising that in an area of Turkey where there is a sizeable Kurdish population, the applicant appears to not even have a basic knowledge of or passive understanding of their language. While the Tribunal accepts that the Turkish authorities have suppressed the use of Kurdish, for instance in schools, it does not accept at face value that it has not been maintained within families or at street level. Furthermore, the applicant has provided little to indicate that he actually identifies as a Kurd and/or Alevi, or that he is perceived as such.

3. In light of these concerns, the Tribunal accepts that the applicant is nominally an Alevi Kurd, but it finds that, in practice, he and his family have mainly assimilated into the Turkish majority, and that he is secular in his outlook and practices.

   The applicant’s experiences in Turkey before 2009

   Experiences as an Alevi Kurd

4. The applicant presented some general claims about the discrimination and mistreatment of Alevi Kurds in Turkey, on both religious and ethnic grounds. The applicant’s statement is a broad amalgam of comments about general historical injustices, broad attitudes to Alevi Kurds, and, somewhat less clearly, the applicant’s and his family’s own claimed experiences. Similarly, these claims overlap to a large extent with the applicant’s political claims, which are considered below.

5. The applicant claimed, among other things, that:

   §  Alevi Kurds have been subject to massacres in the past. In 1978, for instance, the civilian fascists marked the homes of Kurds, and more than 100 people were killed in the ensuing massacre. Similarly, in Gaziantep, the applicant’s home was once marked with an ‘X’ painted on the door. 

   §  Kurds are not allowed to be educated in their own language, which caused him to feel aggrieved (especially after visiting Australia).

   §  Elders advised the applicant and his siblings not to disclose their Alevi identity. Alevis are labelled as infidels because they do not pray regularly or fast during Ramadan. Their temples do not have official status, but are merely called clubhouses.

   §  The police used to target him when he had a small shop at the market (mainly for political reasons, but also as an Alevi Kurd). Even after his return to Turkey in late 2009, he relied on the goodwill of another Alevi Kurd to find work in a [workplace].

   §  The applicant claimed that Kurdish people were subject to scrutiny, and in particular under pressure not to get involved in politics (due to their known pro-Kurdish, leftist inclinations).

6. The applicant alluded to persistent discrimination at the hearing. The Tribunal found his evidence vague and changeable. Furthermore, the Tribunal has concluded above that the applicant may be an Alevi Kurd, but that he (like other family members) is well-integrated into Turkish culture and society, and does not identify strongly as a Kurd or an Alevi.

7. The Tribunal accepts that the applicant may have faced some discrimination as an Alevi Kurd. However, it finds that he has exaggerated the frequency, nature and severity of any discrimination that he may have experienced as a (nominal) Alevi Kurd, having regard among other things to his vague evidence and his travel history. It does not accept that the applicant suffered discrimination involving serious harm amounting to persecution, or significant harm.

   Political interests

8. In his protection visa application, the applicant wrote that his family was always politically active. Even before his first trip to Australia, he was a member of the DTP - Democratic Society Party (Demokratik Toplum Partisi) - although he did not play an active role in the party.

9. At hearing, it was difficult to elicit any clear, consistent statement from the applicant about the nature and extent of his political activities prior to 2009. He initially stressed that the Turkish authorities were putting pressure on the Kurdish leftist parties to close. He named the succession of parties, and said that he was in contact with party elders and trying to learn what to do. However, he said that he was not a member of the DTP or any political party, and not actively involved in their activities.  

10. The applicant has demonstrated some familiarity with the Kurdish parties, but the Tribunal is concerned that he has provided vague, inconsistent and changeable evidence about his political profile and interests prior to 2009. The Tribunal accepts that the applicant leans towards pro-Kurdish leftist parties, but it does not accept that he has any attachment to or involvement with them before 2009, beyond a general preference.

    Police and other harassment

11. The applicant claims that, when he operated as a small [shopkeeper] (from 2006 to 2009), undercover police used to continuously harass him because of his support for the DTP. They used to detain him for no particular reason, and pressure him to sever his links with the party.

12. At hearing, the applicant confirmed that the police used to target him during this period, and take him to their office for questioning and ‘torture’. He said that they took him in some ten to fifteen times. They took him to the basement of the building, and subjected him to bashings, high noise levels and other forms of abuse. They pressured him to give up his political interests, and in the end, the applicant agreed to comply. Earlier in the hearing, the applicant also mentioned that the business itself had problems, as a group of people came and attacked it, damaging or destroying some of his wares.

13. The Tribunal queried why – if he had been subject to persistent discrimination as an Alevi Kurd, and subject to police harassment (including alleged ‘torture’ on more than ten occasions) – the applicant visited Australia twice in 2009, and then returned to Turkey without seeking protection. This was especially problematic since the applicant returned to the same location in Turkey, where the local police had allegedly singled him out. In response, the applicant said that he felt a strong attachment to his family and his home. He also implied that his problems were not so serious at that time.

    Findings

14. The Tribunal accepts that the applicant is a nominal Alevi, and of Kurdish background. It accepts that his family generally prefers leftist, pro-Kurdish parties. It accepts that the applicant supported the DTP prior to his first trip to Australia, in the sense that he favoured the party. It does not accept that he was a member, or had any other formal association with the party, actual or perceived. Nor does it accept that the applicant was motivated, by reason of his family background or his own political preferences, to engage in any political activities.

15. The Tribunal accepts that the applicant was aware of the historical background of Alevi Kurds in Turkey, and the lasting effects these have on their religious, cultural and political activities. However, the Tribunal does not accept that these general conditions had much practical effect on the applicant, and it does not accept that he personally experienced discrimination, harassment or any other mistreatment (including the recent claim of multiple, almost random, police bashings) that amounted to persecution or significant harm, at least before 2009.

16. The Tribunal finds that the applicant visited Australia in 2009 for personal and family reasons, and that he returned to his home area in Turkey because he did not have any concerns of future harm there (including for reasons of his religion, ethnicity or political opinion).

    Applicant’s experiences in Turkey after 2009

    Political interests in Australia during 2009

17. The applicant claimed that, while he was in Australia, his [brother-in-law] inspired him to become more politically aware. Also, the applicant came to appreciate in Australia the value of political freedom and human rights. This led him to question even more, on his return to Turkey, why Alevi Kurds were denied these rights.

18. At hearing, the applicant confirmed these claims. Asked about any political interests or activities while he was in Australia, he said that he cannot remember. The applicant said that his brother-in-law impressed on him that it was a good time to become politically active. As noted above, neither the applicant nor his representative expressed interest in the Tribunal taking oral evidence from his brother-in-law, and the Tribunal did not consider it appropriate to press this. In sum, the Tribunal has before it the applicant’s assertions about [his brother-in-law’s] political impact on him, but the applicant cannot recall whether he engaged in any political activities in Australia, and he has presented no corroboration of these claims.

19. The Tribunal has difficulties believing that the applicant, then aged in his early [age], had a kind of political awakening during his visits to Australia in 2009; that he cannot recall whether he participated in any related activities; and that he does not appear to have turned his mind to whether there is corroborating evidence from this period.

    Political activism on return to Turkey

20. The applicant claimed that, on his return to Turkey in late 2009, he joined the successor party of the pro-Kurdish DTP, the BDP - Peace and Democracy Party (Barış ve Demokrasi Partisi). This time, inspired by his brother-in-law’s message that Kurdish activism was more important than ever, he engaged more actively in party affairs, and the work of the youth commissions.

21. The applicant said that, over the next four years, he participated in various political activities. Most relevantly, he used to call on the homes of Kurdish people, to explain their rights and encourage them to vote for the BDP (and associated Kurdish groups). The Tribunal queried why the applicant undertook this kind of door-to-door canvassing, given that he speaks no Kurdish and might find it difficult to win the trust of local Kurds. He said that he usually went with an older female party colleague; she was more mature (and implicitly, could win locals’ trust), whereas he was more outgoing.

22. The applicant said that he joined the BDP formally. They did not issue any membership card or formal acknowledgement of membership, as this could put members at undue risk. He said that he used to attend the BDP office in Sahinbey occasionally, but he cannot now remember their street address. He added that he always went there with caution, knowing that it was under surveillance from undercover police. The applicant said that he also attended demonstrations during this period; he responded briefly that he does not have any photographs or other corroborating evidence that might show his participation in these events.

23. In response to the Tribunal’s questions, the applicant said that he also does not have any contact with former political colleagues from his time in Turkey. He explained that the authorities are monitoring and recording communications, and he would not want to endanger himself or others.

24. The Tribunal has already rejected, above, the applicant’s claim that he was more than a low-key supporter of the then DTP, before his visits to Australia in 2009. It has significant concerns about his claimed political awakening in Australia, and his activism when he returned to Turkey:

    §  The Tribunal has difficulty with the suggestion that the applicant – having grown up in southern Turkey, and having first arrived in Australia while he was in his early [age] – only then became actively committed to pro-Kurdish politics, even if he was under his brother-in-law’s influence.

    §  The applicant provided little detail or contextual information about his activities on his return to Turkey. For instance, he gave uncertain, changeable evidence about the BDP’s issuance of membership cards or other documents; and he did not know the location of the office in Sahinbey. The Tribunal is not satisfied that these and similar shortcomings are attributable to the passage of time or memory loss. 

    §  Furthermore, the applicant gave no supporting evidence to demonstrate his activities, such as photographs or correspondence, in Australia or Turkey. Nor is there any ongoing or recent contact with any former political colleagues. In each instance, the applicant provided brief explanations. The Tribunal formed the impression that he had not actually engaged in thinking about what material or personal contacts might be available to assist his case. Similarly, the applicant claimed that his brother-in-law in Australia had a marked influence on his own political commitment, but this is at odds with his (the applicant’s) casual attitude as to whether his brother-in-law could testify to this. Although the applicant provided a letter of support from a person with links to [Association 1], that letter merely states that the applicant is a valued member of that community; there is no mention of any political interests, or any concern about his possible return to Turkey.

25. All of the above concerns, taken together, cause the Tribunal to disbelieve that the applicant engaged in any political activities, in Australia, or on his return to Turkey in 2009, and in the following years. Furthermore, the Tribunal finds that the applicant’s political interests do not extend beyond general support for the BDP (in its various manifestations as a pro-Kurdish party, over time).

    Harm on political grounds

26. The applicant claims that after returning to Turkey in 2009, he became more politically active and, as a result, was subject to more serious and sustained mistreatment at the hands of the Turkish authorities. Implicit in his claims is that, as an Alevi Kurd, he was always more susceptible to be accused of dissident political activities. The Tribunal’s finding above that the applicant was not politically active during this period raises strong doubts over the entirety of these claims. The Tribunal nonetheless considers them in more detail immediately below.

27. General harassment and threats  In his statement of claims, the applicant described his experiences after returning to Turkey as follows:

    The police oppression towards me increased dramatically after I started working more actively in the party. This police oppression turned into torture over the course of time. While in detention, they were continuously threatening to exterminate me, my brothers and my family by extra-judicial executions if I do not sever my relationship with the party.

28. At hearing, the applicant said that the police abuse continued and intensified during this period. The applicant gave few details or specific instances, apart from his alleged arrest and subsequent problems from about 2011.

29. Fear and intimidation: The applicant claimed that official suppression of the pro-Kurdish parties was getting worse over time, and he lived in fear throughout this period.

    §  The applicant also claimed that he occasionally visited the BDP premises in the evening, but had to take care in order to avoid detention. The authorities detained some of his political friends, and the applicant lived under increasing pressure.  

    §  During the course of discussions about his employment history, the applicant said that he had been out of work for a few years after his return to Turkey, and eventually found work in a [workplace]. This echoes part of his written statement, in which he claims to have worked in a [workplace]. He added that this was casual work (with no tax or superannuation arrangements), and nobody knew that he was employed there. At the same time, the applicant wrote in his protection visa application that he undertook various kinds of casual work during their [period].

30. The Tribunal, having rejected the applicant’s claim that he was politically active during this period, does not accept that he lived in fear of detention or mistreatment as a result of his visits to the BDP office in Sahinbey or because of his social contacts. It accepts that the applicant undertook casual work during this period, which might also have been in the informal economy (without tax or other official processes). However, it places very little weight on this as evidence that he was in ‘hiding’, or that he was otherwise subject to discrimination or targeting (whether as an Alevi Kurd, or due to his political opinion).

31. Efforts to leave Turkey: The applicant claimed that, in light of these experiences, he resolved to leave Turkey again, and seek asylum abroad. He applied for an Australian visa, without success. In October 2011, he attempted to fly to [Country 1], using a fake Turkish passport containing a Schengen visa.

32. Arrest for false documentations and accusations of terrorist associations: The applicant claimed that Turkish officials arrested him while he was trying to depart Turkey for [Country 1]; they detained and mistreated him; and they accused him of being linked with the proscribed Kurdish group PKK.

33. In his statement and in his oral evidence to the Tribunal, the applicant gave some further details of this alleged incident:

    §  He said that he obtained a fake Turkish passport containing an EU visa, and was encouraged to leave from [city in Turkey] because of the high level of tourism traffic to and from there (implicitly, this reduced the risk of detection).

    §  The applicant claimed that airport officials detained him, and took him to an office in the basement, where they harassed and assaulted him. Later, at the police station, the applicant told his lawyer that he wanted to press charges, but his lawyer dissuaded him from doing so.

    §  The applicant claims that the police detained him for one week. Having found BDP documents on him, they accused him of planning to join the terrorist PKK (Kurdish Worker’s Party) in [Country 1], and tortured him for days. They seized the BDP documents and destroyed them. The Tribunal queried how – if the BDP had been unwilling to issue membership documents for fear of putting their members at risk – they were willing to give him other proof. The applicant replied that he realised that he was undertaking some risk in carrying such documents. But he could not remember what he had previously written or said about BDP (or similar) membership documents.

    §  The applicant claimed that he was released after one week, but feared going to hospital to seek treatment. He lived with psychological problems after this. In his written statement, the applicant claimed that he later went to a doctor to seek a medical report certifying the torture, but the doctor refused, stating that he himself might be tortured if he wrote such a thing.

    -   Asked to expand on any psychological problems at the hearing, the applicant said that he felt under pressure in Turkey, and is an introvert. As for any lasting psychological effects, he said that he has visited a psychologist a few times in Australia, but is not receiving any ongoing treatment.

    §  The Tribunal noted that, if it were true that the applicant had attempted to depart Turkey on false documentation (such as a false passport and/or Schengen visa), it would appear that he has committed an offence – irrespective of whether the Turkish authorities took it a step further and accused him of terrorist or similar activities. The Tribunal had great difficulty eliciting further details from the applicant, such as whether he was charged and/or convicted of any offences. He appeared to state that he was charged with fraud, convicted and given a heavy fine.

34. The Tribunal accepts that the applicant may have applied for further visas to visit Australia, without success, and then attempted to enter Europe, perhaps on false documentation. However, the Tribunal finds that this has no direct relevance to the applicant’s need for protection in Australia:  

    §  First, the Tribunal does not accept that the applicant did so in order to avoid increasing harassment or mistreatment, on political, ethnic, religious or other grounds. This flows in part from its earlier adverse findings as to the applicant’s political interests and profile.

    -   Related to this, the Tribunal queried whether – if he had a profile with the local authorities, and if he had been unable to secure visas for Australia or European countries – the applicant had considered moving to another part of Turkey, such as Istanbul, where there is a large Kurdish minority. The applicant responded that Kurds experience problems throughout Turkey, in a somewhat dismissive manner. The applicant’s evident lack of interest in such options adds to its concerns about the genuineness of his claims.        

    §  Second, the Tribunal considers it plausible that the Turkish authorities apprehended him attempting to board a flight to [Country 1] using false documentation, and that he was detained, charged with fraud and subject to a fine. However, given its adverse view of his credibility, the Tribunal does not accept that the Turkish authorities found him carrying BDP or other pro-Kurdish material; that they accused him of PKK membership or sympathy; that they singled him out as an Alevi Kurd, or due to any political profile, known or suspected; or that they mistreated him in any other way.

    § Third, none of these alleged incidents – the applicant’s attempted use of a fraudulent Turkish passport, or the serious allegations of support for terrorism – appears to have resulted in any criminal conviction, period of imprisonment, or bar on the applicant obtaining his current Turkish passport in [2013].

1. In sum, the Tribunal accepts that the applicant attempted to leave Turkey during 2010 and 2011. However, it does not accept that he did so in order to avoid persecution or significant harm. It accepts that the Turkish authorities may have apprehended him attempting to depart Turkey on false documentation, but it does not accept that they found him holding pro-Kurdish documentation (such as a letter from the BDP); that they accused him of terrorism or supporting radical Kurdish groups in [Country 1]; that they tortured him, with physical or psychological effects; or that a doctor declined to document his injuries (or their causes) for fear of being targeted.

2. Abduction, attempt to recruit as an informant and threats: The applicant claimed in his statement of claims that he went to the BDP office on the evening before May Day – that is, the day before 1 May 2013 – to finalise preparations for the celebration on that day. The applicant claims that ‘they’ (by implication, the Turkish police or other State agents) arrested his party colleagues as they left the building, but the applicant managed to escape. Shortly afterwards, however, some undercover officers in a civilian car pulled him over, close to his home. They drove him to a secluded area, and demanded that he become an informant for them. They told him that they would talk to him again in one week, and warned him that they would arrest him as a member of the terrorist KCK[4] if he failed to cooperate.

   [4] Union of Communities of Kurdistan (Turkish: Koma Civakên Kurdistan, KCK)

3. The applicant claimed that, after this, he was unable to stay in Gaziantep. His father arranged for him to go into hiding, while he looked for a way to flee Turkey.

4. At hearing, the applicant said that he could not recall the date on which this incident occurred. The Tribunal signalled its surprise that he could not recall that it had been on the eve of 1 May, given that the May Day celebrations had allegedly been the occasion that the applicant and his colleagues had been preparing for. The Tribunal gave the applicant several prompts – such as reminding him that some people had pushed him into a car, and that some people had also pressed him to obtain intelligence for them. The applicant commented that such events were quite common, and he could not put a figure on how often this happened to him. He also said that he did not know whether the people involved were police or from some other agency. He said that he could not remember if anyone had asked him to obtain information.

5. It was evident at the hearing that the applicant could not recall what he had written in his statement of claims, and that he was improvising when suggesting that these kinds of incidents were more or less commonplace. The Tribunal finds that the applicant fabricated the claim that police or others attacked his BDP colleagues as they were leaving the office in late April 2013; that undercover agents (or others) seized him on the road; that they demanded he act as an informant, threatening to arrest him if he failed to comply; and that the applicant then went into hiding, while his father looked for a way for him to escape. It does not accept that there was any such incident in late April or early May 2013. It also does not accept that this was one of several similar incidents that he experienced in Turkey.

6. The Tribunal finds ample evidence to reinforce this conclusion. For instance, as noted elsewhere in this decision, the applicant explained his delayed lodgement of a protection visa application in Australia (he arrived in August 2013, yet did not seek protection until two months later) by stating that he was not yet sure of whether he needed it – but threatening telephone calls that were made to his father convinced him of the need to seek protection. The Tribunal finds it difficult to believe that the applicant prevaricated in this way, if indeed he had been targeted by undercover agents just prior to his departure from Turkey. Similarly, the Tribunal discussed with the applicant how he managed to obtain a passport [in] 2013

7. The Tribunal also does not accept that the applicant wanted to engage in more political activities, but was afraid to do so, due to the risk of being detained, mistreated or subject to other harm. The Tribunal finds that the applicant’s interest in pro-Kurdish parties does not extend beyond general support for them.

   Departure from Turkey

8. In light of the findings of fact above, the Tribunal does not accept that the applicant left Turkey to flee persecution or significant harm – that is, due to the (now-rejected) claims arising from the incident in which Turkish agents demanded that he acted as an informant and threatened to bring serious charges against him; due to any general harassment or curtailment of political freedoms; or due to his experiences as an Alevi Kurd who favours the BDP. The Tribunal finds instead that he left Turkey for reasons unrelated to his protection claims.

   Incidents after the applicant’s arrival in Australia

9. The applicant claimed that, some weeks after he arrived in Australia, his father told him on the telephone that the police had come around to their home looking for him. This (alleged) incident is significant because, if true, it signals the Turkish authorities’ ongoing adverse interest in the applicant, and it played a pivotal role in his decision to seek protection.

10. The Tribunal has significant concerns about the truth of this claim:

    §  The applicant told the Tribunal that, up to that point, he did not take the threats and incidents too seriously. He claimed that this visit to his father’s home was the turning point that made him decide to seek protection in Australia, and explains his delay in lodging his protection visa application. In the Tribunal’s view, it is difficult to reconcile this claim with the applicant’s (now-rejected) claims that Turkish agents abducted, tried to recruit, and threatened him; that he then went into hiding; and that he fled Turkey for that reason.

    §  The Tribunal notes that the applicant did not mention this in his written statement of claims previously. In his response to this observation at hearing, the applicant again said that there were many things that he had not said.  

11. Given these concerns, the Tribunal’s earlier findings of fact (about the applicant’s  experiences in Turkey) and its broader concerns about the applicant’s credibility, the Tribunal does not accept that the Turkish police came to the applicant’s home looking for him, or that the authorities have any ongoing adverse interest in him, for any reason.

    Findings

12. The Tribunal accepts that the applicant is a Kurd and, at least nominally, an Alevi. It finds that he and his family are well integrated into the Turkish community, mainly due to historical reasons. The Tribunal accepts that the applicant generally prefers leftist, pro-Kurdish parties, but it does not accept that his political interests extend beyond such a preference, or that he has been involved in any political activities. The Tribunal accepts that the applicant may have experienced some minor discrimination, as a Kurd.

13. The Tribunal does not accept that, prior to his visit to Australia in 2009, the applicant was subject to police harassment or assaults; that people came to his shop and destroyed or ransacked it; or that he suffered any other harm – whether as an Alevi Kurd, or as a person who favoured leftist parties – that caused him to leave Turkey to visit Australia. The Tribunal does not accept that the applicant became politically active in Australia during 2009, although it accepts that he may have socialised with members of the Kurdish community who engaged in cultural or political activities.

14. The Tribunal does not accept that the applicant engaged in political activities on his return to Turkey in late 2009. It also does not accept that he suffered any related harm, for political reasons and/or as an Alevi Kurd. The Tribunal rejects all associated claims, including that the police monitored and harassed him (and family members); that there were more instances of detention or physical mistreatment; that the applicant suffered psychological harm due to this; that the applicant lived in fear and had to exercise caution; or that Turkish undercover agents abducted him, tried to recruit him as an informant and threatened to harm him, in May 2013. The Tribunal dismisses all associated claims. It does not accept that the applicant is fearful of communicating with family members, or expressing his political opinion on social media, or taking any other precautionary measures due to a fear of harm from the Turkish authorities.

15. The Tribunal finds that the applicant left Turkey in June 2013 for reasons unrelated to his protection claims. It does not accept that he was fearful of being caught while doing so. It also does not accept that Turkish police came looking for him some six weeks after her arrived in Australia, or that the Turkish authorities have any adverse interest in him at all.

16. The Tribunal accepts that the Turkish authorities may have intercepted him trying to travel to [Country 1] on false documentation (that is, a false passport or using a false Schengen visa). The applicant claims that he was subject to a fine only. The Tribunal does not accept that the Turkish authorities accused him of supporting pro-Kurdish (‘terrorist’) groups; or that he acquired an adverse profile as a result of his attempt to leave Turkey. The Tribunal finds that the applicant’s wish to travel to Europe was for reasons unrelated to his current protection claims, although it may have been influenced by broad concerns about Turkey’s economic, social and political environment.     

    ASSESSMENT: REFUGEE CRITERIA

17. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Turkey, and relevant country information, he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

18. 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, 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 him as a person of interest to the Turkish authorities. While the Tribunal accepts that they may have caught him trying to travel to Europe with false documentation, it does not accept that he was subject to any more than a fine. It does not accept that he was detained and subject to mistreatment, or that he has any adverse profile as a result.

19. At hearing and in the post-hearing submission, claims to be at risk of persecution as an Alevi Kurd due to a number of factors, considered cumulatively. These are in summary:

    §  The Turkish authorities may target him as an Alevi Kurd, in particular due to his past political activities;

    §  The influx of Syrian refugees, especially into the area around [the town in Kahramanmaras] and/or Gaziantep, has changed the dynamics of the area. According to the applicant at hearing, there is an increased ISIS presence in the area, which the Turkish state is willing to tolerate in order to undermine Kurds, particularly Alevi Kurds; and

    §  More generally, the attempted coup in 2016 and national referendum in April 2017 have resulted in restrictions on political freedoms and human rights, crackdowns on perceived dissidents (including the dismissal of large numbers of government officials), and a targeting of perceived oppositional voices, including pro-Kurdish parties.

20. Country information discussed at the hearing indicates that Turkey has undergone significant changes since the applicant left that country.  The Tribunal accepts that the security situation in Turkey has deteriorated in recent years. As noted in the most recent DFAT report:

    Turkey’s security situation has deteriorated markedly since the previous DFAT Country Information Report was published in June 2014. This is due to external security threats related to the war in Syria and Iraq (which share borders with southeast Turkey), as well as internal security threats resulting from the civil conflict between Government forces and the PKK in the southeast. Terrorist threats and attacks, including by the Islamic State of Iraq and the Levant (ISIL aka Daesh) and from the Kurdistan Freedom Falcons (TAK), have also increased. The International Crisis Group has listed Turkey as one of ‘Ten Conflicts to watch in 2016’.[5]

    [5] DFAT Country Information Report: Turkey, 5 September 2016, [3.36]

21. As discussed at hearing, the applicant’s home area of Gaziantep, and the southern part of Turkey, has been subject to an influx of Syrian refugees. This has had multiple effects, including pressure on basic resources; tensions between different ethnic and religious groups (including the established Turkish and Kurdish populations, and largely Arab Syrians); and security concerns, with some reported ISIS attacks. The Tribunal drew in particular on the following report in Al Jazeera, which conveys some sense of the local concerns:

    Located just an hour's drive from the Syrian border, the Turkish city of Gaziantep has become a massive intake point for refugees fleeing Syria's civil war, now into its sixth year. Its proximity to the conflict has also made Gaziantep a target for the Islamic State of Iraq and the Levant (ISIL, also known as ISIS), with the group blamed for an attack on a wedding party that killed more than 50 people last month. The city, meanwhile, has been under a heightened state of security for the past week, contributing to increased tensions on the streets.[6]

    [6] Megan O’Toole: Al Jazeera: Gaziantep is as safe as Germany and the US, 25 September 2016:

22. The report goes on to quote the mayor of Gaziantep, Fatma Sahin, who spoke of the pressure on Gaziantep and surrounding cities and provinces, particularly in areas such as schooling; perceived competition between Turkish and Syrian workers; and security concerns. Although this article is generally upbeat, the Tribunal notes other articles that refer to communal tensions, for instance between conservative Sunni Syrian refugees and minority groups such as the Alevis.[7] The Tribunal accepts, based on this and similar reports that Turkey is experiencing economic and political instability, and that the Syrian war has added another dimension in the form of religious and ethnic tension. It also accepts that Alevis (and Alawites), especially along the border area (which includes Gaziantep) have been worried about the sheer numbers of Sunni Syrians, and the risk of sectarian strife in Syria spilling over into their area.

    [7] As quoted in the submission of 5 June 2017: Kunaal Sharma: The War Next Door: How Syria is Shaping Politics in Turkey:  

23. The Tribunal is not satisfied that Turkey’s broader security problems and instances of communal tension, or the occasional terrorist incident, give rise to a real chance of the applicant being subject to serious harm – as an Alevi, an Alevi Kurd and/or as a person who generally favours pro-Kurdish parties. The Tribunal notes that the applicant has not lived there for more than four years, but does have family living there; he has no adverse profile (with the Turkish authorities or others); he is at most a nominal Alevi and a Kurd who is well-integrated into the Turkish community (to the point of not even speaking Kurdish); and he has no political profile (within the pro-Kurdish parties, or in the eyes of the Turkish authorities or competing parties). It follows that the Tribunal finds that the applicant faces no real chance of serious harm amounting to persecution, for reason of his race, (nominal) religion, his political preference or any other Convention ground.

24. The Tribunal also does not accept that he has any past political profile, or that he is more than a low-level general supporter of successive pro-Kurdish parties. The Tribunal therefore does not accept that the applicant will be motivated to engage in political activism in Turkey, or that he will need to refrain from political acts in order to avoid persecution.

25. In his claims and accompanying statements, the applicant claimed that he found work on his return to Turkey in late 2009 through an Alevi Kurdish friend; and that his brothers are now cautious about talking to him, due to extensive State surveillance. The Tribunal has considered whether these and similar claims imply that the applicant may face problems on his return – such as limited employment opportunities, or heavy-handed scrutiny from government agencies. However, given its overall assessment of his past experiences and conduct, the Tribunal does not accept that the applicant faces a real chance of persecutory harm (such as the denial of earning a living), for any such reason.

26. The applicant mentioned at the Tribunal hearing that he is an Alevi in name, but actually secular in outlook. The Tribunal is mindful of country information that modern Turkey’s secular foundations are coming under pressure, as the role of Islam in politics and society is being debated, and tensions emerge between some ethnic and religious communities. However, the applicant has not claimed, and the Tribunal is not satisfied on the available material, that he is at risk of harm as a secular Alevi or secular Muslim.

27. The applicant’s concerns raise, however, the broader issue of the security situation in Turkey and in his home area of Gaziantep. 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)).

28. In sum, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution, in Gaziantep or elsewhere in Turkey, for reason of his Alevi faith, his Kurdish ethnicity, his political support for leftist pro-Kurdish parties, or any other Convention-related reason. The Tribunal is also not satisfied that the applicant faces a real chance of serious harm arising from the general security situation in Gaziantep (or elsewhere in Turkey); and it notes that, in any event, such generalised harm would not meet the definition of persecution set out in section 91R(1) of the Migration Act.

29. 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 his Kurdish origins/ethnicity, his (nominal) Alevi faith, his leftist political leanings or any other Convention reason. 

30. 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 he returns to Turkey. It is therefore not satisfied that he meets s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

31. 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.

32. The Tribunal refers to the findings of fact above. It is not satisfied that the applicant has any attributes – including as a (nominal) Alevi, a person of Kurdish origins, and/or a person who favours leftist political parties – that put him at risk of significant harm. It is not satisfied that there are any other circumstances that put him at risk of such harm.

1. 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 him, 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 he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Turkey.      

2. 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 he 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 him personally.

3. 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 he will suffer significant harm: s.36(2)(aa).

   Conclusion

100.   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).

101.   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).

102.   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

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

James Silva
Member

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.