1509398 (Refugee)

1509398 (Refugee) [2018] AATA 5653 (19 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509398
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 4:47pm

CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurd – religion – Alevi – isolated incidents of harm – military service – participated in Kurdish cultural and musical activities in Australia – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), 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

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 18 March 2014 and the delegate refused to grant the visa on 6 July 2015. The applicant appeared before the Tribunal by video conference on 6 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.
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.
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.
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’).
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
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 a Kurdish Alevi who will have to perform military service. activities he has undertaken in Australia for a Kurdish group and due to the adverse interest he claims that Turkish authorities hold in certain of his family members in Turkey.[1] The Tribunal holds the following concerns about the applicant’s credibility.
Credibility Concerns
Evidence about events in Turkey since the applicant’s arrival in Australia
[1] The applicant’s evidence to the Department and the Tribunal comprises the contents of his protection visa application forms; his written statement lodged with the Department; his statutory declaration dated 10 June 2015; his evidence at his interview with the delegate for which there is an audio recording and to which the Tribunal has listened and his evidence at the Tribunal hearing. The Tribunal had access to the department file relating to the application for a [temporary] visa made by the applicant to enter Australia. The materials on that file are not relevant to the grounds on which this review has been determined.
To the Tribunal, the applicant said that in September 2016, his sister (‘sister 1’) and her husband were both dismissed from their [employment]. This was due to allegations that they were involved with the Gulen movement associated with the cleric Fethullah Gulen and which the Turkish government alleged was responsible for the attempted military coup in July 2016. Based on those same allegations, in [2017], the husband of sister 1 was arrested and imprisoned. He remains in prison at the present time. The applicant said that he was told of these events in 2017.
To the Tribunal, the applicant said that neither sister 1 nor her husband were involved with the Gulen movement and could not be involved because they were Alevi Kurds. Then, in February 2018, the applicant’s brother (‘brother 1’) was detained by Turkish police for three or four days. Due to this experience, in May 2018, he attempted suicide and had to receive treatment in hospital. He now lives at the home of another sister (‘sister 2’) where he is attempting to make arrangements to be able to leave Turkey.
The Tribunal asked the applicant why brother 1 was detained in February 2018. In response, the applicant said that he was not sure because it was difficult to talk over the telephone. He did not find out about his brother’s detention and attempted suicide attempt until just recently when he telephoned sister 2 just to say hello to her. He said that it was just coincidental that when he telephoned her she conveyed this news to him. When again asked the reason for the detention of brother 1, the applicant said that he was ‘guessing’ but thought that it could be related to the allegations against sister 1 and her husband about involvement with the Gulen movement.
To endeavour to be more certain as to the reason for the detention of brother 1 in February 2018, the Tribunal asked the applicant whether his brother belonged to any political groups and whether this was the first time he had ever been detained in Turkey. In response, the applicant said that brother 1 had no involvement with political groups. When he was at high school he had been in some clashes with right-wing nationalists and on occasions the police detained him. However, in the intervening years, brother 1 being in his [age], had not been detained.
Further in the hearing, the Tribunal returned to these events and asked the applicant to confirm that it was through a telephone call to sister 2 that he learned of the detention of brother 1 in February 2018 and his suicide attempt in May 2018. In response, the applicant said that was correct. He said that he telephoned his sister in May 2018 to say hello and his sister asked him if he was ringing her to speak to brother 1. That surprised the applicant as he was not aware that brother 1 was living with her and then she told him about these recent events.
The Tribunal put to the applicant that it was difficult to accept that family in Turkey would not have told him about the detention of brother 1 in Turkey when that actually happened and that news of this event and his attempted suicide was only given to him by chance through this telephone call to sister 2. In response, the applicant first said that in fact he found out through another brother who lives in Australia (‘brother 3’). He then said that family in Turkey did not tell him about these events because they did not want to upset him.[2] He then said that he found out from brother 3 in Australia and then telephoned sister 2 in Turkey. After giving that evidence, the applicant then said that in fact he found out from brother 3 that his brother-in-law had been imprisoned in 2017.
[2] In submissions of 18 September 2018, the representative advanced similar explanations on this issue.
The Tribunal asked the applicant whether brother 3 in Australia knew that brother 1 had been detained in February 2018. In response, the applicant said that after speaking to sister 2 in May 2018 he then approached brother 3 and asked him what he knew about these events. He said that brother 3 told him that he did know about those events but did not pass that on to the applicant as he did not want to upset him. The Tribunal put to the applicant that it had difficulty accepting that his brother in Australia and family in Turkey would not have told him straight away about the dramatic events he claims occurred in February and May 2018.
In response, the applicant said that indeed brother 3 ‘told off’ sister 2 for giving the applicant news of these events telling her that the applicant’s life was stressful. Further, the applicant said that he was angry with his brother in Australia for not earlier telling him what had happened. The Tribunal rejects these explanations. It is inconceivable that the applicant’s brother in Australia (who was not called as a witness at the hearing) would withhold from the applicant such important news as the detention of brother 1 and his subsequent suicide attempt. The Tribunal does not believe that this news would be withheld from the applicant so as not to upset him.
The Tribunal also does not believe that family in Turkey would withhold this news from him so as not to worry him. If the applicant’s family in Turkey and his brother in Australia were so concerned about his well-being they would have told him straight away about what happened to brother 1 given all would be aware that this could indicate danger for the applicant if he was to return to Turkey. The applicant said that he was told about the difficulties encountered by sister 1 and her husband in 2017 and, if that is so, the Tribunal can see no plausible reason why he could not also be told about what happened to brother 1.
Also, in his evidence, the applicant said that he could not make many telephone calls to Turkey as he believed that they were being recorded by the government. Even so, he was told about sister 1 and her husband and the family in Turkey were able to tell his brother in Australia about the detention and suicide attempt of brother 1. Overall, the Tribunal finds not credible the applicant’s evidence about these important events in 2018 being withheld from him by his own family. The Tribunal also put to the applicant that it was concerned that it was not until the Tribunal hearing that, for the first time, the applicant advanced claims about the dismissal of sister 1 and her husband from their employment, the husband’s imprisonment and the detention and suicide attempt of brother 1.
In response, the applicant said that he made no prior mention of these events because he wanted to have documents in his possession that related to them. The Tribunal asked the applicant why he thought that it was necessary to have documents in his possession before he could actually notify the Tribunal, either himself or through his representative, about these important events. In response, the applicant said that he just thought that it would be more realistic and appropriate to have documents with him before giving evidence about these events. At the hearing, the representative said that she told her client to tell the Department about these events in Turkey but he told her that he wanted to wait until he had documents in his possession.
In this respect, to the Tribunal, the applicant said that he had documents about an appeal made to the courts by sister 1 and her husband about the way they had been treated by Turkish authorities. He said that he understood that the courts dismissed the case in May 2017. He said that he also had a medical report related to the suicide attempt in May 2018 by brother 1. The Tribunal does not believe that the applicant, either himself or through his representative, would refrain from notifying the Tribunal about the events he claims occurred in Turkey in which family members suffered harm from Turkish authorities just because he did not have documents related to those events. To the Department, the applicant has made claims about instances of harm suffered in Turkey based on his Kurdish Alevi identity without having documents to corroborate those claims.
In submissions of 18 September 2018 the representative also submitted that the applicant was distressed, anxious and felt shame about what happened to brother 1. The Tribunal does not accept that these are valid reasons for the applicant to fail to make any prior mention of the important claims he related for the first time at the Tribunal hearing.
Evidence about working in a [specified workplace] from 2011
To the Tribunal, the applicant said that in April 2011 he worked at [a specified workplace]. He left this employment after approximately seven months because of problems with nearby shop-owners related to his Kurdish Alevi identity who said negative things to him about that. Later that year, he took up employment at a different [workplace] and worked there as [Occupation 1]. Most of the [clients] and staff [were] Kurdish. The applicant said that he left this employment in mid-January 2014 and came to Australia two weeks later. When asked why he left his employment, the applicant said that it was due to issues of racial discrimination against him and the [workplace] itself for being Kurdish.
The applicant said that his car and cars of staff members were attacked. People would throw rocks at the [workplace]. On one occasion, a staff member was hit with a rock and injured. They would also fire gun shots at the [workplace]. In addition, people would come in cars and shout abuse. Staff would call the police but they did not come. When asked what difficulty he had himself, the applicant said that a Turkish woman, Z, would telephone him and make threats to harm him. She would make derogatory remarks about his Kurdish ethnicity and say that he would be killed if he did not leave his work. The applicant also believed that he was being followed.
In his initial evidence, the applicant said that he received threats over the telephone for a period of two months. He said that he would receive these threats every day. When asked over what period of time he received them, the applicant again said two months. However, further in his evidence, the applicant said that in fact he continued to receive these threatening telephone calls up until he left his employment in early 2014. He said that after approaching the authorities for assistance in August 2012 the telephone threats continued but they were not as frequent.
In this respect, to the Tribunal, the applicant said that in August 2012 he approached the chief public prosecutor’s office to complain about the threats he was receiving and the harm done to the [workplace]. He said that a woman at the office told him that he could not allege that these difficulties were due to his Kurdish Alevi identity. He was told that he could only complain about the telephone threats but he could not say why they were being made. The applicant said that he subsequently spoke to a prosecutor and, in view of the advice he was given, he only mentioned receiving threats and did not say that these difficulties were due to his Kurdish Alevi identity.
The applicant said that in approaching the prosecutor he was going to an office representing the Turkish government and recognised that he could not complain about being harmed due to his Kurdish Alevi identity. It was on that basis that he felt intimidated and did not want to say anything about that. At any rate, the prosecutor told the applicant that he could not assist him and said that he should go to the police instead. The applicant, on that same day, went to a police station where two police officers told him the government would not help him and they beat him. The applicant said that he left the police station, got into his car and drove towards another town. He said that from that place he telephoned his employer to say that the police had beaten him.
His employer then telephoned the police and said that they would complain about the way the applicant had been treated. The police told them there had been a misunderstanding and so the applicant’s employer told him he should go back to the police station and the police would apologise to him. The applicant returned to the police station but the officers were even more aggressive and said that they would report him to the prosecutor and they again punched and beat him. The applicant then approached a lawyer about the way he had been treated but the lawyer told him not to take any further action or the police would imprison him.
The Tribunal asked the applicant why he would bother approaching a prosecutor, and then the police, for help with the threats he had been receiving if, at the same time, he was aware that he could not allege that these problems were due to him being Kurdish Alevi. In response, the applicant said that in fact in any official government office he could not say that he had suffered harm for being Kurdish and Alevi. However, he did want to complain about receiving threats. The Tribunal put to the applicant that it had been a theme of his evidence to the Department that over his life when he had suffered harm due to his identity and approached the police for help, they would not help him because of his identity. The applicant said that was correct.
The Tribunal asked the applicant why therefore he would approach a prosecutor and twice approach the police for help in those circumstances. In response, the applicant said that it was his right to complain and the threats continued. He and his representative said that the staff working at the [workplace] all approached a prosecutor for action to be taken but no assistance was provided. The Tribunal then asked the applicant why he remained in this employment until January 2014 when it had been made clear to him as early as August 2012 that the Turkish authorities were not going to assist him with the difficulties he and the [workplace] were having.
In response, the applicant said that in his employment he was responsible for certain processes and had to train someone to take his place. The Tribunal again asked the applicant why he would not leave his employment by August 2012 when it had been indicated to him that in fact if he persisted to complain about the problems he was having he could be put in jail. In response, the applicant asked whether he would just keep changing his employment; that to change work was no real solution.

Further in the hearing, the Tribunal again returned to this period of the applicant’s life before coming to Australia. The Tribunal again put to the applicant that the theme of his evidence to the Tribunal and to the Department was that the police did nothing to help him because of his Kurdish Alevi identity. The Tribunal again asked the applicant why, therefore, he would complain to Turkish authorities in August 2012 about the threats he had been receiving. In response, the applicant said that he had fear of doing that but he wanted to complain. In submissions of 18 September 2018, the applicant’s representative stated that the applicant complained because he was ‘overwhelmed, distressed and even enraged’. Further, the applicant stated that it was the [workplace] that was having trouble in addition to him.
The Tribunal asked the applicant why he would not be allowed to allege in his complaint that the trouble he and the [workplace] had been having was due to being Kurdish and Alevi. In response, the applicant said that he could not mention those things because Turkish authorities thought very little of the Kurdish and Alevi’s. Had he told the prosecutor that these were the reasons for the trouble that he had been having the prosecutor would have told him to get out of his office. The Tribunal put to the applicant that surely, if an investigation had been made into the complaint that he had been receiving threats (even if he withheld why those threats were being made), the authorities would soon find out that the trouble he and the [workplace] had been having was based on being Kurdish and Alevi.
In response, the applicant said that he did not know what the prosecutor would have done nor how that would have been handled. He said that the [workplace] had been having safety issues and, as a last option, went to the authorities, but they did nothing. Overall, the Tribunal finds the applicant’s evidence about these difficulties he encountered in his employment at this [workplace] to be incongruous and not credible. The Tribunal can allow for the fact that people at this [workplace] also approached the authorities but this does not overcome the Tribunal’s concerns about the applicant’s account.
The applicant had made clear in his evidence to the Department and the Tribunal that the police would not assist Kurdish Alevi’s and did not assist him in his life when he had difficulties because he was Kurdish Alevi. It was therefore incongruous to the Tribunal that the applicant would attempt to pursue a complaint about the trouble he had been having. It was incongruous to the Tribunal that in doing so he would actually withhold the reasons why he was having that trouble. He claims that was because, if he disclosed those reasons, the authorities would not take action. However, the authorities would surely have learned the reasons why the applicant was receiving threats if they were to investigate his and the [workplace]’s complaints.
In addition, the Tribunal does not believe that, if the applicant was experiencing the harm he claims to have suffered in this period of his employment, he would remain in that employment until January 2014. According to his account, by August 2012, it was made clear to him that the authorities were not going to help him or his employer. His reasons for remaining in that employment, primarily, to train someone to take his place and to avoid changing employment, are not convincing.[3] The Tribunal does not believe that somebody, in his claimed circumstances, would behave as he did.
Conclusions on Credibility
[3] This includes claims made by the representative in submissions of 18 September 2018 that the applicant was saving money to leave Turkey; he was the sole manager of the whole operation and needed to be there until a successor was appointed and that in the final year of his employment escort transportation was provided.
Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth. Therefore the Tribunal disbelieves the applicant’s evidence about family members suffering harm in Turkey after he came to Australia in early 2014. The Tribunal disbelieves the applicant’s claims that a sister and her husband were dismissed from employment and that her husband was imprisoned.[4] The Tribunal disbelieves the applicant’s claims that one of his brothers was detained in February 2018 and attempted suicide in May 2018. The Tribunal also disbelieves the applicant’s claims about suffering harm based on being Kurdish and Alevi while [working] from late 2011 until January 2014.
[4] This includes rejecting claims made by the representative in submissions of 18 September 2018 that the brothers of the husband of sister 1 were also imprisoned.
Because he is not a witness of truth, the Tribunal finds that the applicant has, with respect to his experiences in Turkey, attempted to embellish his account. The Tribunal finds credible his claims that he is Kurdish and Alevi. The Tribunal accepts his claims to the Department and Tribunal that when he attended school he was involved in minor altercations with people from the youth wing of a nationalist party for which the police refused to provide assistance and beat him. The Tribunal accepts the applicant’s claims that he and his family were attacked by others during a New Year’s Eve celebration in 2002 for which the police provided no assistance.
The Tribunal also accepts as credible that on two or three occasions over 2007 to 2008 an ‘x’ symbol was painted on the applicant’s family home. The Tribunal also finds credible the applicant’s claim that he and his family were attacked [at] their home in 2012. The Tribunal finds that these are isolated incidents that occurred over a number of years. Notwithstanding those incidents, to the Tribunal, the applicant indicated that his family were wealthy. He said that his mother and one of his sisters, who lives with her, support themselves from rental income received from properties owned by the family. In this respect, the applicant said that his mother owned [a number of properties], in addition to the home in which she and his sister live. The applicant said that he has another brother who for the last three years has been working in a [specified workplace].
The Tribunal is not satisfied that the isolated incidents of harm the Tribunal accepts as being credible amount to persecution. They do not demonstrate that there is a real chance the applicant will suffer serious harm on return to Turkey because he is a Kurdish Alevi. In his evidence to the Department, the applicant has maintained that he and his family constantly received harassment and, in effect, constantly lived in fear because they are Kurdish Alevi’s.[5] Because the applicant is not a witness of truth, the Tribunal finds that this is an embellishment and exaggeration.[6] Similarly, to the Tribunal, the applicant claimed that one of his sisters had psychological problems in 2000 because of this harassment and his mother was in hospital in July 2014 for the same reasons. The Tribunal rejects those claims and the only instances of harm suffered by the applicant and his family are those specifically mentioned above as being credible.
[5] The representative has made similar claims in her submissions dated 18 September 2018 and referred to the family originally coming from a location where a massacre of Kurds took place in 1937, the representative submitting a family registry document as proof of that.
[6] This includes rejecting claims that the family constantly changed address made by the representative in her submissions dated 18 September 2018 at page four.
To the Department, the applicant submitted two documents that appear to emanate from the office of a prosecutor in Turkey.[7] The Tribunal has carefully considered the contents of these documents but they do not persuade the Tribunal that the account of events related by the applicant about harm he claims to have suffered in this particular period of employment are true. The contents of these documents do not overcome the incongruity of the account related by the applicant about approaching a prosecutor and police for assistance which the Tribunal has discussed above. Accordingly, the Tribunal does not give evidentiary weight to these documents.
[7] See folios 49 and 51 of the Department file. The representative again provided these documents with submissions of 18 September 2018.
With submissions of 18 September 2018, the representative provided hospital records related to the admission to hospital of the applicant’s mother in 2014 and brother 1 in May 2018. The representative also provided court documents related to the dismissal of sister 1 and her husband from their employment. So far as these documents purport to corroborate the claims the applicant makes about harm suffered by his family, the Tribunal does not give weight to them. It is inconceivable that the applicant’s family would withhold from him the news that brother 1 had been detained and then admitted to hospital after a suicide attempt. These documents do not persuade the Tribunal to overlook that concern nor its concern that the applicant failed to advance important claims about harm suffered by his family prior to the Tribunal hearing. The documents submitted by the applicant do not overcome the concerns the Tribunal holds about his credibility overall and the Tribunal remains of the view that the applicant is not a witness of truth and his evidence about harm suffered by his family, in the respects discussed above, is not credible.
In terms of available country information about the risk of Alevi Kurds suffering serious harm, the Tribunal has taken into consideration DFAT, Country Information Report Turkey dated 5 September 2016. According to this report, Alevi’s can practice their religion, obtain employment in the private and public sector, face only low levels of societal discrimination and face no discrimination in terms of access to healthcare or education.[8] Further, DFAT states:
“Overall, on the basis that Alevi’s are generally free to practise their faith, express their identity, find employment and achieve political representation, DFAT assesses that Alevi’s are at a low risk of violence on the basis of their religion.”[9]
[8] See 4.44-4.46:
“4.44 Like other minority groups, Alevis are able to secure public sector employment, including in the military, but many report they do not feel comfortable revealing their religion. Securing promotions can be difficult if they are open about their Alevi identity. There are few, if any, Alevi police chiefs in Turkey. There are no Alevi Governors in any of the 81 provinces of Turkey.
4.45 Alevis in Turkey enjoy many religious freedoms: they are generally free to gather in Cemevis to undertake religious ceremonies and in many spheres of life can freely express their identity without fear of discrimination. Increasingly, municipal governments in Alevi-majority areas are providing financial support for Alevi cultural institutions. DFAT is not aware of any discrimination against Alevis in terms of access to health care or education, other than the requirement to undertake Islamic religious classes.
4.46 Alevis are often accepted as an integral part of Turkish society. The leader of the CHP is an Alevi and up to 40 Alevis are believed to be represented in Parliament in 2016 (including 30 in the CHP; five in the BDP and two in the AKP). Alevis are able to obtain employment in the private sector or run their own businesses, and to celebrate their annual religious holidays, although these are not recognised as official holidays. The three main Alevi Foundations are able to operate freely and advocate on behalf of the community. However, despite the size of the Alevi community, Alevi’s keep a low profile within society and many Alevi’s still prefer to hide their identity, especially from Sunni Muslims. Overall, DFAT assesses that Alevi’s face low levels of societal discrimination on the basis of religion.”
In its most recent report on Turkey, DFAT expresses a broadly similar position. In this respect, see DFAT, Country Information Report Turkey, 9 October 2018, at 3.20-3.25.
[9] See DFAT Country Information Report Turkey, 4.48. DFAT expresses a similar position in its most recent report on Turkey, see DFAT, Country Information Report Turkey, 9 October 2018, at 3.24-3.25.
Although country information suggests that there are Alevi’s who choose not to reveal their identity, the applicant himself has not advanced any credible evidence that he concealed his (Kurdish Alevi) identity in Turkey nor that he would choose to do so on return there. Overall, the country information suggests to the Tribunal that the risk of the applicant suffering serious harm in Turkey because he is Alevi is remote.
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.[10] 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.”[11]
[10] 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.
[11] 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.
More recent country information indicates that 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.[12] 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 the isolated events mentioned above which the Tribunal accepts as being credible but which do not amount to persecution. The Tribunal infers from this country information that the risk of the applicant suffering serious harm because he is Kurdish (even considered cumulatively with the fact that he is an Alevi) is remote.
[12] See Country of Origin Information Services Section (COISS), Department of Home Affairs, Turkey Treatment of “Gulenists” and Kurdish Groups, 25 May 2018, 20-21:
“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.
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 and Alevi is remote. In response, the applicant claimed that following the attempted coup in 2016 the situation for Kurds and Alevi’s was worse. The sources of country information on which the Tribunal relies above discuss the consequences of the attempted coup and according to those sources the position for Kurds and Alevi’s is as expressed above. The applicant also referred to Islamic State persecuting Kurds and Alevi’s in Syria. The country information on which the Tribunal relies makes no mention of this group targeting Kurds or Alevi’s in Turkey.
According to available country information, men aged from 20 to 41 are eligible for conscription and must undertake military service.[13] Although, in its country information report on Turkey, DFAT discusses the risk of harm to Alevi’s and Kurds and although this report discusses requirements to perform military service, DFAT makes no mention of Alevi’s and Kurds suffering harm while performing military service on any ground, including on the basis of religion or ethnicity.[14] 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 an Alevi Kurd this would be mentioned by DFAT and would also be mentioned in recent country information.
[13] DFAT Country Information Report Turkey, 4.113; DFAT Country Information Report Turkey, 9 October 2018, at 3.92.
[14] Similarly, in DFAT Country Information Report Turkey, 9 October 2018, there is no mention of conscripts suffering based on being Alevi or Kurd.

The Tribunal conducted searches of recent country information and could find no reports of conscripts being harmed while performing military service based on their religion or ethnicity. At the hearing, the Tribunal discussed this with the applicant and put to him that the risk of him suffering serious harm in military service was remote. In response, the applicant just made general claims about the poor treatment of Alevi’s and Kurds and how villages had been destroyed and people forced to move. Those broad claims do not persuade the Tribunal to depart from the inference it draws from country information that the risk of the applicant suffering serious harm due to the requirement to perform military service is remote.
To the Department, the applicant claimed that he tried to pay money to be given an exemption from performing military service but this was denied due to him being Kurdish and Alevi. Although country information does refer to people, in certain circumstances, being able to pay money to obtain an exemption from military service, no mention is made that this exemption is denied to Kurds and Alevi’s.[15] Because he is not a witness of truth, the Tribunal rejects this claim.
[15] As to the option of paying money to avoid carrying out military service, see DFAT Country Information Report Turkey, 9 October 2018, at 3.94, which refers to this option being available to university graduates and Turkish citizens over age 38; categories into which the applicant does not appear to come.
The applicant also said that there were people who committed suicide while performing military service. The Tribunal put to the applicant that, according to country information and the decision of the delegate, there were large numbers of people performing military service at any time in Turkey and the number of people taking their own lives while doing so was still small in that context.[16] So far as the prevalence of suicides of conscripts was meant to demonstrate the risk of the applicant suffering serious harm, the Tribunal remains of the view that the risk of the applicant suffering serious harm while performing military service is remote. In response, the applicant said that he would provide a report about the treatment of conscripts in military service after the hearing. No such country information was provided. In her submissions of 18 September 2018, the representative stated that Kurdish and Alevi soldiers were targets during military service but also provided no country information to substantiate that claim.
[16] See United Kingdom Home Office, Country Information and Guidance Turkey: Military Service, March 2016 at 4.3 Size of the Military. According to this source, the Turkish armed forces comprise 624,618 personnel of which 400,806 are male conscripts. See also DFAT Country Information Report Turkey, 9 October 2018, at 5.2 where DFAT states:
The Turkish Armed Forces (TSK), comprising an army, navy and air force, are responsible for territorial defence, including having overall responsibility for border security. The president is Commander-in-Chief, while the Chief of General Staff is Commander of the Armed Forces with responsibility for the day-to-day running of the military. With a total strength of approximately 350,000 active personnel, 360,500 reserves, and 1.375 million Turkish citizens reaching military age annually, the TSK is one of the world’s largest militaries.
To the Tribunal, the applicant said that he wanted to submit a letter from a Kurdish organisation related to his involvement with that group in Australia. To the Tribunal, the applicant said that he had been involved with this group since his arrival in Australia and attended functions every weekend. When asked what he did for this group, the applicant said that he played [musical instruments], gave [lessons] and took part in cultural, mainly musical, activities there. The applicant said that recordings and information about his activities were freely available over the internet and that Turkish authorities in Australia and in Turkey would be aware of those activities.
The applicant also said that people in this particular organisation told him that some former members had returned to Turkey and had been interrogated on arrival about their activities for the group. One or two months ago someone from the group was detained in Turkey even though that person was not an active member.[17] He also understood that some friends had approached the Turkish consulate in Australia and officials there showed them photographs saying that they were against the government and to get out.[18]
[17] The representative repeated these claims in submissions of 18 September 2018.
[18] The representative repeated these claims in submissions of 18 September 2018.
At the hearing, the representative submitted that the applicant [participated in musical activities] for this particular group and videos of his performances were easily available on the internet. She also submitted that the Turkish authorities in Australia and in Turkey would know his activities for this group and he will suffer harm on that ground on return to Turkey. She repeated these claims in her submissions of 18 September 2018 and enclosed a letter from the Kurdish group in Australia to which the applicant belongs, photographs of the applicant undertaking group activities and a document that appears to show the applicant at a protest in Australia in 2015 related to the Turkish military attacking Kurdish forces in Syria.
The Tribunal accepts that the applicant has undertaken activities for this particular group but, the Tribunal does not consider that these activities amount to expressions of opposition to the Turkish government that would, according to country information referred to above, place those concerned at risk of harm. Apart from his attendance at a protest in 2015, the applicant’s activities relate to Kurdish arts not outright opposition to the Turkish government. The Tribunal does not accept that attendance at that one protest in 2015 equates with a real chance that the applicant will suffer serious harm on return to Turkey.
In addition, there is no credible evidence that Turkish authorities have questioned the applicant’s family members about the applicant’s activities in Australia even though both the applicant and his representative claim that they would be aware of them. The Tribunal is not aware of the particular circumstances of the Turkish nationals the applicant and his representative refer to as having difficulties with the Turkish consulate here and on return to Turkey. Nor is the Tribunal aware of the particular circumstances of Turkish nationals, living in Europe, being arrested on terrorism charges on return to Turkey, as the representative claimed in her submissions of 18 September 2018.
When asked what problems family members have had since he came to Australia (beyond those discussed above in relation to sister 1 and brother 1), the applicant just said that he did not know if they had had any problems because nobody had told him about that and it was difficult to talk about those things over the telephone because calls were being monitored. The applicant said that in June 2018 brother 3 returned to Turkey to visit family. He visited the applicant’s mother and brother 1. When asked if this brother had difficulties with Turkish authorities or anybody else on the return trip, the applicant said ‘No’. For the reasons given above, the Tribunal disbelieves the applicant’s claims about brother 1 and sister 1 and her husband being harmed by Turkish authorities following the attempted coup in 2016. Accordingly, while the applicant and his representative claimed that Turkish authorities are aware of what are, essentially, the applicant’s musical activities in Australia, there is no credible evidence that they have questioned family members in Turkey about that.
In her submissions of 18 September 2018 the representative stated that brother 3 is not politically active, but, if the Turkish authorities held adverse interest in the applicant because of his activities in Australia, one could expect that they would question brother 3 about that when he returned to Turkey. The representative also submitted that in a telephone call to his mother, the applicant learned that when brother 1 was detained he was interrogated in detention about the applicant’s political activities in Australia and that was evidence that Turkish authorities know about the applicant’s activities in Australia and held adverse interest in him because of those activities. The Tribunal rejects that claim because the applicant himself made no such claim at the hearing even though he was questioned closely about his brother’s detention and also about why he believed his activities in Australia placed him at risk in Turkey.
For all of the reasons given above, the Tribunal infers that the risk of the applicant suffering serious harm in Turkey because of these particular activities in Australia is remote. The representative also claimed in her submissions of 18 September 2018 that the cultural activities undertaken by the applicant in Australia are all forbidden in Turkey. She did not provide country information to substantiate that claim. In its country information reports on Turkey, DFAT gives a comprehensive assessment of the treatment of Kurds in Turkey and makes no mention of any such restriction as claimed by the representative.[19] If the applicant was to undertake his cultural activities on return to Turkey the risk of him suffering serious harm for doing so is remote.
[19] See DFAT Country Information Report Turkey, 9 October 2018, 3.2 – 3.10; DFAT, Country Information Report Turkey, dated 5 September 2016, 4.4 – 4.21.
To the Department the applicant complained about being unable to visit the grave of his father, who passed away in 2001, due to the risk of vehicles being stopped on the road by gunmen. The Tribunal has considered this claim but does not consider that being prevented from accessing his father’s grave due to danger travelling on roads amounts to serious harm. To the Department the applicant also submitted country information related to abuse of conscripts in the Turkish army; an attack on an Alevi Kurdish soccer player who had publicly expressed support for Kurds fighting in Syria and a page containing what appear to be submissions from the applicant himself asserting that Alevi’s and Kurds suffer discrimination.
The Tribunal has carefully considered this information but it falls well short of demonstrating that there is a real chance that the applicant will suffer serious harm in Turkey on any ground including being an Alevi Kurd. This brief information does not cause the Tribunal to depart from the inferences it draws on the risk of the applicant suffering serious harm based on those aspects of his account the Tribunal finds credible as well as the sources of country information on which the Tribunal relies. In this one-page document the applicant also asserts that people who oppose military service and conscientious objectors can expect prison sentences.
The applicant did not claim to the Tribunal to be a conscientious objector or to object to military service on any such ground. Because he is not a witness of truth, the Tribunal has no credible evidence that the applicant is a conscientious objector. The Tribunal understood his evidence to be that he did not want to perform military service in fear that he would suffer serious harm for being an Alevi Kurd. Accordingly, for all of those reasons, the Tribunal rejects a claim made by the representative in her submissions of 18 September 2018 that the applicant was a conscientious objector on the basis that he would not join the military because it had killed Kurdish civilians. For all of the reasons given above, the Tribunal finds that the risk of the applicant suffering serious harm on the basis that he is eligible to perform military service is remote.
To the Department, the applicant also submitted a report dated 1 June 2015 from a person described as an ‘Accredited Mental Health Care Practitioner and Counsellor’.[20] This person records claims made by the applicant about the harm he claims to have suffered in Turkey based on being an Alevi Kurd. This person records the applicant displaying symptoms of anxiety at the possibility of having to return to Turkey. The applicant was diagnosed as having ‘reactive mild to moderate depression and anxiety as part of his Post Traumatic Stress disorder’. The mental health practitioner states that this is a reaction to his immigration status and uncertainty about returning to Turkey.
[20] See folios 97-101 of the Department file.
The mental health practitioner is not in a position to assess the credibility of the claims the applicant makes about events that he claims occurred in Turkey. Accordingly, while this mental health practitioner assesses the applicant as having a particular mental condition, there is no credible evidence before the Tribunal as to the cause of that. In line with the findings of the mental health practitioner it could well be that with the applicant’s immigration status in Australia resolved and on reunion with family in Turkey, his mental state as assessed will be resolved. The mental health practitioner also makes assertions about the treatment of Alevi’s in Turkey. The Tribunal prefers the sources of country information on which it relies over these broad assertions.
Following the conclusion of the Tribunal hearing, the Tribunal provided the applicant with DFAT Country Information Report Turkey 9 October 2018 and invited him to comment. By letter dated 18 December 2018 the representative made submissions in response. The representative submitted that the activities undertaken by the applicant with the Kurdish group in Australia equate with pro-Kurdish political activism. For the reasons given above, with respect to the applicant’s activities in Australia, the Tribunal finds that the risk of him suffering serious harm in Turkey is remote and those activities do not equate with political activism which, according to the country information discussed above, poses risk to the safety of those concerned.
The representative provides details of four individuals whom it is claimed were involved with the applicant’s group in Australia and were all apprehended on return to Turkey and accused of promoting the PKK on a social media website. The Tribunal is not aware of the precise circumstances of these individuals and why they were apprehended. The applicant did not claim to have engaged in any form of Kurdish activism over social media. The representative repeats claims that have already been made about people from this group also having difficulties with a Turkish consul office in Australia. Again the Tribunal is not aware of the precise circumstances of these people. With respect to all of these claims, the Tribunal repeats its finding that it has no credible evidence that Turkish officials hold an adverse interest in the applicant due to his activities in Australia.
The representative again claims that the cultural activities undertaken by the applicant are all forbidden in Turkey but provides no country information demonstrating that this is the case. Similarly, the representative repeated a claim about the applicant being a conscientious objector who will not perform military service. The applicant made no claim to the Tribunal that he was a conscientious objector and the representative’s submission is rejected. The representative then repeated claims about Kurdish soldiers being targets of harm performing military service, but, country information set out above does not support that assertion.
The representative then claimed that the applicant, as a failed asylum seeker who has undertaken cultural activities in Australia, will come to the attention of the authorities, a claim said to be supported through officials questioning brother 1 in Turkey about the applicant’s activities here. For the reasons given above, the Tribunal disbelieves these claims and finds the risk of the applicant suffering serious harm on return to Turkey from Australia, including as someone who has sought protection here, because of his activities in Australia, is remote.
The representative then repeated claims about Alevi’s suffering discrimination from society and officials but this does not cause the Tribunal to depart from the country information discussed earlier in this decision on which the Tribunal finds that the risk of the applicant suffering serious harm for being Alevi is remote. The representative also claimed that Kurds suffer discrimination but the Tribunal is not satisfied that the harm suffered by the applicant and his family, which the Tribunal accepts as credible, amounts to persecution nor is the Tribunal satisfied that there is a real chance the applicant will suffer serious harm because he is Kurdish. The representative referred to the action taken by the government in response to the coup of 2016 but then went on to the same claims made about harm suffered by different family members after the applicant came to Australia, claims, for the reasons given above, the Tribunal disbelieves.
The representative also repeated a claim earlier made about the family constantly changing address because they are Kurdish. For the reasons given above, the Tribunal rejects that claim and finds that this is also just part of the overall embellishment on the part of the applicant in relation to the experiences of him and his family in Turkey based on their ethnicity and being Alevi. Overall, the Tribunal has carefully considered the submissions made by the representative but they do not cause the Tribunal to depart from the findings it expresses above as to the grounds on which the applicant claims protection.
For the sake of completeness, the Tribunal records that, in her submissions of 18 September 2018, the representative stated that the applicant was self-employed in Australia and she provided a letter from his accountants and his tax return in relation to that claim. The representative did not make any claim that this placed the applicant at risk of harm in Turkey nor does any such claim arise from this evidence.
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 the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Turkey, the Tribunal also finds that there is not a real risk that he will suffer significant harm there. Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, Turkey, there is a real risk that he will suffer significant harm.
CONCLUSIONS
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Paul Millar
Member

[2018] AATA 5653

19 December 2018

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