1509826 (Refugee)

1509826 (Refugee) [2019] AATA 5741 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509826
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Jane Marquard
DATE:30 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 April 2019 at 7:31am
CATCHWORDS

REFUGEE – protection visa – Turkey – religion – Alevi – interfaith marriage – imputed political opinion – imputed Fethullah Gulen member – particular social group – association with Fethullah Gulenist movement – child attended religious school – threats from ex-wife's family and Turkish authority – identifiable tattoos – fear of monitoring and detention – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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
OVERVIEW

The applicant is a citizen of Turkey. He first arrived in Australia [in] May 2008 as the holder of a [temporary] visa. He departed [in] August 2008. He next arrived in Australia [in] April 2009 as the holder of a [temporary] visa with his wife and [daughters].
He was granted a further [temporary] visa on 19 November 2010. On 6 June 2011 he was granted a[temporary] visa for his daughter,[Ms A]. On 23 December 2011 he applied for a [temporary] visa but it was found to be invalid because of the 8534 ‘no further application’ condition on his [temporary] visa. He was unlawful from 31 December 2011 until 24 January 2012 when he was granted a bridging visa. On 24 January 2012 he lodged an application for another [temporary] visa which was refused and this decision was affirmed by the Migration Review Tribunal on 20 September 2013.
[In] February 2012 the applicant married an Australian citizen, [Ms B].
He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 18 February 2014. A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visa on 23 June 2015. This is a review of that decision, by the Administrative Appeals Tribunal (the Tribunal).
In summary the applicant claims to fear harm from his ex-wife’s family and the Turkish government on the basis of his Alevi religion. He also claims that his ex-wife’s family will harm him because he is now divorced from his ex-wife. Further, he claims to fear harm from the Turkish authorities because of associations with the Gulenist movement.
The Tribunal must determine whether the applicant meets the refugee criterion or complementary protection criterion. A summary of the relevant law is set out in Attachment A.
The Tribunal has considerable sympathy for the applicant’s circumstances as he has been living in Australia for 10 years, with two daughters, and is married to a woman who is not in good health. However, on the evidence before it, the Tribunal is not satisfied that the applicant meets the refugee or complementary protection criteria. A summary of the evidence, findings and reasons is set out below.
CLAIMS AND EVIDENCE
The applicant provided evidence in an application to the Department as well as supporting documents, and he also took part in a Departmental interview. The applicant appeared before the Tribunal on 7 November 2018 and 28 March 2019, and provided a number of written documents. His evidence is summarised below:
Evidence before the Department
A summary of the evidence provided by the applicant to the Department in his application forms, and supporting documents, is set out below:
·He has a sister in Australia, and his mother and brother are living in Turkey.
·He travelled to Australia to improve his English.
·He worked [in Occupation 1] before he came to Australia.
·He fears being killed by his ex-wife’s family in Turkey, who have threatened to kill him because he has separated from his ex-wife.
·He also had concerns about leaving his current wife who had been very ill.
·The authorities will not protect him.
He provided a statutory declaration from [Mr C], [a senior member of Centre 1, an Australian Alevi organisation], dated 24 September 2014. [Mr C] stated that he had known [Ms B] for a long time, and that she had been very ill. He noted that her partner and his daughter were caring for [Ms B]. He knew that they were married and lived together way before they were married. A number of other statutory declarations attested to the fact that they are married.
At interview the applicant made additional claims. A summary of his evidence is as follows:
·He was Alevi. This was discovered by his ex-wife’s family after the marriage and they disliked him because of this. His wife’s relatives would ‘mess the house’ and ‘scare us constantly’.
·Three to four weeks after the divorce, threats started being made to him from his ex-wife’s family. His ex-wife’s sister heard the threats and told him. His ex-wife was too scared to answer the telephone because bad things were being said. His ex-wife’s brother did not ring him directly but rang his ex-wife constantly.
·He initially said that he initiated the separation from his wife. Later he said that it was a joint decision. He started living with his new wife in 2012. They married in [2012]. He met her when she was living with his sister in Australia.
·His older daughter lives with him. His younger daughter lives with his ex-wife.
·He fears harm because he is Alevi.
A natural justice letter was sent to the applicant by the Department on 6 May 2015. The Department’s questions and the applicant’s responses are set out below:
·The Department stated that in November 2013 in an interview with the Department the applicant said that both his daughters had lived with him and his new wife since 2010 and that he had full custody. However, at the protection visa interview he said that his youngest daughter lived with his ex-wife. The information also contradicted information in 2013 that his new wife had custody. In response he stated that [in] March 2010 his daughter [Ms A] started living with his new wife. His younger daughter lived with him and his new wife when her mother went away for a few months because of stress-related problems. He and his new wife then applied for custody because they could not contact the ex-wife. But then she returned and did not consent to custody and the younger daughter and his ex-wife have lived together ever since.
·In November 2013 he told a Department officer that he had been living with his new wife for four years. That was inconsistent with information at the protection visa interview where he said that he had been living with his new wife since 2012. In response he said that he separated from his ex-wife in July 2010 and on 15 July 2010 started living with his new wife. He had told the Department that he knew his new wife for four years but the relationship started in 2010.
·He claimed that he divorced in February 2012. However he had entered into a new lease with his ex-wife in [City 1] in November 2013. In response, he said that his name was on the lease because they wanted to help her.
·The Department had information that he had a joint bank account with his ex-wife in December 2013. In response he said that they had established a joint bank account when they came to Australia. By the end of 2009 there was no money in the account, and he assumed it would be closed – he did not know his wife was using it.
·The Department had information that the end of the first marriage was not related to his relationship with his current wife. In response he said that his current wife had nothing to do with the break-up.
·After they separated, his ex-wife told him that she had spoken to her sister who said that their brother would kill her if she went back to Turkey and that she should never ring again.
In a Department file relating to his bridging visa application there is a file note from a Department officer in which the officer states that on 10 February 2014 the applicant telephoned to discuss his immigration intentions. The case officer noted that the applicant said that his wife was [undergoing medical care] so he could not attend the Department interview. He confirmed his address. In the application form for the bridging visa dated 8 January 2014 he stated that he received assistance with his form from his wife.
In the Department file relating to a bridging visa application is a note from a Departmental officer dated 27 November 2013 in which the officer summarises a discussion she had with the applicant. She noted that he said that both daughters had lived with him and his wife since 2010. There was no court order for custody but they had a letter from the ex-wife granting him custody. He lived with his wife for four years but was married in 2012. He provided his addresses. He said that he would apply for a spouse visa once they had enough money. There is also a file note dated 12 December 2013 noting that [Ms B], the applicant’s wife, had attended the clinic in a distressed state that her husband was to be deported advising he supported her, and the children were finding it difficult.
A letter on the Department file from [Mr D], registered psychologist, [named clinic] dated 25 November 2013 stated that the clinic had been treating his new wife for [a medical condition] since 2008. Her stepdaughter, [Ms A], assisted her with home assignments as part of her therapy. She told the psychologist that the applicant provided support, but he noted that ‘the living arrangements are somewhat confusing’.
In a statutory declaration dated 13 February 2012 he said that ‘all children who are not married are required to live at home with both parents in our culture’. He did not mention that he was about to get divorced and remarried or that he feared his wife’s family back home.
Decision of the Department
A copy of the decision by the delegate of the Department dated 23 June 2015 was provided to the Tribunal by the applicant.
The delegate noted the inconsistencies in evidence. He also noted that in December 2013 Departmental officers visited the applicant’s ex-wife’s house early in the morning and the applicant was there, with male clothes in the wardrobe and drying through the house. When asked about this at the Departmental interview, the applicant said that he had gone to see his ex-wife in relation to something to do with his daughter. The delegate noted that he was not working so his signature on the lease would not help his ex-wife. The delegate noted that he used a postal address for his mailing address rather than a residential address although he claimed to live at a suburban address with his new wife.
The delegate was provided with three copies of letters and a doctor’s letter supporting him living at the address but no invoices or other documents, and the originals were not provided. The doctor’s letter only stated that he had seen a marriage certificate. The delegate noted he only provided brief answers when asked about his Alevi faith and no supporting evidence. The delegate noted that he did not make claims in relation to his Alevi faith after arriving in Australia. However the delegate accepted that he was Alevi. The delegate noted that the applicant had remained in Australia for five years before making a protection visa application.
On the basis of all the evidence the delegate was of the view that the applicant and his first wife remained in a spousal relationship and that the marriage with the second wife was contrived in order to obtain financial advantage or a positive visa outcome. The Department was also not satisfied that the applicant met the refugee or complementary protection criteria.
Evidence before the Tribunal
Evidence of the applicant
In submissions provided to the Tribunal on 10 December 2018 the applicant confirmed that he continued to rely on information provided to the Department. In addition to these written submissions, the applicant provided evidence at a hearing on 12 December 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish language. The applicant indicated he was satisfied with the interpreter. The applicant requested that his daughter remain in the room to verify the quality of the interpreter as he claimed he had issues with the interpreter at the Department hearing. The Tribunal granted the request and indicated that she could tell the Tribunal if she believed there were any interpreting issues. The applicant was represented. Also appearing at the hearing were his daughter, [Ms A] and a colleague, Witness Y, in relation to his affiliation with the Fethullah Gulen movement. At the conclusion of the hearing the applicant was asked to provide any further evidence by 21 January 2019, which he later did. A summary of his evidence is set out below.
The applicant claims to fear persecution based on the Alevi religion, his imputed political opinion (as an imputed Fethullan Gulen member), his membership of a particular social group based on a previous Alevi/Sunni interfaith marriage, and his membership of a particular social group, being parents of children attending a Fethullah Gulen school or people associated with Fethullah Gulen members.
He confirmed that he grew up in Denizli, Turkey, with two brothers and one sister. His father has passed away and his mother is elderly. One brother lives in Turkey. The other brother is in [another country]. His sister is in Australia. When he was growing up, his mother was a housewife and his father worked in a government [position]. He has uncles, aunts, cousins and other relatives in different parts of Turkey.
He finished high school in his local area, and worked in different jobs, including in [Occupation 2], and [Occupation 3]. Prior to coming to Australia, he and his friend had a [small business]. When he came to Australia he sold his share to a third party. His former wife was working in [Occupation 4] prior to marriage and ceased working when they got married.
His brother in Turkey works in [Occupation 5] and [Occupation 6]. He lives on acreage. He does not keep in contact with his brother and mother continuously.
He grew up as an Alevi. When asked about what this meant to him, he said that he grew up as a ‘Muslim, normal’, but ‘there is also Alevi, which is a belief’. His father was Alevi and his mother was Sunni. As a child, he practised the Alevi religion. He was asked how he practised it. He said that there is not much difference between the two religions. He said that there is ‘some difference in the prayer and their prophet is Ali. ‘The Sunnis go to mosques and the Alevis go to cemevi.’ His mother practised the Sunni religion. He attended a small cemevi in his neighbourhood. Twice a month they would travel to bigger cemevis a few hours away. The imams would do prayers and talks. Asked to describe what takes place in a cemevi, he said that there are talks about Alevis, reading books and having meals. Asked who conducts the proceedings, he said that it would be the head of the cemevi. Sometimes there would be people from other cities. Asked if there was a particular name for those who conducted the practice, he said they are called ‘dede’, or grandchildren of the prophets. Asked if there is specific music or dance at a cemevi, he said that there is religious music, with people dancing in the middle of a circle. Asked if the musician had a particular name, he said that it was usual for a person who dances in the middle to sing. They play ‘saz’, an instrument and the form of singing is ‘deyes’. Asked if the dance had a particular name, he said that it is folk dance, but he did not know the name.
He said that although his mother was Sunni, he did not practise Ramadan as Alevis ‘do it differently’. They do not follow Ramadan. He was asked in what other ways Alevis differ from being Sunni. He said that they do not go to the mosque. Asked if there were other differences he said that in Australia he has seen Alevis go to mosque on Eid but not other times.
He said that there were events for Alevi political organisations in big towns but in the smaller places. He has attended a cemevi in Australia. He has recently moved to [City 2] so does not know the environment, or where to go. Prior to that he was living in [City 1] and he attended a [cemevi] some Sundays for half a day. Asked how many people attended each week, he said that it changed, and he did not ‘see others’. Asked if it was roughly 20 or 50, he said that there were a lot of people, maybe about 100 people. He was asked if there were other activities which took place at the cemevi. He said that there were no specific days and the dede, [Mr C], would tell people there would be semah the next day.
Asked if he suffered any harm in Turkey on the basis of his Alevi religion, he said that he did not before he was married, but problems occurred after the marriage with his brother-in-law, who was a religious Sunni and ‘against Alevis’. In written submissions to the Tribunal he claimed that his ex-wife’s brother and [Relative 1] are devout and strict Sunni. They are both ‘well regarded’ and hold positions of leadership as Hoca or religious followers. They have administered sanctions, threats and physical abuse and punishment on people in their village who did not adhere to the strict followings and teachings of the Sunni faith. His ex-wife’s [Relative 1] was responsible for killing [a village member] and jailed for [number] years. Following his release he went on to kill the son of the same [person]. Her family are well known in the area for enforcing their threats on others.
In these submissions he stated that his daughter was born in [year] shortly after the wedding. She was not brought up as a strict Sunni and in about 1996 pressure from his brother escalated because he was not bringing up the children as strict Sunnis. His second daughter was born in [year]. Over the ensuing years he received numerous verbal and physical threats with increasing frequency and strength. His brother-in-law and a group of his Sunni friends would sometimes leave threatening notes and verbally and physically attack him, sometimes while he was at work. He would be forced to run for safety. In about 2007 he was threatened with a knife by a group of Sunni men, including his brother-in-law. He felt desperate and could not relocate and felt the police would not help because he is Alevi.
At the Tribunal hearing he said that he met his ex-wife in Turkey, ‘somewhere like shopping’. They married in a short period, within one month. Asked if it was usual for couples to get married so soon after meeting, he said that it depends on the couple. Asked if it was customary for the man to ask the family of the wife for her hand, he said that he asked his former wife’s mother, as her father had passed away. Her sisters were present. Her brother arrived later when they were talking. When asking for the hand of marriage from her mothers and sisters, her family did not ask about him being Alevi, and he did not mention it. His ex-wife’s mother was old and uneducated and did not have problems with Alevi people. Asked if he and his ex-wife did not think it was important to mention belief, as it would be an important issue, he said that they did talk and it was not a problem. He said that he did not think of it as an issue as he and his wife had no problem with it. Asked if his former wife did not think it would be a problem with her family that needed to be discussed, he said that she knew that it would be only her brother that would cause problems. Her brother came into the discussions later that day, and he did not talk much. Her brother did not know that the applicant was Alevi. Asked if it was not easy for her brother to find out that he was Alevi, he said ‘of course’. However, he did not know if his brother-in-law had seen him going to a cemevi. They had flags at their house of the prophet and her brother came to know, and said that Alevis did not have a religion. The Tribunal asked why they did not discuss the Alevism with him when he asked for his ex-wife’s hand in marriage; he said that maybe because her brother would not let them get married. However it is common for Alevis and Sunnis to get married. Alevi/Sunni marriages are everywhere.

He was asked when he let his ex-wife’s sisters and mother know he was Alevi. He said that he did not say anything, but his wife did. The sisters and mother did not think it was a problem. He said her brother found out before the wedding. His former wife did not tell him that her brother knew. They hired a wedding venue and had a big wedding. His ex-wife’s mother and sisters attended, but not her brother. His family also attended. Asked if they had religious celebrations at the wedding, he said that there were not religious features, because both religions were represented. In submissions following the Tribunal hearing, the applicant said that at the time of his wedding, he believed that no-one from his wife’s family knew that he was Alevi. However later he came to understand that his brother-in-law was aware or at least suspicious that he was Alevi. In the submission it was stated that his wife’s mother was unaware at the wedding that he was Alevi. He said that after the wedding, her brother became aware of the mixed marriage and believed the marriage brought shame on the family. At the second Tribunal hearing it was put to the applicant that he had previously said that his wife had told her mother and sisters before the wedding, but in his submission he stated that they were unaware at the wedding. Further in previous submissions he had said that his former wife did not tell him that her brother knew of his religion, but in the later submission he said that he did not know. He responded to this by saying that the mother and rest of the family were not a threat. The brother was radical and he did investigate before the wedding and find out, but the applicant only found out later that he knew at the wedding. When he found out he became verbally abusive and it was very distressing and put psychological pressure on him. His children were under pressure in Turkey, and he wanted to get them out of there.
The applicant and his ex-wife lived in Turkey from 1992 to 2008. After he was married he worked in [a business]. They brought up their children without religion. The children do not now practise either the Sunni or Alevi religions and are free to practise any religion.
He was asked when he first knew that his brother-in-law had a problem with him being Alevi. He said that after the marriage his brother-in-law was cold and hostile, and would not talk to him. This increased over time. Asked if he ever suffered any harm from his brother-in-law, he said that he would come home late, and his brother-in-law, along with five or six people, would ‘cut him off returning home’. He was asked how many times this took place. He said it was happening ‘continuously’. Sometimes his brother-in-law would [visit him at work]. Asked if this happened less than five times or more than five or ten times, he said that it happened irregularly. Asked about how many times in total he said that it happened every day, morning and evening, the whole time during his marriage, escalating in 1996. He did not tell his family as they would be scared. The Tribunal asked him how he managed to live in Turkey from 1992 to 2008 without suffering any harm. He said that he lived with fear, and even if he went to another city her brother would be able to harm him. In submissions provided after the second Tribunal hearing, he said that his brother-in-law was the leader of a small group of men who were ‘relentless in their attacks’ on the applicant. There were verbal and physical attacks and on one occasion he was stabbed with a knife.
The Tribunal asked the applicant if his brother-in-law would be pleased now that his sister was not married to him, if his brother-in-law had opposed the marriage. He said that his brother-in-law can ‘taunt’ his sister by saying ‘see what happened when you marry an Alevi’. In submissions he claimed that the divorce exacerbated threats to him from her family. They believe she has been dishonoured. He said that Turkey is not a free country and his ex-wife will be ‘looked down on’. The Tribunal put to him that it appears as if the chance of harm is minimal given that a long time has passed, and he is now divorced. He said that if he goes back he will be uncomfortable, and under attack from her brother. It will be worse as there is currently increased pressure on Alevis. He was asked why he could not move away from the area where her brother lives, as he is employable, no longer married to his sister, and he has said he has relatives in other states. He said that his relatives are in small villages around his own villages and not big cities. He said that Alevis are mistreated.
He said that after he came to Australia for the first time in 2008, he spoke to an agent about bringing his family to Australia ‘to save them’ from the brother-in-law. He returned to Turkey and then came back a year later in 2009. He applied for his wife and children to come to Australia as dependents. On their arrival in April 2009 he remained in [Suburb 1] while his family found accommodation [in another city], where they resided with another family. He joined them when the other family moved out. One year later he and his wife separated. He claimed that the relationship broke down in 2010 due to financial pressures and a mistrust of his sister who used all their money.
Their daughter has been the carer for his current wife, [Ms B] who has [a medical condition]. He moved in with [Ms B] [in City 1] with his eldest daughter. They resided there for about 12 months before moving to [another address in City 1] where they resided for four years. During this time his wife struggled with [health] issues. So his youngest daughter resided with him for about 12 months. [In] January 2012 he divorced his wife and [in] February 2012 he married [Ms B]. In 2013, when Departmental officers visited his ex-wife’s house, his clothes were there as he had left clothes there and she used them as work clothes to pick fruit. He is not in a spousal relationship with his former wife. He moved in with [Ms B] in 2010 and was not added to her lease or bills. This continues to be the case as she was able to establish a track-record with utility companies.
Further, he had visited to speak to her about their daughter’s schooling. In 2017 the applicant, his eldest daughter and [Ms B] resided in [City 1] then [City 2], where they currently live. His youngest daughter lives with her mother in [City 1] but both daughters spend time with both parents. Now his family are happy in Australia. He was asked if he had applied for a spouse visa as he was married to an Australian citizen. He said that the agent changed the numbers in his passport and mistreated them, and it cost them a lot of money.
In submissions to the Tribunal he said that in about [year] he enrolled his daughter in [named] College, a Fethullah based college. School documents were provided to evidence her attendance at the school in [year]. He claimed that he initially spent time with Fethullah Gulen friends in [Suburb 1] when he arrived in Australia. They all participated in informal meetings and discussions regarding Fethullah Gulen. These people fear attending the Tribunal as witnesses because of Turkish government reprisal. He claimed that he is not a fundamentalist Alevi and that his religious beliefs are congruent with his interest in Fethullah Gulen and the way he has raised his children. He does not have a detailed knowledge of Alevism. He claims to fear persecution based on his associations with the Fethullah Gulen movement. He said that the imam of the [City 1] Mosque is a member of [named Department] in Turkey and it is highly probable that the parents and children who attended the school will be known to authorities. The Tribunal asked why he has this fear if his daughter only attended this school for one year, nine years ago and he lived with colleagues associated with Fethullah around that time, so his association with the movement is not strong. He said that in 2009 he went to TAFE and stayed with Fethullah Gulen colleagues. He has had no political involvement.
In submissions following the Tribunal hearing the applicant said that he had a close association with members of the Fethullah Gulen movement. He said that as he spent more and more time with Fethullah Gulen members and attended meetings he came to realise the philosophy of the Fethullah Gulen aligned with his own values and ideals. He sent his daughter to the school because it was Gulenist. It was submitted that if he returned he could not find work as an Alevi and Fethullah Gulen follower. The Tribunal told the applicant that the law requires that it disregard his conduct in Australia unless satisfied that he entered into the conduct other than for bolstering his refugee claim.
The applicant was asked to comment on sources which indicate that although the Turkish authorities monitor Gulenist linked schools, there are no reports of harassment of students or others associated with the schools in Australia. Further there were no reports that students who had attended Gulen linked schools or their parents were arrested or otherwise harmed. He claimed that all the Fethullah members are in prison, and even Australian families who return to Turkey use their Australian passports and have cut their holidays short.
The applicant submitted that he is unable to relocate within Turkey, because he will be monitored and tracked by state authorities through a state enforced registration system and will be easily located. In submissions following the first Tribunal hearing he said that he has no resources to relocate and could not support his Australian wife who has a health issue. Additionally, he claims that his ex-wife and daughter have [tattoos] of Mustafa Kemal Ataturk [which] would mean that they would be seen as symbolically defiant of the authorities and render them subject to monitoring or detention.
On 28 March 2019 a further Tribunal hearing was held as the representative expressed concern that the first hearing was ‘cut short’ because the interpreter had to leave, notwithstanding that he was provided with an opportunity to provide written submissions. At this second hearing, the applicant was asked if there were any matters he wished to discuss or if there was anything he wished to elaborate on, as he had felt that he had a diminished opportunity on the last occasion. He thanked the Tribunal for the opportunity. He said that he has been in Australia for 10 years. He moved to [City 2] two years ago, after living in [City 1] for eight years. He has been through ‘a lot, bringing his family to Australia due to difficult circumstances in Turkey’. When he brought his daughter to Australia he took his daughter to this college and later discovered it was Gulenist. But she had already started studying there. The school used to call him as well and they had lectures and they would talk ‘about religious things’ and they had books and CDs. That was how he found out that there was a connection with Gulenism. The Tribunal put to him that in his submissions it was stated that he sent his daughter to the school because of his interest in Gulenism, but he told the Tribunal at the second hearing that he had no idea the school was Gulenist until after his daughter had started school. He did stay in a house when he first got to Australia and did take part in meetings, but did not know that was part of the Gulenist organisation at that time. He said that Fethullah is not very well known in Australia, but those who are associated with him are imprisoned in Turkey.
He stated that he has no employment or home in Turkey now, so it would be very difficult for him to return there. He wants to live in Australia and get on with his life. His ex-wife’s brother can still cause them problems.
At the second Tribunal hearing the representative thanked the Tribunal for the second hearing. He submitted that the applicant met up with some Fethullah Gulen members when he arrived in Australia. He was not an ardent supporter. Through them his daughter ended up in a Fethullah school. Being in a small community in [City 1] and at a specialised school, the Turkish authorities would understand that she had been enrolled at the school and would impugn a political opinion from that action. The applicant is not a hard line supporter of the Alevi religion. He has allowed his daughters to follow any religion that they want. This is at odds with his former brother-in-law, and has caused his brother-in-law angst. This has resulted in vitriol, communicated to his sister in Australia and that has been passed on to the daughters who have informed the applicant. There have been a number of issues which have evolved since they arrived. The government has become hard line towards people with non-Sunni backgrounds and people with adverse political opinion. The change in the Turkish government’s stance is reflected in comments by the Turkish president following the Christchurch massacre – that anyone who travels to Turkey with an anti-Muslim stance will meet the same fate as the Anzacs. This kind of attitude would make it difficult for the applicant if he returned because of his beliefs. He said that he wants to live freely and independently and not think about the fear and stress that he felt there. In Australia he feels free. He would like to spend the rest of his life in Australia.
Evidence of Witness Y
Witness Y stated that he knows the applicant because he lived with him in [Suburb 1] when he was ‘single’, and their friends introduced them. The applicant stayed with him for a few months. They went to Turkish meetings and festivals together and Gulenist religious discussions. Witness Y is a member of the Fethullah Gulen movement and has been involved since 2002 or 2003. He asked that he not be named because Gulenists are monitored by the Turkish authorities. He has not been back to Turkey in the last few years as he is afraid. He would not have appeared at the Tribunal except for the fact that he likes the applicant. He is still involved with the movement. He said that the applicant attended Gulenist discussions and festivals with him in April to July 2009. They are still friends and friends on Facebook.
Evidence of [Ms B]
[Ms B]is the applicant’s wife. She said that she is an Alevi, and Alevi people are suffering in Turkey. She showed the Tribunal a tattoo on her body of an Alevi [sign]. She said that if the authorities saw this, they would cut her. She is from Corum and she fears returning. She said that she did not see tattoos like this in Turkey. She saw it was available in Australia and asked to be tattooed with this sign, because of her belief. Her sister-in-law law was shot, and her uncle is in gaol in Turkey. The authorities killed three of her cousins. When she communicates with her family she cannot talk properly to them.
Evidence of [Ms A]
[Ms A] is the applicant’s daughter. She told the Tribunal that her father has told the truth. She said that she is currently looking after her stepmother so she is not studying.
Independent country information
The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings below.
FINDINGS AND REASONS
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Findings of fact
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility. The Tribunal accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1]
[1] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
While the Tribunal is not required to accept uncritically any and all claims made, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998):
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Furthermore, Gummow and Hayne JJ observed in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
The Tribunal is guided by these decisions, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings. The Tribunal has also taken into account the Tribunal’s Guidelines on the Assessment of Credibility[2] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[2] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The delegate of the Department was not satisfied that the applicant had separated from his ex-wife, and found that they were still residing together. The Tribunal is satisfied that the applicant and his ex-wife have separated, and that the applicant has re-married, on the basis of the applicant’s oral evidence, the divorce certificate, evidence from friends of the applicant and evidence of the applicant’s new wife. The Tribunal has taken into consideration evidence of [Mr C] that he had known the applicant’s new wife for a long time, that she had been very ill, that she had married the applicant and that the applicant’s daughter was caring for her. A number of other statutory declarations attested to the fact that the applicant had remarried.

The applicant did not inform the Department, when making his claims, that he was Alevi. Notwithstanding this, the Tribunal is satisfied that the applicant is an Alevi although not active in his practise of Alevism. He was able to describe the practices which take place in a cemevi, the name of the relevant prophets, and the leaders, and his descriptions did generally accord with country sources about Alevism.[3] For example he mentioned the dede, the spiritual elder who conducts the cem, and the spiritual dancing of semah.[4] Although not currently attending a cemevi, he has recently moved to [City 2], and did attend a cemevi while living in [City 1], although he was fairly vague about what happened there. He has provided a statutory declaration from [Mr C], [a senior member of Centre 1], dated 24 September 2014. Considering this evidence cumulatively, the Tribunal is satisfied that the applicant is an Alevi.
[3] Alevi Federation of Australia website, Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey, 2018
[4] Alevi Federation of Australia website, >
The Tribunal is not satisfied that the applicant was harmed by his ex-wife’s brother or family members while living in Turkey, or that her family members have threatened to harm him in the future. The reasons for this are as follows. Firstly, when the applicant first applied to the Department for a protection visa, he did not mention that he was threatened or harmed by these family members while living in Turkey for reasons of his religion, nor that he feared harm from them in the future for this reason. As this was the first articulation of his fears about returning, it would have been expected that he would have mentioned that he had such a fear if in fact he held a genuine fear. Secondly, his evidence about the incidents with the brother-in-law has been inconsistent in the various accounts of it. He told the Department that his ex-wife’s family discovered he was Alevi after the marriage and they disliked him because of this. He later said that three to four weeks after the divorce threats started to him from his ex-wife’s family. However he told the Tribunal that the brother found out before the marriage, although his wife did not tell him. He also said it would have been easy for the brother to find out as he had Alevi flags at his house. He also initially told the Tribunal that his wife’s mother knew of his Alevism prior to the wedding, but later he told the Tribunal she found out after the wedding. It would be expected that he would have recalled exactly when his ex-wife’s family found out that he was Alevi, considering this would have been an issue at the wedding, and also because he said harm followed from the knowledge. He also did not mention to the Department that his ex-wife’s brother had inflicted any actual violence. At the first Tribunal hearing when asked if he was ever harmed by her brother, and how he could live there from 1992 to 2008 without experiencing harm, he said that the brother would come with five or six people and cut him off when he was arriving home. He later said that he was physically attacked while at work and once was threatened by a knife. The knife incident was also mentioned in earlier submissions, when he also said that he was under pressure for not bringing up his daughter as a strict Sunni and this resulted in threatening notes and verbal and physical attacks at work. The late entry of this evidence suggests that it has been introduced to bolster the claim. When asked about these inconsistencies, he said that he has spoken continuously of threats from his brother-in-law. He said that he gets stressed and forgets to say things, for example he forgot to say that he was attacked by his brother-in-law with a knife. The Tribunal does accept that stress and anxiety may cause witnesses to provide slightly different versions of events. However where a person has been physically harmed in the past and stabbed with a knife, it would be expected that this information would be provided on the first occasion and consistently to decision-makers assessing harm. The Tribunal is of the view that evidence of the type of harm suffered would have been generally consistent if in fact it did happen. The Tribunal is also not satisfied that the applicant’s family has a propensity for violence, given the late addition of this evidence.
Thirdly, if the applicant had a genuine fear of harm from his ex-wife’s family members it would have been expected that he would have applied for a protection visa at the first available opportunity after arrival in Australia, or once he had settled and had an opportunity to find out information about protection. However he waited for six years before applying.
The Tribunal is satisfied on the basis of school documents provided that the applicant’s daughter attended a school associated with the Gulenist [movement]. The Tribunal also accepts that the applicant stayed with people associated with the Gulenist movement for a few months when he first arrived, as this evidence was supported by Witness Y. However the Tribunal is not satisfied that the applicant has had ongoing involvement with the Gulenist movement since he first arrived or since his daughter was at school in [year]. His representative submitted that he spent more and more time with Fethullah Gulen members after he arrived, and attended meetings and came to realise that the philosophy of the Fethullah Gulen aligned with his own values and ideas, and for this reason sent his daughter to a Gulenist school. However, the applicant confirmed at the second Tribunal hearing that he has not been involved politically and was not an ardent supporter. He confirmed that he took his daughter to the school and only later discovered it was Gulenist. He said that the school would call him and they had lectures and this was how he discovered the connection with Gulenism. He also said that when he first stayed in a house with Gulenist housemates, he was not aware that they were part of the Gulenist organisation at the time.
Nationality
The applicant provided a copy of his passport and gave evidence that he was a citizen of and born in Turkey. It was clear that he was familiar with Turkey, and the Tribunal accepts on the evidence before it including his personal particulars, that he is a citizen of Turkey and that Turkey is the receiving country for the purposes of the legislation.
Does the applicant have a well-founded fear of persecution from his ex-wife’s family because he is separated from her?
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution from his ex-wife’s family because he is separated from her. The Tribunal has not accepted that he was harmed by the family in the past or that they have threatened to harm him in the future for his Alevi religion or because he was separated, or that they have a propensity for violence. The Tribunal is also not satisfied that the ex-wife’s family would harm him because he is separated from her, even if his brother is religious as claimed, given the length of time they have been away from Turkey and their age. Furthermore, as discussed at the Tribunal hearing, divorce is much more common in Turkey than it once was, so there would be less of a stigma attached to it. On the basis of these factors, the Tribunal is not satisfied that there is a real chance of serious harm, rather than one that is remote or speculative[5] from the applicant’s family for any of the Convention reasons.
[5] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution from family members on the basis that he separated from her.
Does the applicant have a well-founded fear of persecution from his ex-wife’s family because of his Alevism?
The Tribunal has not accepted that the applicant suffered harm from his ex-wife’s family in the past or that he has been threatened with harm in the future. While the Tribunal has accepted that the applicant is an Alevi, the Tribunal is not satisfied that there is a real chance of harm from his ex-wife’s family on the basis of his Alevism in the future. The reasons for this are as follows. Firstly, he did not make this claim when he initially articulated his fears for returning to Turkey in his protection visa application. In that application, he said that he feared returning to Turkey because his wife’s family would harm him because he had separated from her. He also said that he travelled to Australia to improve his English language skills. If he had a genuine fear of harm from her family because of his Alevism, it would be expected that he he would have expressed this fear at the earliest opportunity. When it was put to him that his later additions to his evidence may be regarded as an attempt to bolster his refugee claim, he said that it was true what was in the application but the agent told him to say this so he could bring his children away from the threat. He also said that he had documents about his religion with him at the Department interview but was not asked about it. This does not explain why he did not refer to fear of harm from his ex-wife’s family because of his Alevism in his application forms. If he did have a genuine fear of harm from the family because of his Alevism, it would have been expected that this would have been expressed.
Secondly, his evidence before the Department and Tribunal was inconsistent about the past harm, as referred to earlier, which does indicate that the evidence provided was not credible.
Thirdly, the applicant waited for five years before making an application for a protection visa. If he had a genuine fear of harm it would be reasonable to assume that he would have applied at the earliest opportunity, particularly given that he has had interactions with the Department and agents during that time. When the Tribunal discussed this with him, he pointed to poor advice received. It may well be the case that he received some poor advice, but he also did have interactions with the Department and other agents such that it could have been expected that he would have applied if he had a genuine fear of returning.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution from family members for reasons of his religion.
Does the applicant have a well-founded fear of persecution from the authorities or from other members of the community because he is Alevi?
Estimates of the size of the Alevi population vary, but some suggest that Alevis comprise between 25 to 31 per cent of the Turkish population (20 to 30 million); and others suggest the number is closer to 10 to 15 per cent (eight to 12 million).[6] The Turkish state does not recognise Alevism as a separate religion and considers Alevis to be Muslims. Cemevis are not recognised as official places of worship and, unlike mosques, do not receive public funding to support their construction or maintenance.[7]
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey, 9 October 2018
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey, 9 October 2018
The most recent Department of Foreign Affairs and Trade (DFAT) Report, in October 2018, suggests that although the Alevi community suffered significant societal violence in the past, DFAT is not aware of any instances of significant societal violence against the community in recent years. They do refer to occasional negative portrayals in state media, and to low-level societal threats of violence. In April 2017, vandals twice desecrated Alevi tombs and shrines in a Hatay cemetery, after which the government provided additional security and assistance in cleaning up. In September 2017, police arrested three of more than a dozen people involved in attacking the funeral of the mother of a Kurdish Alevi former HDP parliamentarian. Police stopped the attack, and the Minister of Interior personally intervened to facilitate the burial. It is unclear whether the protesters were motivated by religious, ethnic or political grounds. In November 2017, unidentified individuals in Malatya painted red ‘X’ marks on the front doors of 13 Alevi family homes, which led to a police investigation.[8]
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey, 9 October 2018
DFAT concludes that:
Alevis face a low risk of official and societal discrimination. While they do not enjoy the benefits of official recognition as a separate religion, they are generally able to worship freely and participate in most areas of Turkish life (including politics).
The applicant commented on this information by stating that it is all ‘political, but the ‘reality of the news’ is different. For example, he said, on Ashura Day the ‘Ashuras were thrown out. The Sunnis kidnap young girls and kill them’. The Tribunal acknowledges that not all instances of harm against Alevis are reported, and that there are isolated incidents of harm. However, given that there are numerous human rights organisations reporting on the current situation in Turkey, if there was a pattern of serious human rights abuses, there would be reports about this. In the applicant’s case, on the basis of the country information and his own circumstances, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Turkey for reasons of his Alevi religion. As discussed with the applicant at hearing, he did not claim that he suffered any harm from the authorities or community members in the past and the country information does not indicate that there is a real chance of serious harm in the reasonably foreseeable future.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution based on his religion. The Tribunal is not satisfied, for the same reasons, that the applicant has a well-founded fear of persecution because his wife and daughter have Alevi tattoos.
Does the applicant have a well-founded fear of persecution for reasons of political opinion?
The applicant has claimed to fear persecution based on his association and interest in the Gulenist movement in Australia. The Tribunal has accepted that he stayed with housemates who were associated with Gulenism for a few months when he first arrived in Australia. The Tribunal has also accepted that his daughter attended a school in [City 1] associated with the Gulenist movement in [year].
After careful consideration of the country sources the Tribunal is not satisfied that the applicant would face a real chance of serious harm on the basis that he stayed with people associated with Gulenism in 2008 or because his daughter attended a Gulenist school in[year] and he attended school meetings.
There have been ongoing arrests in Turkey of individuals accused of links to the Gulenist movement, including, some foreign students studying in Turkey.[9] In addition, Turkish agents have also reportedly abducted Turkish citizens, including teachers, at Gulenist linked schools abroad, conducting forcible renditions back to Turkey.[10] Following the attempted coup in 2016 the Turkish government closed down Gulenist linked schools and universities in Turkey, and pressured various other countries to shut down such schools in their countries.[11] The Turkish authorities are aware of and monitor Gulenist linked schools in Australia, including Sirius College.¹⁵ In the aftermath of the attempted coup, 100,000 suspected Gulen linked academics and teachers, civil servants and other professionals were fired from their positions, with 48,000 court actions commenced.[12] Prior to the attempted coup, there were over 1,000 Gulenist linked schools and 15 universities in Turkey, with enrolments of around 135,000 and 65,000 students respectively. As discussed with the applicant at the Tribunal hearing however, information indicates that students who had attended Gulenist schools in Turkey have been able to enrol in other schools and were not arrested or harmed, despite the crackdown on the Gulen movement.[13] In this case, the applicant’s daughter attended the school [some] years ago and the applicant attended meetings at the same time. The applicant has claimed that [City 1] is a small town and the imam is a religious man who would have reported the Turkish students who attended the school to the Turkish authorities. The Tribunal accepts that imams have been used by the Turkish government to report on Turkish citizens abroad, however the association with the school was [some] years ago and only for a short period. Given that there have been no repercussions for students within Turkey who have attended these schools, the Tribunal is not satisfied that the applicant would be the subject of adverse attention on the basis that his daughter attended a Gulenist school or he attended school meetings. The Tribunal is also not satisfied that he would be targeted because of living with Gulenists in 2008, given that it was so long ago and for a short time and he has not been an activist or had any deep involvement. Further, reports suggest that no significant stigma has attached to returnee asylum seekers.[14]
[9] Daily Sabah, 48 police serving military officers detained for links to FETÖ, 04 September 2018; Hurriyet Daily News, Foreign students detained over FETÖ links in Turkey's south, 30 June
[10] Al Monitor, Turkey snatches 'Gulenist' teachers in Moldova, 06 September 2018
[11] BBC, Turkey's post-coup crackdown hits 'Gulen schools' worldwide, 16 September 2016, p. 13; ARC Asylum Research, Turkey Country Report - Update November 2017 [3rd edition]
Consultancy, on ecoi.net, 21 November 2017, p. 62
[12] Freedom House, Freedom in the World 2017 – Turkey’, 31 January 2017, p. 4, Hurriyet Daily News, State of emergency ends amid proposal of new anti-terror law, 18 July 2018
[13] BBC, Turkey's post-coup crackdown hits 'Gulen schools' worldwide, 16 September 2016, p. 13; ARC Asylum Research, Turkey Country Report - Update November 2017 [3rd edition]’,
Consultancy, on ecoi.net, 21 November 2017, p. 62
[14] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
Finally, the Tribunal conducted country searches but could not locate any reports to suggest that students who have attended Gulen linked schools, either in Turkey or abroad, or citizens who had attended events at Gulen linked schools overseas, were being arrested or harmed by the Turkish authorities, on return to Turkey.[15]
[15] Sources consulted include the CISNET database; the Google and Yahoo internet search engines; the European Country of Origin Information Network (ECOI); the European Asylum Support Office (EASO) COI Portal; ReliefWeb; the Immigration and Refugee Board of Canada (IRB) and UNHCR Refworld
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of imputed political opinion based on associations with a Gulenist school.
Does the applicant meet the complementary protection criterion?
The Tribunal turns now to the question of whether 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 (the complementary protection criterion): s.36(2)(aa).
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.

The Tribunal has not accepted that the applicant suffered harm or threats from his ex-wife’s family prior to leaving Turkey or that there is any real chance of serious harm for this reason in the future. The reasons for this finding are set out earlier in the decision. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The courts have found that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Turkey there is a real risk of any of the types of harm defined in the Act, from his ex-wife’s family members.
The Tribunal is also not satisfied that there is a real risk of harm on the basis of his Alevi religion, given the country sources discussed earlier. While there may be some low-level discrimination or societal ostracism, the Tribunal is not satisfied that this would amount to significant harm. The Tribunal is not satisfied, on the basis of the country sources, that such harm would include arbitrary deprivation of life, the death penalty or torture.
Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
The Tribunal is not satisfied that negative social attitudes or the fact that cemevis are not registered or Alevis do not receive equal funding to other religions, would amount to severe pain or suffering, or a cruel or inhuman act, or extreme humiliation, as it is described in the legislation.
The Tribunal is not satisfied, given the country information set out earlier in this decision, that there is a real risk that the applicants would be significantly harmed by the authorities because the applicant’s daughter had attended a school associated with the Gulenist movement in [year], and the applicant had attended meetings at the school. The Tribunal is also not satisfied that such a risk exists because the applicant stayed with people associated with the Gulenist movement when he first came to Australia in 2008. Reasons for this are set out earlier in the discussion of ‘real chance’.
The Tribunal is not satisfied therefore, considering the applicant’s circumstances, and country conditions, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia there is a real risk of significant harm.
Concluding paragraphs
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.
Jane Marquard
Member

ATTACHMENT A
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

100. 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’).
101. ‘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.
102. 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
103. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

2018; Anadolu News Agency, 30 PKK terrorists neutralized in 1 week across Turkey, 04
June 2018; Daily Sabah, Dozens detained, 122 face life for links to FETÖ, coup attempt, 24

May 2018

[2019] AATA 5741

30 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Statutory Construction