1509890 (Refugee)

1509890 (Refugee) [2019] AATA 1311 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509890
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 applicants protection visas.
Statement made on 30 April 2019 at 7:46am

CATCHWORDS
REFUGEE – protection visa – Turkey – social group – religion – single divorced woman – Alevi – Sunni Muslim – Fethullah movement – family conflict – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 157
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 first named applicant was born in [year] in Turkey. The second named applicant is her daughter, aged [specified], also born in Turkey.
The applicants travelled to Australia with the first named applicant’s husband and another daughter, [in] April 2009, as the holders of [temporary] visas.
On 6 June 2011 the second named applicant was granted a student visa. This visa was cancelled on 23 January 2014 as guardianship arrangements were not in place. She has not held a substantive visa since this date. On 1 July 2011 the first named applicant was granted a Class TU Subclass 580 (Student Guardian) visa on the basis that she would live with the second named applicant. This visa was cancelled on 18 July 2013 because she was not living with the second named applicant. She was unlawful until she was located by officers from the Department of Immigration (the Department) on 19 December 2013.
The first named applicant was divorced in 2012.
The applicants applied for protection visas under s.65 of the Migration Act 1958 (the Act) on 17 January 2014.
A delegate of the Department refused to grant the applicants the visas 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 persecution in Turkey as a single, divorced woman and because her ex-husband was an Alevi. She also does not want to return to Turkey without her children. At the Tribunal hearing she also raised concerns that she may be targeted as her daughter had attended [School 1], which is associated with the Fethullah movement. After the Tribunal hearing she also raised a fear of harm based on being a ‘lay Sunni Muslim’.
By way of background, Turkey is a modern secular republic, where current president Recep Tayyip Erdogan won recent elections in 2018. To his supporters he has brought economic growth but to his critics he is regarded as autocratic[1] and he has suppressed political dissent. In regards to women’s rights, Turkey has enacted a number of laws to ensure equality between men and women however it lags in implementing the commitments, and gender-based violence is a major concern.[2]
[1] BBC News, Turkey Country Profile, 10 July 2018, United Nations Women, Turkey, >
The Tribunal must determine whether the applicants meet the refugee criteria or complementary protection criteria. A summary of the relevant law is set out in Attachment A.
Although the Tribunal has considerable sympathy for the applicants, as they have made Australia their home for 10 years, and the second named applicant has had a considerable period of her childhood in Australia, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal is not satisfied that the applicants meet the refugee or complementary protection criteria.
A summary of the evidence, findings and reasons for the findings is set out below.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicants’ claims are set out in an application and supporting documents, and in an interview with the Department. A summary of the evidence before the Department is set out below:
·The first named applicant was born in Denizli, Turkey. Her parents are deceased and she has [a number of siblings] still living in Turkey. She attended primary school from [years], but has no further education, and is a housewife. She and her ex-husband came from the same [district] in Denizli.
·She travelled to Australia on her ex-husband’s [temporary] visa. They stayed with her ex-husband’s [sibling]. This [sibling] took their money and mistreated their children. She told her ex-husband about this and they fought and she decided to separate as he did not agree with her. In 2010 they split up and she moved in with her [relative] and he moved in with another woman, [Ms A], who is now his wife.
·She fears returning to Turkey because she is a single, divorced woman with two children and will face harassment and assault from family and other community members. It is not acceptable for a single woman to be without a husband in Turkey. Discrimination and mistreatment is common, and violence against women endemic.
·She also does not want to return to Turkey while her children are in Australia.
·None of her family members in Turkey are speaking to her.
·She has no confidence in authorities in Turkey for protection as they have done little to protect women.
·When asked at an interview by officers of the Department in relation to cancellation of her visa whether there were any reasons she could not return to Turkey she said that she had no one there and did not have a job, so she could not survive.
·She claimed at the Departmental interview, but not in her Department application, that her ex-husband was Alevi and that her family only found out about this after their marriage. After discovering that he was Alevi, they did not like him. Her [siblings] constantly threatened her ex-husband. A few times her family tried to beat her and her husband. After divorce, the threats were worse. Threats were conveyed by her [relative]. She has not been in contact with her [siblings] since she divorced.
A letter was sent by the Department to the applicant containing adverse information and requesting that she provide comments or response. The points raised and her responses are set out below:
·The Department said that she had claimed that she had initiated the separation however the Department had information which contradicted this claim. She said that it was a joint decision for her and her husband to split up although she suggested they break up and he agreed.
·The Department said that it had information that in December 2013 her ex-husband and his wife had full custody of both daughters and both had lived with him since 2010. The Department said that this was consistent with information provided during the interview with the Department in December 2013 but contradicted information at the protection visa interview that the second named applicant had always lived with her, except for one or two months.
·The Department noted that [in] March 2010 she and her ex-husband had signed a statement giving guardianship of the second named applicant to [Ms A], the ex-husband’s new wife. [In] May 2013 the Department of Education and Early Childhood Development advised the Department that the second named applicant was no longer living with the first named applicant. [In] August 2013 the second named applicant advised the Department that she did not know where her parents were residing and said that she had been living with [Ms A] since 2010. The Department said that this contradicted information that the second named applicant had been living with the first named applicant except for a couple of months. She responded that they did sign guardianship papers for [Ms A] to ‘deal with’ her daughter as they did not speak English. Her older daughter [Ms B] went to live with [Ms A] [in] March 2010 and her younger daughter, the second named applicant stayed with them for a few months while the applicant was away. [Ms A] applied for custody, but the applicant returned before it was approved and since then the second named applicant moved back to live with her permanently.
·The Department said that when Departmental officers visited her house her ex-husband was there and there were male clothes in the wardrobe and drying throughout the house, which indicated that he was still living there and his second marriage was not genuine. She responded that her ex-husband was at her house in 2013 when officers visited, as they were talking about their daughter’s schooling. His clothes had been left at her house as he did not take them when they separated and she was wearing them. Her ex-husband is genuinely married to his new wife.
·The Department said that she had started a new lease with her ex-husband in November 2013, although they had divorced [in] February 2012. She said that after they divorced she could not afford rent so he put his name on the lease.
·The Department said that in December 2013 she told Departmental officers that they had a joint bank account in Australia as they both have money in Turkey. She said that when she arrived with her husband they were married and had a joint account. She did not change the account after separation as the car insurance was from that account.
·She had told the Department in December 2013 that she had been doing [work] which was inconsistent with her claims at the interview that she had only done a little [work] when she first came to Australia. She said that she has not changed her statement. She told the officers in 2013 that she did some [work].
·The Department said that she had said that she had not been in contact with her [siblings] in Turkey however the Department had information that she had been in regular contact.
·The second named applicant said that when the Education Department rang her, her mother was out and she did not know where she had gone, and she told them her father was not living with them, and she did not know where he was.
·Evidence of religion was requested, but not provided.
The following documents were provided:
·Divorce order dated [in] January 2012.
·Statutory declarations from the first named applicant.
·Statutory declaration of [a named person] who had known the first named applicant for two years. She stated that when she visited the applicant, she usually saw her daughter there. She believed they had a close relationship.
Departmental decision
A copy of the decision by the delegate of the Department dated 23 June 2015 was provided to the Tribunal by the applicants.
The delegate had ‘serious doubts as to whether the spousal relationship to her husband had ceased’. The delegate found that the applicant and her ex-husband remained in a spousal relationship and that her ex-husband’s relationship with [Ms A] was contrived in order to obtain financial advantage and/or positive visa outcomes.
The Department was not satisfied that the applicants met the refugee or complementary protection criteria.
Evidence before the Tribunal
The applicants appeared before the Tribunal on 29 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish language. The first named applicant indicated that she was satisfied with the interpreter. In submissions following the hearing the applicants expressed a number of concerns about the standard of interpretation, concluding that the integrity of the hearing had been compromised. In light of this the applicants were offered a second hearing. The applicants appeared for a second hearing of the Tribunal on 14 March 2019 and on this occasion the first named applicant said that she was satisfied with the interpreter. She was asked to indicate at any time if there was any problem with the interpretation. The second named applicant, who speaks English and Turkish, was also present at the hearing. A summary of the first named applicant’s evidence from the first hearing was read to her and she was provided with an opportunity to make changes or provide additional submissions. A summary of the evidence provided by the first named applicant to the Tribunal in the two hearings and supporting documents, is set out below:
·She grew up [in] Denizli in Turkey and went to school there. Her father [worked] in the village. She has [a number of siblings], all of whom are still living in the region. Her siblings are all married with children and some have grandchildren. She does not talk to any of her siblings because they opposed her marriage as her partner is Alevi. They are angrier with her now, as she and her ex-husband are separated. Asked why, if they opposed her marriage to her ex-husband, they would not be pleased that she had now divorced him, she said that she did not think they would be pleased. They did not ‘want the marriage since the beginning’. The last time she spoke to a family member was when she spoke to her [sibling] when she was coming to Australia. After she separated from her husband they became angrier with her, and are not talking to her. Even her [sibling] does not talk to her as her brother brainwashes them. Prior to her leaving, her family occasionally spoke to her, because of her mother, but not to her ex-husband. She would visit her mother before she left. But her mother was living with her brother and he would argue with her. Her mother has now passed away.
·She has two daughters. [Ms C], the first named applicant is [age] and [Ms B] is [age]. [Ms C] is living with her in [Town 1] and [Ms B] is living with her father in [City 1]. [Ms C] has not been able to finish school because she does not have the correct visa.
·She has [relatives] in Denizli, but she has not spoken to them since childhood because her family was poor and other family members looked down on them. She only has one [details deleted].
·Her ex-husband came from the city in Denizli. He has an elderly mother and a [sibling] in a nearby city to Denizli, and he has a [sibling] in Australia.
·A relative introduced her to her ex-husband. They did not have a long relationship. They were married in Denizli and had a big wedding. Her mother and her [sibling] were at the wedding but her father had passed away. Her older brother did not attend the wedding as he did not approve of the marriage because of his religious views. He did not spend time with them. She and her ex-husband owned a [business] and her brother came in there sometimes and they would argue. Her brother did not approve of her marriage because he did not view her ex-husband as having ‘an Islamic background’. He pressured her before they married and she took marriage as an escape. Her ex-husband’s religion is Alevi Islam. They had a wedding which celebrated both religions. It did not matter to them as she believes ‘a person is person’. There was ‘nothing specific to the Alevi religion’ celebrated in their wedding. They raised their daughters as normal Australian citizens. They do not practise their religions in Australia. She brought them up as ‘humans’. Asked if her husband practised the Alevi faith in Australia she said that when she was with him, he did not, but she does not know what he does now. His current wife is also Alevi.
·The Tribunal referred to the delegate’s decision in which at interview she said that she had not been in contact with her [siblings] in Turkey however the Department had information that she had been in regular contact. She said that on [social media] she was only in contact with her [relative] in Turkey who is the same age as her daughter. She confirmed that she had not been in contact with her siblings since she has been in Australia. She said that before she came to Australia she talked to her [sibling] but later they ‘had problems’ and they were not on speaking terms.
·She did not work while living in Turkey, but she and her husband had a [business] in [a] village. Asked if she worked there, she said her ex-husband worked there, but she did not.
·She said that she and her ex-husband came to Australia ‘for her children and their education’. In the beginning her husband came to [details deleted]. They came to Australia to educate their children, which was her ex-husband’s idea.
·They had a happy marriage while in Turkey. They came to Australia and broke up a year later. At the second hearing she added that her marriage was compromised because of the pressure her brother put on her. Her ex-husband’s [sibling] took all their money and this caused them to argue. It was ‘hell’ living with his [sibling] for five months, and his [sibling] even ‘bashed her children’.
·Her ex-husband met his new wife one year prior to her arriving, the first time he came to Australia. She met this new wife when she arrived in Australia, and they became friends. They are not friends now, but see each other because her elder daughter is living with her ex-husband and his new wife. She was asked if she knew when her ex-husband married his new wife. She said that she only knows when she got divorced. When put to her that they married on the same day as her divorce, she said that she did not think so but did not know. She was asked why she and her ex-husband did not try and stay together for longer, considering that they had made the serious decision to move to Australia and had two daughters to consider. She said that her husband gave money to his [sibling] and they were fighting. He supported his siblings rather than their children. He was not educated, so did not see what his [sibling] did. His [sibling] even took food she had bought for the children. Her ex-husband was not at home so did not see how the [sibling] was dealing with her.
·She is currently on good terms with her ex-husband for her children’s sake.
·The Tribunal referred to a number of concerns raised by the Department. Firstly, the Department said that it has information that in December 2013 her ex-husband and his wife had full custody of both daughters and both had lived with him since 2010. The Department said that this was consistent with information provided during the interview with the Department in December 2013 but contradicted information at the protection visa interview that the second named applicant had always lived with her, except for one or two months. Asked who had custody, she said they were with her all the time. There was a time when her partner was concerned she was not very good at parenting, and she left the girls behind with him and went to [City 1], but that was only for two to three months. Asked where the girls were living from 2010 onwards, she said that they were living with her. She said after 2012 she lived with her daughter [Ms C], but [Ms C] occasionally visited her father. [Ms B] was living with her father from 2010.
·She was asked how long after April 2009 she and her husband separated and stopped living together. She said that it was in 2011 that they stopped living together but it has been a long time so she cannot remember, but they divorced in 2012. From 2009 until she got divorced [Ms C] was living with her and [Ms B] was with her father.
·The Tribunal also discussed with her a visit by Departmental officers to her house in December 2013. The Department noted that her ex-husband was at her home, and there were male clothes in the wardrobe and drying throughout the house, which indicated to the Department that he was still living there and that his second marriage was not genuine. She said that at that time, he came to visit her with their daughter as she was not very well, and he stayed a couple of days. She said that the Department was trying to suggest she was lying but she is not. Her friend picked him up. At the second Tribunal hearing she said that he came to see her because her daughter could not go to school for two months, so she invited him to come to her house to discuss this. There were not too many clothes drying. The clothes were his clothes, but she was wearing them for [work].
·The third issue the Tribunal discussed with her was that [in] March 2010 she and her ex-husband had signed a statement giving guardianship of their daughter to [Ms A], the ex-husband’s new wife. [In] May 2013 the Department of Education and Early Childhood Development advised the Department that the second named applicant was no longer living with the first named applicant. [In] August 2013 the second named applicant advised the Department that she did not know where her parents were residing and said that she had been living with [Ms A] since 2010. The Department said that this contradicted information that the second named applicant had been living with the first named applicant except for a couple of months. She responded that ‘like she said previously’, she was not well so went to [City 1] and while that was happening, the children were living with her ex-husband. At the second Tribunal hearing she said that they did not have money for schooling, and thought when she signed the guardianship document it was to allow her daughters to have funding for schooling.
·She was asked what she fears about returning to Turkey. She said that Turkey is not a country to be able to live in any longer. She would not be able to live there any more as the number of rapists has increased. She fears sexual violence if she returned to Turkey. At the second Tribunal hearing, she said that she is scared – in Turkey when men look at women, they do not have good intentions. She has ‘no one’ in Turkey, and her family are her enemies. She would have to give her address for electricity and medical services, and her brother could easily find her or shoot her. He has brainwashed her old relatives and friends against her.
·She is also concerned that her daughter attended [School 1] for two years, as the school had Turkish language and her daughter could not speak English initially. [School 1] has ‘had a lot of issues in Turkey’. Children who have been at the school have had problems. She had no documents but she would provide them by 11 September 2018.
·After the Tribunal hearing the first named applicant confirmed that she attended [a] Fethullah Gulen School in [Town 1] [details deleted]. Given that [Town 1] is a small town, she would occasionally spend time with adherents of the Fethullah sect. The imam of the mosque in [Town 1] is a member of [details deleted] in Turkey and it was well known who the parents and students were who attended the school. She said that she fears that her details would be available to the authorities in Turkey. Given the length of time she has been in Australia she fears that she will be looked upon with suspicion and arrested at the airport. Others that have visited Turkey that are associated with the school to a similar level to herself have been questioned in Turkey. She has heard this through friends who have returned. She provided copies of school documents from [year] and [year] from [School 2] for the second named applicant.
·She has other concerns about returning to Turkey. She does not know how she would get a job as a divorcee. She said that she would not be employable as she is over the age of [specified]. However she is more scared about her brother as he has social contacts and he talked continuously about killing her. Even if she was on talking terms with her family, she does not know how they would help her as they cannot provide for themselves. She said that the government would not support them.
·The Tribunal discussed with the applicant the concept of real chance of serious harm for one of the Convention reasons, and asked her why she thought that she would be harmed if she returned to Turkey. She said that she had been explaining her reasons for some time but no one is taking her seriously. She said that she had been ‘messed about’ by the Department. The Tribunal assured her that it was taking the review seriously but asked the questions in order to determine whether she met the criteria in the legislation. She could not go out of the house, as she would be attacked and killed by criminals or her family. Her family told her from the beginning that she should not marry him.
·The Tribunal referred to media sources which suggest that divorce is much more common and acceptable in Turkey than it was in previous years. She said that she would have no support or help and does not know what she would do. She said that she needs to work to give her daughter a future. In submissions provided after hearing, the Tribunal was referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report on comments on violence towards women, and other sources in relation to honour killings.
·She said that she had no idea that her visa had expired. She said that she was treated like a criminal. She was asked why she would not know when her visa expired as it was so important to her and her family, and she had a lawyer. She responded that the lawyer did not assist. At the second Tribunal hearing she said that in reality the visa had not expired, she actually had one more year on it. She learnt on the day that they came to the house that her visa had been cancelled. Her solicitor did not give the information as he had stopped communicating with them.
·The Tribunal discussed with her measures instituted by the Turkish government to improve access to social services for women as well as positive discrimination measures, and legislation to combat high levels of violence against women, even though there were still high levels. She said that there are no proper consequences for perpetrators of violence against women, and even little children are being raped. She said that the Turkish government only look after people who support them and she supports Ataturk so is not on their side.
·She told the Tribunal that her ex-husband’s [sibling] threatened her to say that she would lie to the Department in order to ensure that she could not stay in Australia. She said that the migration agent she had at the Department interview is a friend of her ex-husband’s [sibling], and she fears that she said something to the Department. The applicant did tell the Department at the interview that she had concerns. The [sibling] called the school to tell the school that the second named applicant did not have a visa.
·The Tribunal put to the applicant that she had told the Tribunal that her brother did not approve of her marriage because her husband was Alevi and for this reason he did not attend the wedding. However she told the Department at interview that her family only found out he was Alevi after the wedding. She was asked why there was this inconsistency in evidence. She said that it was definitely not the case that the family found out after the wedding, and she has explained this many times. She said that when she applied for the visa, her lawyer did not use an interpreter. She had a friend who helped and was not good at explaining.
·In a submission provided after the hearing, she said that she had ‘provided evidence’ that she had been threatened by her brother. She said that she was fearful of honour-based violence as he was a Hoca (Religious Scholar/Mollah) and had a strong following in the village. Members of the village would attend the house and seek spiritual guidance from her brother. He made direct threats towards her. In the submission she also stated that her [relative], who was very religious, was also violent and killed a religious leader. He was jailed for [a number of] years, then killed the [relative] of the religious leader. Her family are strong and there is a history of these types of crime. The fact that she is now divorced is irrelevant given her brother’s stance on the marriage. The applicant is from the south of Turkey and continues to uphold conservative family values. The Turkish authorities will not protect her because of the cultural norms. She will also be discriminated against in employment and she does not have access to funds.
·She said that it is another factor in fearing return that her ex-husband is Alevi, as she has heard on the news that many Alevis are being killed. Asked why this would affect her as she is not Alevi, she said that it is not a worry to her. She was asked why anyone would harm her because of her ex-husband’s religion. She said it is not her main concern, which is not being able to work and give her daughter a better future. She would rather die in Australia than be in Turkey. After the age of [specified] she could not find a job. At the second Tribunal hearing, she said that she would be adversely affected by being an Alevi wife. She said that ‘they kill them a lot and do not see them as people’. In submissions after the hearing she said that she is not generally religious and would be suspected of being an Alevi.
·She was asked if her ex-husband practised his religion. She said just ‘very normal’. Asked how he worshipped, she said that he lived like a normal person. Asked if he worshipped she said she would not know. Asked if she saw him worship, she said that he may have worshipped, but she did not see it. Asked if she knew what buildings Alevis worshipped in, she said she did not know. Asked if he followed any other Alevi traditions, she said that ‘in the house’ he did not.
·Asked if he suffered any harm when living in Turkey on the basis of his Alevi faith, she said that her brother constantly argued with him. Asked if she suffered any harm as a consequence of her ex-husband being Alevi, she said that she did not. She said that she suffered harm through her brother.
·Asked why she had told the Department that her family tried to beat her and her ex-husband and threatened them, but she had not provided this information to the Tribunal, she said that on one occasion her brother came into the house and screamed and threatened them. At the second Tribunal hearing she said that once they were both at home, and he shouted at them and was maybe going to beat them but the neighbours came.
·The Tribunal referred her to country information which indicates that Alevis suffer some low-level societal discrimination, but they can practise their religion freely, obtain public sector employment, get government support and there are low levels of violence or public discrimination. Asked to comment on this information, she said that ‘if you look at the current news they are being threatened and assaulted’. She said that this information is kept secret and it is not publicised.
·The Tribunal put to the applicant information about arrests of Gulenist-linked individuals in Turkey, including some foreign students who had been arrested. However the information suggested students who had attended Gulenist schools in Turkey were able to enrol in other schools and were not arrested or harmed. Country sources indicate that no reports were located which indicate that students who have attended Gulen linked schools, either in Turkey or abroad, or who had attended sports or other events at Gulen-linked schools overseas, were being arrested or harmed by the Turkish authorities, on return to Turkey.[3] She was asked to comment. She said that she went to meetings and was enrolled. She said that all the people who attend the meetings had their names taken. They met at different people’s houses each time. They used to meet at [a responsible person’s] house. She was asked when she first attended. She said that she attended after [Ms C] started school. The purpose of the meeting was talking about religion and having religious conversations about teaching. All the parents went to these meetings. She stopped going to the meetings after the school was closed. The last meeting she went to was before the school was closed. She went once a week for two years on Saturday and Sunday, attending about 20 to 30 meetings in total. The [responsible person] ran the meetings. She was asked to tell the Tribunal about some of the things that were discussed. She said that they talked about Islam and were praying five times a day. They were also praying verbally and were reading paragraphs from the Quran. Asked what some of the conversations were about, she said religious matters such as how to wash, and other religious principles. Asked if they were religious meetings she said they also talked about Fethullah. They talked about how Fethullah was a good person and helped the schools. She was asked if she could remember anything else. She said not at the moment. She was asked why she did not tell the Tribunal about attending Fethullah meetings at the first Tribunal hearing. She said it ‘just came to her mind now’.
·She said that [Town 1] is a small town and people have been to Turkey and returned. They will complain about the applicants, and they will be viewed as sympathetic to the Fethullah movement.
·In relation to her claim that she would suffer as a lay Sunni, or due to her connections to Alevis, it was put to her that the most recent DFAT Report from 2018 states that Turkey is a secular country with little problems for non-Sunnis, in fact stating that relations between Sunnis and non-Sunnis are harmonious with little discrimination against non-Sunnis:[4] She was asked to comment. She said that the President keeps the news secret – the media is suppressed.
·The Tribunal asked her why she took so long to apply for a protection visa if she genuinely feared harm in Turkey. She arrived in 2009 and applied in 2014 and during that time had contact with lawyers and the Department of Immigration. She said that she applied to come to Australia once before from Turkey but it was not accepted. She said that she already had a visa so did not think of it, and there was no one to help her.
·The Tribunal put to her that the information about her brother being a Hoca, having a strong following, and the killings by her [relative] was not submitted to the Department despite the fact that the delegate asked her to explain in more detail the fear of her family. She said that it took a long time to process and her childhood was terrible. When she was [young], her [relative] killed [an official] and was in gaol. He was introduced to her when he came home after 10 years. Then he killed the [official’s] [relative].
·She was given the opportunity to provide any elaboration or extra information. She said that before she and her ex-husband were married, her brother was putting pressure on her to cover her hair and to read the Quran. She said that after she got married he started to badger her again, saying he had told her not to marry her ex-husband. Each time she went to see her mother he would argue and slap her. He would not let her mother visit her.
·The representative submitted that the second named applicant attended [a] Gulenist school in [Town 1] [and] this is different to going to a school in [City 1]. The imam in that area is religious and it is well known that the Turkish government has used imams to get information. Further the first named applicant attended religious meetings at the time, at the school. Country sources indicate information about Gulenist schools has been provided to consuls. The latest DFAT Report confirms that students at schools are arrested. It is difficult to get lawyers to assist there. Further, information indicates that families do target family members if the family name is tarnished. Her brother is religious. She will have no support. The second named applicant has been in Australia and will be easily identified as a foreigner.
·The representative submitted that in assessing the applicant’s evidence it should be taken into account that she is ‘a simple lady and quite reserved by nature’. She has not had much education and so some of the inconsistencies may be explainable. The application displays a lack of assistance as she signed off on something when she could not speak English. He said that the second Tribunal hearing provided a better representation of her evidence than the first Tribunal hearing because of the interpreter.
[3] 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.
[4] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
Evidence of second named applicant

The second named applicant did not provide evidence at the Tribunal hearings. She confirmed that she would be relying on the evidence of the first named applicant.
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 assessment section below.
FINDINGS AND REASONS
Nationality/receiving country
The applicants provided copies of their passports and gave evidence that they were born and lived in Turkey. The Tribunal is satisfied on the basis of this evidence that the applicants are citizens of Turkey and that Turkey is the receiving country for the purposes of the legislation.
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’.[5]
[5] 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.
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[6] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[6] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal has also had particular regard to the Tribunal’s Guidelines on Vulnerable Persons,[7] in light of the first named applicant’s evidence that she has had mental health issues, although no medical reports have been provided. The Tribunal accepts that this may affect how the applicant gives evidence, given the particular sensitivities in talking about these matters. Finally, in accordance with submissions by the representative, the Tribunal has taken into account that the first named applicant is ‘simple’ and ‘reserved’ with little education. In examining the evidence she has given, the Tribunal has considered that she may not have provided the kind of details that may be given by a person who has higher education, or is more outgoing.
[7] AAT, Migration and Refugee Division, Guidelines on Vulnerable Persons, available on the AAT Website, >
The Tribunal is satisfied, based on the divorce certificate and the first named applicant’s evidence, that she is divorced and living separately from her ex-husband. Notwithstanding the issues about living arrangements canvassed in the Department’s decision, the Tribunal is satisfied that she and her daughter live together in a separate residence from her ex-husband and their other daughter.
The first named applicant did not refer, in her application for protection, to her ex-husband’s Alevi religion or to a fear of harm from her family because they did not like the Alevi religion or her husband because he was Alevi. She also did not know much about the Alevi religion, such as where her husband worshipped, or whether he practised the religion currently. Notwithstanding this, and taking into account her lack of education, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that her ex-husband was an Alevi.
The Tribunal is not satisfied however that the first named applicant suffered threats or violence from her brother or family members because of his Alevi religion or for any other reason. There are a number of reasons for this finding, considered cumulatively. Firstly, the first named applicant has not always been consistent about the reasons for her fear of her family. As referred to above, in her Department application she said that she feared harassment and assault from family and others because she is single and divorced. She said life for her children was better in Australia, and family members were not speaking to her. She did not refer to violence against her or her ex-husband in Turkey or the Alevi religion. It was only in her interview with the Department that she said that her ex-husband was Alevi and that her family found out about this after the marriage, and did not approve. She then said that her brother constantly threatened them. She claimed that a few times her family tried to beat her and her husband but after divorce, threats were worse. The fact that when first asked to express her fears about returning to Turkey she did not refer to instances of threats from her [siblings] because of her marriage, or to her fear of this if she returned on the basis of her ex-husband’s Alevi religion, does suggest that it was not something that had happened or that she feared. The Tribunal reaches this conclusion even though the first named applicant may be ‘simple’ and ‘reserved’, as claimed by her representative, or that she relied on assistance for her application. As she did make some claims in her application, it is reasonable to assume that she understood the need to state what her fears were. Instead of referring to harm she feared from her family for her husband’s religion on the basis of past harm, she referred to fear of harm as a single divorcee.
Another reason that the Tribunal does not accept that the first named applicant suffered violence or threats from her brother, or fears harm from him and family members if she returns, is that her evidence before the Tribunal was different to the evidence provided to the Department at interview. At the Department interview she said that her family found out about her ex-husband’s Alevism after the marriage. To the Tribunal she said that her family knew that her husband was Alevi prior to the wedding and for this reason her brother did not attend the wedding, however her mother and [other sibling] did attend. She also had conflicting accounts of the harm suffered. She told the Department that her [siblings] tried to beat her and her ex-husband and threatened him, but she did not tell the Tribunal this at the first hearing. She said that on one occasion her brother came into the house and screamed and threatened them. She did not refer to her [other siblings] inflicting harm. At the second Tribunal hearing she said that once they were both at home, and her brother shouted at them and was maybe going to beat them but the neighbours came. She later said that each time she saw her mother her brother would argue with and slap her. However at the Department hearing she said that she suffered no actual harm. At the Tribunal stage, she also introduced evidence about her violent [relative] and her brother being a Hoca. When asked to explain the differing evidence, she said that her first lawyer did not use an interpreter and she had difficulty with the application. This does not explain her evidence at the hearings where she had the benefit of interpreters, and at the Tribunal stage, a different representative. Further, while minor inconsistencies are not key to the credibility of a person’s claims, whether her brother knew of her ex-husband’s religion prior to marriage is a key element of her account and it would be expected that she would be able to recall with some consistency the nature of the harm suffered. The Tribunal has taken into consideration that she is ‘simple’ and ‘uneducated’ as submitted by her representative, but is of the view that as she was able to provide evidence lucidly about some matters, she would also have been able to provide evidence about material events consistently if in fact these events took place.
A third reason that the Tribunal does not accept that she suffered violence or threats from her brother, or fears this if she returns is that, as discussed at hearing, when asked by Departmental officers in relation to cancellation of her student guardian visa if there were any reasons she could not return to Turkey, she said that she did not have a job and could not survive. She did not express fear of returning because of her brother.
Fourthly, the applicants did not apply for a protection visa until 2014 although they arrived in Australia in 2009. If the first named applicant genuinely feared returning to Turkey because of violence from family members it is likely that she would have applied for protection at an earlier stage, particularly as she had contact with the Department and lawyers during this time. Indeed when questioned by the Tribunal, she acknowledged that she and her ex-husband first came to Australia to educate their children, and for her husband to [details deleted]. She also stated that she had no one to help her, and did not think about it. While this may be an explanation for part of the delay, it does not explain fully the significant delay given that she did interact with the Department and representatives.
In summary then, the Tribunal is not satisfied that the first named applicant’s family did not approve of her ex-husband’s religion, or harmed them for this reason, due to the late inclusion of the claim about her fear of her family for this reason, and the inconsistencies about what took place, as well as the late application for the visa. The Tribunal notes submissions by the representative that she had limited language skills and that many of the documents have been provided without her fully understanding the contents or the legal principles behind them. He said that the agent that assisted her with the protection visa application did not use an interpreter and therefore the statutory declaration was basic and did not reflect her fears in detail. The Tribunal accepts that sometimes applications do not describe claims in full detail because applicants are not equipped with the necessary information or skills. However if there is a genuine fear of returning for a particular reason, such as fear of violence from family, it can be expected that this information would be at the very least included in the initial application as it is so material to the claims made, and that information provided about the harm would be made regularly and with overall consistency about its key aspects. Further, given interaction with the Department and agents, it would be expected that people who fear harm would apply for protection as soon as possible.
The Tribunal is not satisfied therefore that the first named applicant suffered harm from family members in the past because of her ex-husband’s religion, or that she has a genuine fear of returning for this reason.
The Tribunal is satisfied that the second named applicant attended [School 2], which is a school associated with the Gulenist movement.[8] The Tribunal is satisfied that she attended in [years] as copies of reports have been provided. The Tribunal is satisfied that due to her daughter’s attendance at the school, the first-named applicant ‘occasionally spent time with members of the Fethullah sect’, as it reasonable to assume that this would be the outcome of a parent of a child at the school. The Tribunal is not satisfied that the first named applicant attended 20 to 30 meetings at the school during that time, where they discussed Gulenist philosophy, as she did not tell the Tribunal about this when the matter was discussed at the first hearing and her recollection of the meetings was very general. The Tribunal is satisfied that she may have attended a few school meetings while her daughter was at school as is usual for a parent.
Does the applicant have a well-founded fear of persecution for reasons of being a woman, single woman, older woman and/or divorcee?
[8] [Source deleted].
The Tribunal is not satisfied that the applicant faces a real chance of serious harm for reasons of her gender, and/or for being a single woman, older woman or divorcee.
The Department of Foreign Affairs and Trade has commented that while cultural and societal gender stereotypes impact on gender equality, women participate in all aspects of society and there are a number of laws in place in Turkey to promote gender equality, including in relation to divorce:
While women participate in all areas of Turkish society, including government, business and civil society, societal, cultural and religious barriers continue to limit that participation. In its July 2016 response to the seventh periodic review of Turkey, CEDAW expressed concern about the persistence of deep-rooted discriminatory stereotypes concerning the roles and responsibilities of women and men in the family and in society. These roles emphasise the traditional role of women as mothers and wives, thereby undermining women’s social status, autonomy, educational opportunities, and professional careers, as well as constituting an underlying cause of gender-based violence against women.
Article 10 of the Constitution states that all individuals are equal without any discrimination before the law, regardless of sex. A May 2004 amendment to Article 10 added a provision stating that women and men have equal rights, and that the state has the obligation to ensure that this equality exists in practice. Women enjoy considerable legal protection in many areas, including on personal safety, participation in the workforce, and mandatory schooling for girls. Marriage, divorce, inheritance, and child custody are regulated by a civil law code that respects gender equality.
Twelve per cent of CEOs in Turkey are female, compared to the OECD average of five per cent. Successive Turkish governments have repealed and reformed provisions of the criminal and civil law codes that discriminated against women to bring them into line with European standards. The AKP government’s removal of headscarf bans in universities and for members of the bureaucracy and the police force has removed an obstacle that previously prevented women and girls from conservative families from gaining access to higher education and participating in public life. The proliferation of internet and social media use has raised the profile and general awareness of issues surrounding gender equality.[9]
[9] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
A report on women in Turkey reinforces the strong commitment Turkey has traditionally had to women’s rights, although implementation has lagged in certain areas:
When the Turkish Republic was founded in 1923, it enacted important legal reforms to ensure equality between women and men in political and civil rights. During the 1980s, a strong women’s movement raised public awareness of violations of women’s rights, especially violence against women.
Turkey ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1985. In the 1990s, gender equality improved in public institutions, universities and civil society.
Laws were passed to eliminate discrimination against women in the 1990s, and a law to protect survivors of domestic violence was enacted in 1998. Starting in 2000, Turkey updated its fundamental laws with respect to gender equality (Constitutional Amendments of 2001, 2004 and 2010, and adoption of a new Civil Code in 2001 and a new Penal Code in 2004).
The first country to sign and ratify the Istanbul Convention on Preventing and Combating Violence and Domestic Violence against Women in 2011 and 2012 respectively, Turkey has passed, in line with its obligations under the Convention, major legislative changes to prevent violence against women.
However, Turkey lags in implementing its national and international gender equality commitments. Women in Turkey continue to face challenges, with gender-based violence a major concern.[10]
[10] United Nations Women, Turkey, >
These sources indicate that divorce is regulated by a civil code based on gender equality, and women have property rights.[11] The first named applicant is on good terms with her ex-husband so there is less opportunity for dispute. Thus the Tribunal is satisfied that she does not have a well-founded fear of persecution from the state or her ex-husband because she is a divorcee. In regards to societal attitudes, as divorce has become more common (divorce rates have risen 82% until 2016)[12] and with social media proliferation, so attitudes to gender equality have become more progressive.[13] One recent article suggests that Turkey is seeing a record number of divorces, even in rural areas and smaller religious towns, with many of these women now having access to education and online information.[14] The Tribunal is not satisfied, based on these and other country reports[15] that there is a real chance of serious harm on the basis of being a divorcee.
[11] PRI’s The World, 20 February 2019, Hurriyet Daily News, Divorce rates in Turkey up 82% in last 10 years, 30 June 2017
[13] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
[14] PRI’s The World, 20 February 2019, For example, Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
The Tribunal accepts that it may be difficult to find work as a single, older woman in Turkey, as is the case in many countries, however the applicant does have family in Turkey who may be able to assist. The Tribunal does not accept that she does not talk to all family members, given that the Tribunal has not accepted that the family had issues with her marriage. She has given evidence that her mother and [siblings] attended her wedding which celebrated both religions and that she has been in touch with a [relative], indicating some family connections.
The Tribunal also does not accept that there is a real chance of violence or sexual violence because of her gender. While the Department of Foreign Affairs and Trade reports that levels of family violence are high, the applicant is not in a relationship such that there are no prospects of domestic violence in the reasonably foreseeable future and the Tribunal has not accepted that the applicant has suffered violence from her family in the past. The Tribunal also does not accept that she will be harmed by her brother or other family members in the reasonably foreseeable future, given that it has not accepted that there was any hostility in the past or that the family has threatened to harm her if she returns. In terms of general violence from males in the society, while rates of violence are high compared to some societies, the Tribunal is not satisfied, based on country sources,[16] that there is a real chance, as opposed to a remote or unforeseeable chance, of such violence for reasons of being a woman, single woman or divorcee. Further, persecution must involve systematic and discriminatory conduct (s.91R(1)(c) of the Act). The Tribunal is not satisfied that generalised crime involves systematic and discriminatory conduct.
[16] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018

The first named applicant has claimed that as she comes from the south, attitudes are more conservative. The Tribunal accepts that she may be subject to some comments or other social ostracism for being a single woman or divorcee[17] or both of these factors, or that she may find it more difficult to find a job because of her age or single or divorced status or for all of these reasons, or that she may suffer some discrimination. The legislators intended that the harm a person suffers reaches the level of ‘serious’ harm. Section 91R(2) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. While these examples are indicative only, and there may be other types of serious harm, the examples do indicate that the legislators intended that the harm be serious. The Tribunal is not satisfied that the outcomes the applicant would suffer from low-level discrimination or social insults would amount to ‘serious’ harm. The Tribunal is also not satisfied that she would become destitute given that she has family support and would be able to access social services. She has [siblings] who are married with children, and said that they had a big wedding, indicating that there was some family support at that time at least. She has spoken of being in contact with a [relative].
[17] See comments in PRI’s The World, 20 February 2019, >
The Tribunal is also not satisfied that the state would withhold state protection from her because she is a woman, divorcee, single woman or older woman. There are laws in place in Turkey which provide for equality before the law. The sources do not suggest that there is a real chance of discriminatory withholding of state protection.[18] As stated above, in any event, the Tribunal has not accepted that there is a real chance of harm from her brother or family members such that the issue of withholding of state protection for honour killings is not relevant.
[18] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
Considering all of these matters, the Tribunal is not satisfied that the first named applicant has a well-founded fear of persecution for reasons of her gender, or for being a single woman, an older woman or a divorcee, either singularly or cumulatively, if she were to return to Turkey in the reasonably foreseeable future.
Does the first named applicant have a well-founded fear of persecution because of her association with her husband who was an Alevi or because she will be regarded as an Alevi?
The Tribunal is not satisfied that the first named applicant would be persecuted as an Alevi because her ex-husband was Alevi. She is no longer married to her husband and does not attend cemevis or Alevi activities. In any event, even if she was regarded as an Alevi, the Tribunal is not satisfied that there would be a real chance of persecution, as country information suggests that there is only a low level of discrimination against Alevis, who are otherwise established and recognised in Turkish society.[19]
[19] Department of Foreign Affairs and Trade, Country Information Report Turkey, 9 October 2018
The Tribunal has not accepted that the applicant was harmed or threatened by her brother before she came to Australia for reasons of her husband’s religion or that he has threatened her since she came to Australia. Even if the brother is religious as claimed, the Tribunal is not satisfied that there is a real chance of serious harm because she was formerly married to an Alevi.
The Tribunal is not satisfied therefore that there is a well-founded fear of persecution for reasons of the Alevi religion if she were to return to Turkey in the reasonably foreseeable future.
Does the first named applicant have a well-founded fear of persecution because she is a ‘lay’ or non-practising Muslim?
The Tribunal is not satisfied that the first named applicant would be persecuted because she is a ‘lay’ or non-practising Muslim. She has not provided evidence of any harm in the past, although this is not definitive. More importantly, country sources indicate that although there is a Muslim majority, Turkey is a secular country with laws to protect religious freedom, and in general there is harmony between Muslims and non-Muslims:
Article 2 of the Constitution defines Turkey as a secular state. Article 10 states that all individuals are equal before the law regardless of their philosophical belief, religion, or sect; Article 15 states that no one may be compelled to reveal his or her religion; and Article 24 guarantees the right to freedom of conscience, religious belief and conviction. The government does not maintain population statistics based on religious identity. Observers concur, however, that the overwhelming majority of Turkish citizens are Muslim, with most (75-80 per cent) being Sunni. The Shi’a Ja’fari community reports that approximately three million Shi’a live in Turkey, predominantly in the eastern provinces. Up to 500,000 Alawites reportedly live in the southern regions neighbouring Syria, particularly Hatay province (this number does not include Syrian Alawite refugees who have fled to Turkey since 2011). Relations in Turkey between Muslim communities (Sunni and non-Sunni) have generally been harmonious, without the sectarian divides experienced in other countries. Some community leaders have expressed concern that tensions between the Turkish and Syrian governments over the Syrian civil war, combined with hostile rhetoric, may lead to increased tension between Sunni and Alawites in particular. This concern has not been realised to date. President Erdogan publicly blamed the Alawite Syrian regime for a double car bombing in Hatay in May 2013 that killed at least 43 and wounded many more. DFAT is not aware of any recent cases in which tensions over Syria have led to significant incidents of sectarian violence between Sunni and non-Sunni Muslims. DFAT assesses that non-Sunni Muslims (excluding Alevis) do not face significant official or societal discrimination on the grounds of religion.[20]
[20] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
The Tribunal is not satisfied therefore that the first named applicant has a well-founded fear of persecution for reasons of being a lay Muslim, if she were to return to Turkey in the reasonably foreseeable future.
Do the applicants have a well-founded fear of persecution because the second named applicant attended a school associated with the Gulenist movement and the first named applicant attended school meetings?
The Tribunal is not satisfied, after careful consideration of independent sources, that the second named applicant would face a real chance of serious harm for reasons of the fact that she attended a school associated with the Gulen movement in [years], or had associations with people connected to the school. The Tribunal is also not satisfied that the first named applicant would face serious harm for attending Gulenist school meetings or associating with Fethullah followers at that time.
There have been ongoing arrests in Turkey of individuals accused of having links to the Gulenist movement, including some foreign students studying in Turkey.[21] In addition, Turkish agents have also reportedly abducted Turkish citizens, including teachers at Gulenist linked schools abroad, conducting forcible renditions back to Turkey.[22] 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.[23] 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.[24] 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 applicants 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.[25] In this case, the second named applicant attended the school nine years ago and the first named applicant attended meetings at the same time, but not after that time. The applicants have claimed that [Town 1] is a small town and the imam is a religious man who would have reported back on Turkish students who attended the school. 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 nine 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 applicants would be the subject of adverse attention on this basis, even if they were monitored by the imam at the time. As is the case with many students, the first named applicant confirmed that they chose the school for language reasons. The Tribunal is also not satisfied that they would be targeted at the airport simply because they have lived outside Turkey for so long, given that reports suggest that no significant stigma has attached to returnee asylum seekers and they have not been actively involved with the Gulen movement.[26]
[21] 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
[22] Al Monitor, Turkey snatches ‘Gulenist’ teachers in Moldova, 06 September 2018
[23] 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
[24] 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
[25] 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
[26] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
No reports were located which indicate that students who have attended Gulen-linked schools, either in Turkey or abroad, or who had attended events at Gulen-linked schools overseas, were being arrested or harmed by the Turkish authorities, on return to Turkey.[27]
[27] 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 applicants have a well-founded fear of persecution for reasons of imputed political opinion based on associations with a Gulenist school.
Does the applicant have a well-founded fear of persecution in that the state would withhold state protection from her as she does not support them?
In a passing comment at the Tribunal hearing, the first named applicant suggested she could not claim state protection as she does not support the government. While it was not specifically claimed that she fears persecution for this reason, the Tribunal has considered whether there is a well-founded fear of persecution for this reason.
Country sources indicate that although Turkey is a democracy, political activists may be subject to adverse attention from the authorities.[28] The applicant has not claimed that she was a political activist or, in fact, involved in any kind of political activity.
[28] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution based on discriminatory withholding of state protection as it is not satisfied that she would come to the adverse attention of authorities.
Complementary protection
The Tribunal turns now to the question of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Turkey, there is a real risk that they will suffer significant harm (the complementary protection criteria): s 36(2)(aa) of the Act.
‘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 first named applicant suffered harm or threats from her 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 Refugees 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 family members.
The Tribunal is also not satisfied that there is a real risk of harm on the basis that the first named applicant’s ex-husband was Alevi, given the country sources discussed earlier, and the fact that the first named applicant is now divorced from her ex-husband. Further, on the basis of country sources the Tribunal is not satisfied that there is a real risk of harm on the basis that she is a lay Muslim.
The Tribunal has considered carefully whether there is a real risk of significant harm in the form of becoming destitute, or from societal violence, because the first named applicant is a woman, a single woman, an older woman or a divorcee or for any other reason. The Tribunal has earlier referred to independent sources which refer to steps the Turkish government has taken to legislate for gender equality, although there are still problems in implementation. The first named applicant may find it difficult to find work. However the harm she may suffer would not fall within the definition of significant harm as it would not be the result of an intentional act. ‘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. The pain or suffering must be intentionally inflicted. Similarly, degrading treatment or punishment requires intention. Economic hardship would be caused by generalised societal and economic factors rather than being intentionally inflicted.
While rates of violence against women are high compared to some societies, the Tribunal is not satisfied, based on country sources,[29] given that crime is opportunistic and random, that there is a real risk, as opposed to a remote or unforeseeable risk, of such violence. Furthermore, 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 include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. Risk of crime is one faced by the population generally and not the applicant personally.
[29] Department of Foreign Affairs and Trade, DFAT Country Report Turkey, 9 October 2018
The Tribunal is satisfied that the applicant might face some negative societal attitudes or discrimination for being a divorcee, noting however that divorce has become more common and accepted in Turkey. The Tribunal is not satisfied that such societal ostracism or discrimination would amount to significant harm 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 second named applicant had attended a school associated with the Gulenist movement in [years], and the first named applicant had attended meetings or associated with individuals at the school.
The Tribunal is not satisfied, considering the applicants’ circumstances, and country conditions, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Turkey there is a real risk of significant harm.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children.

2018; Anadolu News Agency, 30 PKK terrorists neutralized in 1 week across Turkey, 04
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May 2018

[2019] AATA 1311

30 April 2019

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