1510025 (Refugee)

[2017] AATA 980

1510025 (Refugee) [2017] AATA 980 (30 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510025

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Tania Flood

DATE:30 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 30 May 2017 at 2:16pm

CATCHWORDS
Refugee – Protection visa – Turkey – Particular social group – Homosexual – Family expectations to marry – Military service – Conscientious objector – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Turkey, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] June 2015.

3. The applicant appeared before the Tribunal on 15 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   THE LAW

5. 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.

6. 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).

7. 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.

8. 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Turkey for reason of his sexuality or alternatively whether there are substantial grounds for believing there is a real risk he will suffer significant harm if he is removed from Australia to Turkey.   For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In a written statement of claims the applicant states the following:

12. He is [from] a Turkish family with [number] children.  His parents are originally from Konya which is known to be one of the most religiously fanatic cities of Turkey.  His parents settled in [town] in [year] and have been living there ever since.  His sister is married and living in [the same town] with her [family].

13. He is the only male child and his father also has no brother.  He was brought up as the male person who would retain the family surname. 

14. He was unaware of his gay feelings until he was 13 or 14 years old.  He realised he was different to other male friends at junior high school.  He was scared to mention this to anyone and he was withdrawn at school.

15. In high school he started having problems because he did not get involved in male groups.  His friends made jokes about gays and used insulting words.  Even at 16 years of age he was still scared to talk about his feelings.

16. After high school he started working as [an occupation] in a business owned and run by his [relatives].  His parents wanted him to do his military service and marry.  They were expecting him to marry and have children.

17. In 2003 he met a friend on the internet.  He was gay and had similar experiences to him.  He was 25 and living in Istanbul with his parents.  When his friend told him what he experienced in the army he was terrified.  His friend suggested he postpone his military service for a few years by saying he was planning to undertake tertiary studies.  He applied for deferment of his military service which was accepted. 

18. In 2006 he sat a university selection test and enrolled in [a course].  He was able continue with work and study as he was not required to attend class. 

19. In 2008 he came under heavy pressure from his parents to have children.  He told them he wanted to finish his university studies.  His father was prepared to continue providing financial support for him to finish his studies if he got married.  He had to do something to prevent marriage and military service.

20. He decided to pursue English and tertiary studies in Australia.  He convinced his father that English would be essential to work in foreign trade.  In January 2009 he was granted a student visa and he arrived to Australia [in] January 2009 and commenced an English course.

21. While exploring the [city] he went to [a named location].  He was still uncomfortable and was just observing the freedom of gays and lesbians.  He spent his free time in clubs and pubs [in that location].

22. He finished his English course in early 2010 and was expecting to be accepted into University but his subsequent student visa was unsuccessful.  He applied for a review of the decision and while awaiting the outcome of his application he started attending gay clubs and pubs more often.  He had some short term relationships.  He became confident to disclose his sexual preference and attended [gay events] since 2009.

23. His case was heard by the MRT in 2012 and the decision was remitted.  He then enrolled in [a] course.  He travelled back to Turkey in 2012 for 5 weeks. 

24. He continued studying for about six months until March 2013 when he decided to change his course to [a different subject].  In late 2013 his father told him that he had arranged his marriage to the daughter of a distant relative and commenced preparations for his engagement.  His father said he would complete his military service and marry the girl.  He felt unwell because he couldn’t tell him he was gay.  He started being fearful of serving in the Turkish army.  He was unable to concentrate on his studies.  In late April he found out he could apply for protection from the Australian government on the grounds of his sexual preference. 

25. He is scared to return to Turkey because his father and his relatives will harm him if he tells them he is gay.  He is also scared of being persecuted in the army.  He cannot adapt to a life where he has to hide his sexual preference for the rest of his life. He will also suffer financially because working as a gay is almost impossible in Turkey. 

26. In an interview with the Delegate held [in] October 2014 the applicant stated that he had a few gay encounters in Turkey.  Once he had a relationship for about three to four weeks with a man called [Mr A].  He had other one night stands in Turkey.   About a year after his arrival in Australia he had a one night stand. 

27. In submissions provided to the Tribunal on 15 May 2017 it is claimed the applicant fears returning to Turkey because he will be at risk of being seriously harmed due to his sexual identity and his compulsory military service obligations.  Country information is referenced in relation to the treatment of conscientious objectors in Turkey and the treatment of homosexuals in the military and in society.   Various photographs are attached along with letters of support from friends of the applicant and a psychological report from [a] Registered Psychologist.

28. At the Tribunal hearing the applicant gave a generally consistent account of his written claims.  He confirmed that he first became aware of his sexual feelings as a teenager when he realised he was more comfortable in the company of girls whose nature was generally softer.  He said he hid his feelings because he knew from experience that his society did not accept gay people.  He confirmed he had a brief relationship with a man called [Mr A] when he was eighteen followed by a few shorter experiences with other men he met through [Mr A].  Also, he said he had some conversations with a gay person he met on the internet.  Because of his fears, he said he made little effort to make contact with members of the gay community in Turkey.  He confirmed that he has told nobody in his family in Turkey about his sexuality and said he cannot envisage doing so in the foreseeable future for fear of their reaction.

29. When asked how he is living as a homosexual in Australia the applicant said that while he goes out and socialises in gay venues he is still cautious lest his family in Turkey come to know about his sexuality.  For instance, he said he deliberately avoids revealing his sexuality or gay activity on social media for fear his family with see it.  This was confirmed by the Tribunal at hearing.  When asked who in Australia knows he is homosexual he said he has befriended a couple of Turkish people here whom he has come to know and trust and they are now aware of his sexuality and are supportive of him.  He referred to letters from two such close friends which were provided to the Tribunal in submissions.  When asked if he has any evidence of support from gay friends in Australia he said he doesn’t really have close gay friends.  He referred to an acquaintance [whom] he meets out in clubs from time to time.

30. When asked which gay venues he frequents the applicant named various gay clubs in the vicinity of [the named location].  He said he attends [festivals] and for the last two years he has [been active] in the [festival].  He produced photos to this effect.  He confirmed he is not in a relationship but does have casual sexual encounters from time to time.  He said that several years ago he entered into a relationship but it did not last because of the uncertainty about his status in Australia.  He said he has deliberately avoided entering into another relationship for this reason. 

31. At the hearing the Tribunal put it to the applicant that he has been in Australia for nine years but doesn’t seem to have developed a strong foothold in the gay community despite being free to do so.  The applicant responded that he is not a very social person in general and said he prefers to meet people face to face rather than through the internet.  He said that due to his reserved personality he has only a few close friends.  Nevertheless he said he does go out sometimes to satisfy his sexual needs.

32. The Tribunal asked the applicant whether he is in contact with his family in Turkey and he said he does have cordial communication with them because they don’t know he is homosexual.  When asked how he managed to avoid the arranged marriage referred to in his written claims he said he managed to persuade his father that he has plans for his life and work in Australia.  For instance he said he has started his own [business] and convinced his father of the merits of this.  Nevertheless, he said his father was angry with him initially but ultimately there was little he could do from afar.  He said he is not sure what happened in the end with the arranged marriage because in the end his father stopped asking him about it when he refused to go ahead with the plan.   

33. Regarding his military service the applicant confirmed at hearing that his deferment from military service has expired and he is now considered a draft evader.  He said he has no further rights to seek deferment as he is no longer studying and that as soon as he enters Turkey he will be taken into the military.  He confirmed that when he visited Turkey in 2012 his deferment was still valid.  Regardless of the problems he will face in the military as a homosexual he said he is opposed to military service because he is pro-peace and against killing.  He said that if he asks for an exemption on the grounds of his sexuality he will be required to undergo a humiliating examination and his family will find out.  Also, he said that because he is a conscientious objector he does not believe he should pay for exemption.

34. The Tribunal questioned why the applicant had waited five years to apply for a protection visa in Australia.  He said it was not an easy decision for him to make and he wanted to understand how he could live his life as a gay person in Australia.  He said that while he continued studying he didn’t make any plans but when he finished studying the pressure from his family became greater and that is when he made the decision to apply for a protection visa. 

35. DFAT has reported that, whilst homosexuality and homosexual acts are legal in Turkey, the lesbian, gay, bisexual, transsexual and intersex (LGBTI) community continues to experience discrimination and intimidation as well as targeted violence. There is no legislation in relation to hate crimes against LGBTI people and societal and cultural barriers can preclude LGBTI people from living openly, with the exception of a few enclaves in Istanbul and other large cities where population numbers mean it is easier to find a social circle or community. The vast majority of Turks have conservative views about sexual orientation. In June 2015, Istanbul’s governors banned the annual Gay Pride March and police broke up the parade with using tear gas and water cannons in what was described by the European Commission as a ‘disproportionate use of force’. LGBTI people are at risk of harassment by police or other government officials and extortion by police for sexual favours has been reported to human rights organisation. DFAT assessed that LGBTI individuals face a moderate risk of official and societal discrimination depending on their socio-economics status and geographical location however many continue to hide their identity to avoid harassment. [1]

    [1] DFAT, 2016, DFAT Country Information Report Turkey, 5 September

36. Other sources set out a range of concerns about the circumstances of LGBTI people in Turkey. The International Lesbian, Gay, Bisexual, Transex and Intersex Association has reported that Turkey continues to treat LGBTI people as second-class citizens through law, policy and practice and that transphobic murders have continued unabashed. [2] The International Gay and Lesbian Human Rights Commission have reported that the LGBT community does not enjoy adequate legal protection from discrimination and abuse under Turkey’s constitution and existing legislation. [3] The Global Gayz website has reported that the human rights of LGBTI individuals are “one of the most controversial human rights issues in Turkey” and that “owing to conservative values embedded in Muslim-majority Turkish society, homosexuality remains a taboo topic in public discourse”.[4] Amnesty International has reported that the authorities at best ignore the rights of LGBTI people, and at worst single them out for discriminatory treatment.[5] The US Department of State has reported that, while the law does not explicitly discriminate against LGBTI individuals, references in the law relating to “offenses against public morality,” “protection of the family,” and “unnatural sexual behavior” sometimes served as a basis for discrimination by employers and abuse by police and LBGTI individuals continued to suffer discrimination, intimidation and violent crimes.[6]

    [2] International Lesbian, Gay, Bisexual, Trans and Intersex Association, 2014, Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People - 2013 : Turkey, May

    [3] International Gay and Lesbian Human Rights Commission 2012, Human Rights Violations of Lesbian, Gay, Bisexual and Transgender (LGBT) People in Turkey: A Shadow Report, Submission to the 106^th Session of the Human Rights Committee, 10 October

    [4] ‘Global Gayz – Republic of Turkey, Middle East’ (undated), Global Gayz website

    [5] Amnesty International, 2011, Not an Illness Nor a Crime: Lesbian, Gay, Bisexual and Transgender People in Turkey Demand Equality, Amnesty International website, 21 June

    [6] US Department of State, 2015, Country report on Human Rights Practices for 2014 -Turkey

37. Sources have also reported that there is no language in Turkey’s constitution or existing legislation that specifically protects LGBT individuals from discrimination based on their sexual orientation or gender identity.[7] The Turkish government has previously refused to include the terms ‘sexual orientation’ and ‘gender identity’ in legislation although LGBT groups sought to have these terms included.[8] Amnesty International has reported that LGBTI individuals have “consistently stated that they did not seek the assistance of the authorities to offer protection in the case of threats of violence or to report violent offences because they believed that due to their sexual orientation or gender identity the authorities would not assist them”.[9]

    [7] International Gay and Lesbian Human Rights Commission, 2012, Human Rights Violations of Lesbian, Gay, Bisexual and Transgender (LGBT) People in Turkey: A Shadow Report, Submission to the 106^th Session of the Human Rights Committee, 10 October

    [8] Ibid

    [9] Amnesty International, 2011, Not an Illness Nor a Crime: Lesbian, Gay, Bisexual and Transgender People in Turkey Demand Equality, Amnesty International website, 21 June

38. Military service is compulsory in Turkey for all males aged between 20 and 41.[10] University graduates must undertake military service for six months.[11] Legal exemption from military service is possible on medical grounds and payment of a fee.

    [10] UK Home Office Country Information and Guidance, 2016, Turkey: Military Service, March

    [11] DFAT, 2016, DFAT Country Information Report Turkey, 5 September

1. Homosexuality is regarded as a psycho-social illness and must be proven two ways: an invasive medical examination by military approved doctor and provision of photographic evidence. The UK Upper Tribunal has found that the exemption process itself carries a real risk of breach of Article 3 of the European Convention on Human Rights which prohibits inhuman or degrading treatment or punishment.[12]

   [12] SD (military service-sexual identity) Turkey CG [2013] UKUT 612 (IAC) (5 December 2013)

2. DFAT has reported that men aged between 27 and 41 can buy exemption from military service by payment of 18,000 Turkish lira (9000 AUD). Generally only the affluent and are able to pay.[13] The UK Home Office has reported that the Turkish parliament has allowed men born after 1 January 1988 to avoid military service by paying 18.000 lira.[14]

   [13] DFAT, 2016, DFAT Country Information Report Turkey, 5 September DFAT, 2016, DFAT Country Information Report Turkey, 5 September

   [14] UK Home Office Country Information and Guidance, 2016, Turkey: Military Service, March

3. There is currently no legal basis for conscripts to claim exemption on the basis of being conscientious objectors. The European Court of Human Rights has found that the absence of exemption on the grounds of conscience has resulted in “heavy and repeated criminal sanctions being imposed on those who refuse to comply. Such a system fails to strike a proper balance between the general interest of society and that of conscientious objectors. The penalties, sanctions, convictions and prosecutions imposed on conscientious objectors, when no measures were provided to take account of the requirements of their consciences and convictions, could not be regarded as necessary in a democratic society”.[15] The penalty for evading military service is a fine or imprisonment of between three and 36 months. On completion of a prison sentence, a person is still required to complete military service.[16]

   [15] European Court of Human Rights (ECtHR), Savda v Turkey (Application No 42730/05), June 12 2012

   [16] UK Home Office Country Information and Guidance, 2016, Turkey: Military Service, March

4. The UK Upper Tribunal has found that a recruit discovered to be homosexual during his military service is likely to suffer ill treatment of sufficient severity to amount to persecution and that there is no adequate protection.[17] Homosexual conduct is also grounds for immediate dismissal from the military.[18]

   [17] SD (military service-sexual identity) Turkey CG [2013] UKUT 612 (IAC) (5 December 2013)

   [18] UK Home Office Country Information and Guidance, 2016, Turkey: Military Service, March

5. The delegate did not accept the applicant is homosexual.  The delegate considered the applicant’s testimony in relation to his life as a homosexual in Turkey was unconvincing.  In particular the delegate noted the applicants delayed and unconvincing claims in relation to previous same sex relationships in Turkey.  Similarly, the delegate considered the applicant’s testimony in relation to his life as a homosexual in Australia to be unconvincing.  In particular the delegate noted that the applicant’s same sex relationships over the course of several years have been limited.  Also, the delegate found that if the applicant genuinely feared returning to Turkey he would have sought protection sooner.

6. The Tribunal shares some of the same concerns as the delegate particularly in relation to the applicant’s limited expression of his sexuality in Australia and the delay in him seeking protection.  Having regard to his evidence as a whole, however, and in view of his expressed personality traits, which the Tribunal observed to be credible, the Tribunal cannot be satisfied beyond doubt that the applicant is not a homosexual.  Further the Tribunal has had the benefit of additional information by way of photographic evidence and witness statements which corroborate the applicant’s claims.  The Tribunal gives the applicant the benefit of the doubt and accepts he is homosexual.  The Tribunal accepts, based on the applicant’s evidence, that his homosexuality will not be accepted by his family in Turkey.  In view of the country information set out above the Tribunal also accepts that there is a chance, which is not remote, that the applicant is likely to face discrimination, harassment, intimidation and physical violence living as a homosexual in Turkey.

7. The Tribunal also accepts, on the available evidence, including documentary evidence provided in submissions, that, the applicant’s military service deferment has expired and that he objects to completion of Turkey’s mandatory military service obligations.  However, for reasons which are outlined below the Tribunal has not found it necessary to consider this claim further.

8. In view of the above country information the Tribunal accepts there is real chance the applicant may experience discrimination, intimidation and harassment, including serious physical harm in Turkey because of his membership of a particular social group, “homosexuals in Turkey”. The Tribunal notes that under Australian law, the applicant cannot be required to live discreetly in order to avoid harm.

9. The Tribunal acknowledges that DFAT has stated that Turkey’s judicial system and police force are well-established and benefit from a long tradition of public service and that the police generally provide effective state protection and that they have undertaken training in relation to vulnerable and minority groups.[19]  However, country information set out above indicates substantial shortcomings in the investigation and prosecution of crimes against gays in Turkey.  Indeed there are credible reports of the police and government authorities harassing and using violence against gays.  In view of this, the Tribunal finds that the applicant would not be able to access state protection against serious harm.

   [19] DFAT Country Information Report Turkey, 5 September 2016

10. The country information set out above also indicates the pervasive nature of discrimination, intimidation and violence, including from state agents, towards homosexuals throughout Turkey.   Accordingly the Tribunal finds that the applicant would face a real chance of serious harm throughout the country and in such circumstances relocation is not an available option to the applicant.

11. For the reasons outlined above the Tribunal finds the applicant’s fear of persecution is well-founded. Therefore the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Accordingly the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Tania Flood
    Member