1513200 (Refugee)

[2018] AATA 1303

1513200 (Refugee) [2018] AATA 1303 (27 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

Ms ECASE NUMBER:  1513200

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Luke Hardy

DATE:27 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 March 2018 at 12:05pm

CATCHWORDS

Refugee – Protection visa – Turkey – Social group – LGBTI ­– State protection available – Credibility issues

LEGISLATION

Migration Act 1958, ss 36, 65

Migration Regulations 1994, Schedule 2

CASES

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 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, [Mr A], is an ethnic Kurdish Muslim citizen of Turkey. He entered Australia [in] April 2012 on a prospective marriage subclass 300 visa and was later granted a temporary partner subclass 820 visa. The partner’s sponsorship was later withdrawn, and [Mr A] applied for a protection visa [in] May 2014. The Minister’s delegate refused to grant the visa [in] August 2015. [Mr A] subsequently sought review by the Tribunal.

3. [Mr A], who is in immigration [detention], appeared by video-link before the Tribunal in Sydney on 2 November 2017 to give evidence and present arguments.

4. The applicant was unrepresented at the time of his Tribunal hearing. He later sought the assistance of a registered migration agent who has made numerous submissions since the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

5. The main issue in this case is whether [Mr A] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS

   Claims to the Department

7. [Mr A] claimed in his protection visa application that he grew up gay in Turkey. He claimed he was sexually abused when he was [a child], by a neighbour, while being raised by his father after his parents divorced. He claimed he did not know what sexuality was about at the time. He claimed the neighbour continued to abuse him sexually until he was [age]. He claimed he realised at [age] what had been happening. He then claimed that this abuse continued until he was [age]. He claimed that his emotional and sexual [Venue 1] after that tended to be homosexual. He claimed he was targeted of being gay at his [school], after coming out to a fellow pupil called [Mr B]. He described occasions on which he later had consensual homosexual encounters in places that were publicly accessible, however discreet: a [location] near his [school] with [another student], just weeks after the controversy arising from his confession to [Mr B]; [at] a hotel with a colleague called [Mr C]; and a toilet in a [workplace] with a [client]. He claimed that on the occasions when he had sex with men in those three places, he was caught, respectively, by students from other schools, or colleagues, or others and was assaulted. He claimed that when he was having sex after work hours with his colleague [Mr C] in [a] Hotel, his boss caught him, bashed him and brought in the police. He said [Mr C] was able to escape before the boss could assault or catch him. He said he was taken by the police to the [police] station where he was verbally humiliated but not physically harmed in any way by the police there. He did not suggest that he was ever charged with anything, notwithstanding that he and [Mr C] were found by witnesses to be having sex in a public amenity. He claimed he was later taken by police car, on the way home, to a place where officers beat him. He claimed that during his military service[he] kept his sexual orientation a secret.

8. [Mr A] claimed that he made friends with a counsellor to whom his family sent him during his adolescence. He said he was open about his sexual orientation with his counsellor who he described as wise and who, he said, expressed tolerance and reassurance, and helped him build self-esteem.

9. [Mr A] claimed that in 2009, when he was having sex in a toilet with a male customer at the [workplace] where he worked, he was caught there by a cleaner who called the owner and some employees who came and beat him so hard he was rendered unconscious and hospitalised. He was not evidently accused or charged by the police in the matter. It is not evidence from the claim that the police were brought into the matter at all. I note that consensual sexual relations between adult males in private are not prohibited under Turkish law, although, as [Mr A] has shown in submissions to the Tribunal, there are laws against “indecent” public behaviour by or between individuals.

10. [Mr A] claimed he met an Australian woman in Turkey in 2010. He claimed he told her he was gay and that she said she would “make sure” to change his sexual “preference”. He claimed she sponsored him to travel to Australia on a Prospective Marriage subclass 300 visa. After arrival he was granted a Partner visa subclass 820, pending the processing of a Permanent Partner subclass 801 visa. He claimed he tried to engage in a sexual relationship with [Ms E] but failed. He claimed they separated [in] February 2013. It appears that he lodged the withdrawal from the partner visa application.

11. [Mr A] claimed he could not return to Turkey lest he suffer further ostracism, patronising behaviour and assault.  He claimed that although the law does not authorise penalties for homosexual orientation, “there exist execution [or executive?] order[s] and more … for gays and lesbians … using public transport, buses, walking in streets and [in] shopping centres as long as there is an Islamic [orientated] government in power in Turkey.” He provided no evidence to support this suggestion of such orders against gays and lesbians in Turkey.

12. [Mr A] claimed that even seeming to be gay can lead to a person being assaulted. He claimed that “by now” his parents and siblings all know he is gay. He then implied that he is an outcast in their eyes; however, he later provided letters of sympathy and support from several family members including his father, all of whom claimed to be aware of his homosexual orientation. He even provided to the Tribunal (see below) a letter from his cousin ([Mr F]), originally described as hostile to him, who, in that letter, expressed contrition over past conflict and intolerance regarding his homosexuality.

    Additional supporting information

13. A submission dated 6 May 2015 from [Mr A]’s then adviser includes a covering letter containing arguments, two statutory declarations and copies of 2012 and 2015 joints submissions on Turkey by various gay and lesbian rights groups to the UN Human Rights  Committee (later Council). 

14. The covering letter includes legal argument to the effect that gays, or male homosexuals, constitute a “particular social group” for the purposes of assessing refugee status. It also highlights some passages from the attached submissions to the UN: about Turkey’s new constitution omitting reference to sexual orientation and gender identity; about the Turkish Interior Minister making disparaging public comments about homosexuality being immoral; about an EC-reported increase in anti-gay advocacy and instances of anti-gay violence in Turkey, along with an EC-reported increase in inadequate investigations and prosecutions by Turkish police of assailants in cases of violence against gays and lesbian individuals; and about Amnesty International reporting, in 2011, that there is general discrimination against gays and lesbians in President Erdogan’s less secular, more pro-Islamist Turkey.

15. The 2012 submission to the UN reports on a transsexual pride event that was initially attacked by anti-pride demonstrators: the police reportedly protected the event as it proceeded but did not prosecute any of the initial attackers. The same submission also reports that in some local cities, NGOs assisting Lesbian/Gay/Bisexual/Transgender (LGBT) groups were asked by local community associations to close down, the request having then been overruled in the courts, leaving the LGBT sufficiently protected to continue operating, and the authors of the submission to the UN then stating, “This shows that the right of association can be protected in Turkey.” It expressed concern about the state stipulating that LGBT organisations desist from engaging in vaguely-described “homosexual propaganda”, and not more clearly excluding LGBT support groups from vague proscriptions, under Article 56 of the Criminal Code, against the forming of associations “against laws and ethics”. The recommendations in this submission identify areas of discrimination, the need to improve protection to prevent and better respond to instances of assault on individuals and the need to prosecute systematically in cases of attacks on LGBT persons and social events.

16. The 2015 submission cites 33 percent of LGBT persons surveyed reporting that they were not hired for work due to their sexual orientation or gender identity (this evidently includes lesbians and transsexuals). It reports evidence of the sacking of police officers, teachers and bank personnel who disclosed their LGBT sexual orientation. Relevant to this, I note evidence to the effect that Turkish courts have found against and fined employers and institutions specifically for discriminating against gay employees.[1]

    [1] “Turkish football federation fined after sacking referee because he was gay,” The Express, 29 December 2015,

17. One of the statutory declarations, dated 1 May 2015, is from [Mr A]’s uncle, [Mr D], [an Australian] resident, who declares that he is “aware” of the suffering [Mr A] sustained while growing up in Turkey. He stated that [Mr A] left Turkey to avoid further harassment for being gay from police, “school friends and administrators”, neighbours and close family members and cousins. He did not state how or even if he independently established these facts. He declares there is no reason to believe that [Mr A] will avoid similar harm in the event of return to Turkey. His 2015 statutory declaration was surprisingly lacking in detail considering he  later provided a declaration to the Tribunal (see below) in which he described once having personally found [Mr A] in bed with another man, years ago in Turkey, and having become enraged at the sight of them together.

18. The other statutory declaration, also dated 1 May 2015, is from [Mr A]’s grandmother, who is also [an Australian] resident. In this statutory declaration she claimed to recall [Mr A] displaying “mixed sexual fondness” as a child, in that he could be seen spending more time with boys that with girls. She did not argue how such fraternisation would seem remarkable in predominantly Muslim Turkey. The grandmother said that after the divorce of [Mr A]’s parents, he “had all the free time to explore his sexuality, spending more time with boys and at times coming home late.” She declared, meanwhile, that she did a lot of the work raising [Mr A] at the time because his father, an alcoholic, was drinking excessively. She said she could recall [Mr A]’s [school] principal telephoning his family and saying that the “whole school” considered him to be homosexual. She declared that neighbours also harassed him, causing the whole family to be “hiding” themselves to avoid being questioned about [Mr A]’s sexual orientation. Other evidence presented in this case indicates that [Mr A] and his father and siblings moved to a house adjacent to his grandmother’s. In spite of [Mr A]’s family having to be “hiding” at that time from taunting neighbours, which implies that his sexuality was a topic of embarrassing local conversation, it is declared in later statutory declarations from [Mr A]’s father and uncle, that news of [Mr A]’s homosexual orientation did not reach his father until 2016. The father, in his 2017 statutory declaration (see below), says he could not believe what he was hearing when he was told in 2016.

19. [Mr A]’s grandmother stated that homosexuality is still not accepted in all sectors of Turkish society. She declared that discrimination against him was the reason he left Turkey. She claimed to be aware of persecution of and discrimination against [Mr A] by “school friends and administrators”, neighbours, some family members, cousins and relatives, and Turkish authorities. She declared there is no reason not to believe that [Mr A] will face persecution in Turkey in the reasonably foreseeable future for reasons of his sexual orientation.

20. The texts of the statutory declarations by [Mr A]’s grandmother and uncle appear in part to manifest a common order of assertions and near-identical dot-point claims in somewhat identical language. In both declarations, one finds identical use of phrases like “rejection[s] of homosexuality by […] communal judgement at large and […] civil authorities, the persecution and discrimination that he has faced and that I am aware of includes:” and “There is no reason not to believe that [Mr A] will not be subjected to …”.

    Evidence to the delegate

21. The delegate’s decision in this matter includes a summary of evidence that [Mr A] provided at the protection visa interview [in] May 2015. At the time, [Mr A] said, his father and siblings were angered by and opposed to his being gay, with his father having written him threatening letters. [Mr A] did not provide any evidence to support this claim but, in any event, he later provided evidence of significant a change of heart on his father’s part: a letter in which the father claims to have put to one side his views about the son’s sexual orientation to pay more attention to his safety and welfare. The delegate asked [Mr A] for evidence of his hospitalisation in Turkey after having been beaten and the [workplace]. [Mr A] evidently told the delegate that the medical evidence was in his family home but unobtainable there because he no longer had any contact with his family. Asked if he could contact the hospital for an authorised duplicate of his medical report or record, he said that he had tried but been continually transferred from one hospital department to another.

22. The delegate asked [Mr A] for any evidence he might have to show him socialising as a gay man in Australia, particularly since the break-up with [Ms E]. [Mr A] said he used to go to the [Venue 1] nightclub in [City 1 in Australia] and meet men there. He said he did not use any gay social media such as “dating Apps”. Asked if he had any photographs of social life in the gay community in [City 1], [Mr A] indicated that his mobile telephone was “old”.

23. The delegate discussed with [Mr A] an anonymous tip-off to the effect that he had been consorting and having sexual relations at his place of residence with various women since the break-up with [Ms E]. The delegate ultimately gave no weight to the allegation. More information about this allegation was provided to the Tribunal than was apparently available to the delegate: [Mr A]’s cousin claimed to have made the allegation against him out of jealousy at a time when he was addicted to drugs and his father, [Mr A]’s uncle, had or showed more affection towards [Mr A] than him.

24. Overall, the delegate did not, however, find [Mr A] a credible witness. The delegate did not believe that [Mr A] is or ever was gay, or had had sexual or intimate emotional relations with men.

25. [Mr A] did not submit a copy of the delegate’s decision for the purposes of this review, but the facts referred to above were either raised by him, or on his behalf, directly in evidence to the Tribunal or provided to the Tribunal in response to questions I asked him at the Tribunal hearing.

    Evidence to the Tribunal

    First submissions to the Tribunal

26. Prior to the Tribunal hearing, [Mr A] resubmitted much of the material sent to the Department in May 2015.

27. [Mr A] also submitted a short statement asserting that the information sent to the Department about his having affairs with various women was false information from his cousin who had been evicted by his father, [Mr A]’s uncle, and who was also drug-addicted at the time. He undertook to provide a medical certificate about his hospitalisation in Turkey and to provide photographs “to prove” he is homosexual.

28. [Mr A] submitted a photocopy of a purported hospital registrar’s medical certificate which according to an English translation is dated [May] 2009, when [Mr A] was [age] years old. The certificate describes bruises and other injuries to [Mr A]’s face, but it also attributes these unequivocally to assault, a fact that would appear to be beyond the competence of the doctor and the specific purpose of the report. [Mr A] later told me verbally that his parents sent him the hospital report.

29. The very strong implication in this purported [May] 2009 medical report is that [Mr A] was assaulted at the [workplace] where he worked only hours before the report was made. Meanwhile, in his protection visa application form, he claimed that he worked at that [workplace] from January 2009 to December 2009, which means he worked longer at the [workplace] after the alleged assault by his boss and other staff than he did before.

30. [Mr A] submitted a photocopy of a statutory declaration in English from his father’s brother who resides in [Australia]. The author declares in this document that the information submitted to the Department about [Mr A] having and seeking sexual relations with various women after his break-up with [Ms E] was false information generated by his son [Mr F], [Mr A]’s cousin, out of disaffection arising from being evicted from the family home. The uncle claimed that his son [Mr F] had “forcibly asked” two friends to pass this information to the Department and that they had refused. He said that, in the circumstances, he believed his son [Mr F] had submitted the false accusations to the Department by some other channel. He submitted that his son should not be treated as a reliable witness against [Mr A]. He said his son’s actions were motivated by envy.

31. [Mr A] also submitted photocopies of two photographs, both of these possibly taken at a gay bar: one features [Mr A] sitting beside an open box that is being attended to by an apparent transsexual or drag artist; the other features [Mr A], seated, with another man of about similar age sitting on his lap in what appears to be [character][2] drag.

    The Tribunal hearing

    [2] [Source deleted].

32. At the Tribunal hearing, [Mr A] claimed he first knew he was gay as a young [child]. He said he realised he was different because at this age he used to play with his stepmother’s makeup and play with girls. He said his father used to bash him when he caught him doing such things. He said that later, when he was at school, he was never attracted to girls. He told me he felt like “I’m myself a girl”. I asked him to explain this as it might be said that he appeared on the video screen and in past photographs to be presenting, at least outwardly, as a muscular, stubbled male. (He later submitted photographs of himself with a tattooed chest.) He said he only presents as a male on the outside and hides his female self-image. He went on to say that it was hard to describe what he meant by this, and I have duly considered that such subjective and sensitive matters can easily be difficult to articulate. Perhaps in particular cultural contexts it is difficult to be same sex-attracted without apprehending oneself to be somehow at one with the opposite gender.

1. [Mr A]’s claims about preferring to play with girls did not appear to sit with the evidence of his grandmother who claimed she became aware of his sexual orientation because he tended only to associate with boys.

2. [Mr A] told me that, as at the time of the Tribunal hearing, his father was aware that he is gay and was still refusing to accept him.

3. According to statutory declarations submitted to the Tribunal, [Mr A]’s father resides in [Suburb 1] whereas his uncle resides in [Suburb 2], some two kilometres away. On the map the district names appear to overlap, with many [Suburb 1] locations situated in [Suburb 2]; hence it does not appear inconsistent to say that he was living in the same location as both his uncle and father at the time of his being taken into immigration detention.

4. [Mr A] said to me that whereas there are rich and famous gay celebrities in Turkey, there are “no legal gay clubs in Turkey, I swear.” I put to him on the basis of independent country information that this was not true, there being legions of popularly patronised gay pubs and clubs operating legally and openly in Istanbul[3] and on the Turkish coast.  [Mr A] persisted, however, in putting the incorrect and untrue position about all gay venues in Turkey being illegal and “underground”. He said that people walking out of these bars are routinely bashed, but then said he was talking about the situation in the coastal city of Antalya where he resided. He did not support this claim about systemic assaults in Antalya with any supporting material.

   [3] “Information about gay bars and clubs in Istanbul,” Istanbul Gay Guide, updated 2017,

5. I put to [Mr A] that his claim did not address the fact that gay venues operate legally in Istanbul as they do throughout coastal resorts in Turkey. In reply, [Mr A] said the situation in Istanbul is just the same as it is in Antalya. When I put to him the information I had about gay entertainment venues being openly patronised in Istanbul[4] and on the coast, [Mr A] said that it only appeared that these places were operating legally and freely so that the Turkish government could fool EU monitors. He seemed to be implying here that Turkey is trying to ingratiate itself upon the EU to secure EU membership, but independent reporting indicates that Turkey has not been concerned with such ambitions for several years under President Erdogan.

   [4] “Gay Istanbul”, TravelGay Europe, 2010-2018, >

   [Mr A] claimed he once went to a police station to complain about homophobic harassment only to be bashed by the police. This alleged event struck me as being a new claim: the facts differ from those of the occasion described in [Mr A]’s original protection visa application statement about being verbally humiliated but not touched by police after the [hotel] episode and later being taken by police car, on the way back home, to a place where officers assaulted him. I asked [Mr A] to tell me the name of the police station that he visited and where he was bashed; he said it was [in] Antalya.

6. I discussed with [Mr A] the independent country information to the effect that for the last few years, Istanbul’s Annual Gay Pride March had not been allowed to proceed. I put to him that the Turkish government had banned all manner of public demonstrations and marches in recent years evidently, or at least purportedly, to prevent their being targeted by ISIS and PKK terror attacks, in light of street bombs having been detonated in Istanbul from time to time in recent years.

7. I asked [Mr A] where the two submitted photographs had been taken and he said they had been taken at a gay bar in [City 1]’s [Suburb 3] district; he said he could not remember the name, but I recall his having previously named, correctly, the [City 1] gay venue known as [Venue 1], which is located in [Suburb 3].[5] I asked [Mr A] which venue had been his more regular venue and, in reply, he said he could not remember the name. He said he had difficulty recalling credible details as he was suffering from “adult autism”. I put to him that he had named a predominantly gay venue in evidence to the Department and he said that he probably had done so. He then said there are only two gay bars in [Suburb 3] and that the other one is called [Venue 2]. Independent evidence suggests that [Venue 2] is not strictly a gay bar as it advertises itself with images of female patrons and is described on its website as

   [Details deleted].

   [5] [Source deleted].

8. None of this rules out [Venue 2] being a gay-friendly bar. I note that relevant sites on the Internet generally list [Venue 3] as the only other gay venue in [Suburb 3], although one site does include [Venue 2] amongst venues in [City 1], like [Venue 1] and [Venue 3] that are popular with gays in that city.[6]

   [6] [Source deleted].

9. I asked [Mr A] if he used to meet men for sex in [City 1] and he said he did. He said he did this in the nightclubs and on the train.

10. [Mr A] said he did not use gay “Apps” (social media applications accessible on smartphones) to help him meet men in [City 1]. However, he change his evidence, saying he did resort to gay Apps in his search for male partners, and even that evidence became confused, because he went on to say that he did not join any gay Apps because there were more women using them than men. I then asked him why he did not in the circumstances join strictly male gay Apps, whereupon he said that he did join some but found more women using them than men. I asked him if he could name any gay Apps which he had used or to which he had subscribed and he named two websites: the first was [Website 1] and the second was [Website 2].

11. [Website 1][7], contrary to [Mr A]’s claim, is evidently not even partly devoted to gay socialising. According to its own front page and various independent commentaries available on the Internet, it is a heterosexual website. Also, contrary to [Mr A]’s description of it as an App that he tried to use for the purpose of meeting other men, [Website 2][8] is not a “chat site” through which gay men can chat with or meet other gay men but is, rather, according to the Google search engine, a site that on a pay per view basis, [details deleted].

    [7] [Source deleted].

    [8] [Source deleted].

12. I put to [Mr A] that [Website 1] is not in any way at all a gay chat or meeting site and he said that it has “settings” for use by gays. Access to the [Website 1] site evidently offers no such settings. Users have described it as “[quote deleted]”[9], [Website name] evidently being a site used by gay men to chat with and/or meet other gay men for social and/or sexual engagement.

    [9] [Source deleted].

13. I asked [Mr A] if he knew the names of any gay Apps and he said he had joined two or three but “didn’t stay [a] long time” because he could not find anyone on those sites. He did not name any gay Apps, and has not since the time of the hearing named any or provided any other evidence of having subscribed to the “two or three” gay Apps he claimed to have joined.

14. I offered [Mr A] a week to locate a smart phone that he said was being held by the Department. He said that was the one with the gay Apps on it. I suggested he might like to submit evidence of subscription to the gay Apps he claimed to have joined, and he said he might be able to send photographs of himself. I asked him if he still retained an adviser and he said he was in the process of engaging a new adviser. I gave him a week to submit further material, potentially including the evidence of the two or three gay Apps he claimed to have joined. I am confident that [Mr A] understood the potential relevance of such material as we discussed it repeatedly.

    Post hearing submissions

15. I gave [Mr A] a week to provide further submissions in this matter.

16. In the evening of the day of the hearing, the Tribunal received a submission from [Mr A]’s newly-engaged representative. The new adviser indicated concern that [Mr A] might not have been able to provide consistent, credible and detailed evidence at the Tribunal hearing due to his autistic condition. The submission referred the Tribunal to various FOI applications and also to a note from a [psychologist] stating that [Mr A] had been under psychological assessment since May 2017. The statement also said that he had been diagnosed with substance abuse disorder and PTSD, and was being assessed further to confirm a diagnosis of adult autism. The author of the statement reports [Mr A]’s father having indicated strong support for him and his rehabilitation, and asks that his psychological condition be considered.

17. A 3 November 2017 submission asked the Tribunal for an extension of time; on the information before me, I declined the request, for want of sufficient information as to the appointment of the new adviser.

18. A 7 November 2017 submission comprises correspondence relating to case management and the appointment by [Mr A] of the new adviser. A further submission asked the Tribunal for more time to submit further material in support of [Mr A]’s claims, and I decided on the newly-presented material to grant an extension of time for post-hearing submissions to 23 November 2017. The Tribunal also released a copy of the audio recording of the 2 November 2017 hearing, which included discussion about the gay dating Apps that were purportedly downloaded into [Mr A]’s other telephone (held by the Department).

19. Subsequent correspondence shows that the new adviser was having difficulty obtaining an even interim updated psychological report.

20. A 23 November 2017 submission comprises three BBC articles and a Wikipedia entry entitled “LGBT History in Turkey”. One of the BBC articles reports the rape and murder of a gay man from Syria in Istanbul by an alleged gang, with no arrests made in the week since the incident.[10]

    [10] “Gay Syrian man beheaded and mutilated in Turkey,” BBC News, 4 August 2016,

21. A 24 November 2017 submission provides evidence of efforts in good faith to obtain the updated psychologist’s report. The same submission includes five photocopies of “selfie” photographs featuring a bare-chested, tattooed [Mr A], four of them with a friend at the beach, in a car, and in a room, apparently putting on a shirt. The friend’s eyes have been “redacted”, as it were, with a black marker pen. No information in the photographs, including the redaction, seems capable of suggesting to an open-minded viewer that there is any sexual relationship between [Mr A] and the other individual in them. No information in [Mr A]’s submission suggests who this friend is or whether or not he is aware of the photographs being presented in support of a protection visa application involving homosexual orientation claims.

22. The 24 November 2017 submission includes four statutory declarations: from [Mr A]’s [father]; from his uncle, [Mr D]; and one each from [Mr G] and[Mr H]; all of [the same state in Australia]. In addition there is a photocopy of a handwritten letter from [Mr A]’s cousin.

23. In his statutory declaration, [Mr H] stated that [Mr A] is a friend and neighbour of four years’ standing. He also asserted that [Mr A] can be emotional, unpredictable and confused. He stated that [Mr A] used to go to the [workplace] one day and “seem to” and stay home and shave his body on the next, “so that there was no body hair.”

24. [Mr G] declared in his statutory declaration that he was asked by [Mr A]’s uncle [Mr D] to write a statutory declaration for [Mr A]. He declared that he is a Muslim with “very conservative views about homosexuality” who first met [Mr A] in Australia. He declared that around 2015, [Mr A] asked him for a lift to venue where there was a party to which he was evidently not invited. He also said he drove [Mr A] to the venue. He claimed that he was curious about the party (to which he was evidently not invited) and went into the house where he found “6 to 8 people … all males but some dressed in women’s clothing.” He declared he felt very uncomfortable and left. This episode, involving [Mr G] walking uninvited into a small gay gathering of six to eight people, including [Mr A], was not previously mentioned by [Mr A] in any of his evidence to the Department or the Tribunal.

25. [Mr G] declared that on a later occasion he agreed to drive [Mr A] to another house party where, as [Mr A] told him on this occasion, there was “a party with other gay men”. He said he did not walk into that party, to which he was also evidently not invited, because he felt uncomfortable. He declared that he refused [Mr A]’s request for a lift on a third occasion.

26. [Mr G]’s evidence to the effect that [Mr A] was open about the nature of the parties he was attending in 2015, or at least the second party described in his statutory declaration, struck me as being somewhat incongruous with [Mr A]’s own claims about being afraid to disclose or discuss his sexual orientation with others in his community. 

27. [Mr G] declared that he met [Mr A]’s father and uncle after [the father] arrived from Turkey in late 2016. He declared that he asked about [Mr A]’s relationship breakdown with [Ms E], whereupon [Mr A]’s uncle [Mr D] said it had occurred due to [Mr A] being gay. He declared that [Mr A]’s uncle [Mr D] went on to describe having discovered [Mr A] in bed once with another man, and [Mr A] telling his uncle that he preferred boys to girls. This episode was not described by [Mr A] in his own protection visa application, or in his own evidence to the Tribunal. [Mr G] declared he then described to the two brothers the two times he took [Mr A] to the house parties. He declared that [Mr A]’s father then expressed anger at the news and at [Mr A] having shamed the family. He stated that [Mr A] faces “grave danger” in Turkey because it is a conservative Muslim country.

28. The applicant’s father[declared] as at 23 November 2017 that he migrated to Australia with his parents in 1974 and went back to live in Turkey a few years later. He said his son [Mr A] has a [sister]. [The father] said that [Mr A] had erred in his own statement in saying that his mother left the family when he was [age] years old, as it was his second wife who left the family at that time, [Mr A]’s birth mother having left when he was [an infant]. He declared that he and his second wife had lived [near] his mother, [Mr A]’s grandmother. He declared that his third wife is a [different nationality]. He declared that they and his children lived several years in [another country] and then returned to Turkey. He claimed that due to his being an alcoholic, his mother raised [Mr A] and his siblings. He claimed that [Mr A] was a difficult child with some behavioural problems.

29. [The father] declared that he had welcomed [Mr A]’s partner sponsorship as he thought at the time it would help [Mr A] settle down. He said, however, that his son [Mr A] and his brother [Mr D] told him of the breakdown in the relationship. He said both were very reticent to discuss what happened.

30. [The father] said he came back to Australia on a resident return visa [in] August 2016. He said that [Mr A] moved in with him after having resided for a time with [Mr D]. He declared that after he arrived in Australia, he was together with brother [Mr D] and [Mr G]. He went on to declare that he found out his son [Mr A] was gay during that conversation with [Mr D] and [Mr G]. He declared that he confronted [Mr A] with the information he had received only to be met with a refusal on the part of [Mr A] to discuss the subject. [The father] declared that although he feels [Mr A] is a disgrace to the family he does not want him to be persecuted in Turkey and will do anything to keep him in Australia. he said he did not believe that [Mr A] would be capable of hiding his sexuality in Turkey, notwithstanding his and [Mr A]’s evidence of his having hidden it from very many people for a very long time in Turkey and WA. In any event, I am mindful here of the High Court’s ruling in the cases of S395 and S396.[11]

    [11] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003,

31. [The father] declared that he himself found the photographs of [Mr A] and the man with the blacked-out eyes. He indicated he found them at home while [Mr A] remained in detention, after being asked by [Mr A]’s new adviser if he could locate any potentially relevant supporting material. He claimed to assume that [Mr A] had blacked out the eyes on some earlier occasion to protect the man’s identity. He implied that he submitted the photographs to [Mr A]’s lawyer without any consultation with [Mr A] himself. He said he did this because the lawyer had asked for evidence of [Mr A] being gay.

32. [The father] declared that [Mr A] was incapable of comprehending the circumstances in which he finds himself, citing as examples of this difficulty, one, the fact that [Mr A] told him on the day of the Tribunal hearing that he was being interviewed by the Immigration Department and, two, the fact that [Mr A] was reluctant to come to the telephone when a case officer called to speak with him.

33. [Mr A] declared he had recently learned that the “dob-in” call received by the Department had been from [Mr A]’s cousin [Mr F], who had spoken against him “in a fit of jealousy.”

34. In his statutory declaration, the uncle, [Mr D], declared that he was visiting his mother in Turkey some years earlier at a time when [Mr A] was also staying there. He said he was awakened one night at 3:00am by the sound of people talking in [Mr A]’s room, went to the room, turned on a light, found [Mr A] in bed with another manand became furious. He claimed that [Mr A] pushed him out of the room and locked the door. He claimed he did not tell [Mr A]’s father for fear that he would react even more badly than he did. He said he mentioned the matter to his mother who said she had known for a long time and had not told her son, [Mr A]’s father, because everybody “was so scared about what his reaction would be.” As noted, the claim about the episode involving the uncle discovering [Mr A] in bed with another man, though consistent with a reference in the statutory declaration from [Mr G],   was not described by [Mr A] in his own protection visa application, or in his own evidence to the Tribunal, or in the uncle’s previous statutory declaration; it is not referred to in the grandmother’s statutory declaration either.

35. [Mr A]’s uncle said he was the person who arranged the introduction of [Ms E] to [Mr A]. He said that after the relationship between the two took off he assumed the scene he had witnessed was from a past phase. He said that after two years the relationship broke down and that, as requested by [Mr A]’s father, he tried to see if he could help keep it together. He declared that [Mr A] said there was no point as he “still prefers boys to girls.” He said he let [Mr A] move in with him because he cared for him, notwithstanding discomfort at [Mr A] having male friends stay with him “overnight or for a few nights.” He claimed he was asked by [Mr A]’s new adviser to try to contact [Ms E] for a statement. He claimed he tried but was rebuffed by [Ms E] who said that [Mr A] owed her money. He said that [Mr A] told him he owed [Ms E] no money at all.

36. [Mr A]’s uncle said he asked [Mr G] to be present during the discussion with [Mr A] to help to ameliorate the atmosphere, the better to be able to disclose [Mr A]’s sexual orientation with [Mr A]. He declared that [Mr G] mentioned having driven [Mr A] to two gay parties back in Turkey about two years earlier. He declared that [Mr A] is forgetful and something of a social and behavioural challenge. He expressed concern at [Mr A]’s ability to provide meaningful evidence at the Tribunal hearing on 2 November 2017.

1. The letter from [Mr A]’s cousin [Mr F] is dated 12 November 2017. Mr [Mr F] claimed in the letter that he called the Department and gave information adverse to [Mr A] out of drug-exacerbated jealousy. He said that he knew all along that [Mr A] was gay as did all the people who know him, and apologised for misleading the Department into thinking that [Mr A] was trying at the time  to seek sexual relations with women.

2. On 22 December 2017, the Tribunal received a long submission that included, as an annexure, the foreshadowed and awaited psychiatrist’s report. I note that the psychiatrist was unable to confirm whether [Mr A] has any autism disorder, although she observed that some of his behaviour appeared consistent with being on the autism spectrum. For his part, [Mr A] did not refer to his being autistic when he presented to the psychologist, whereas he emphasised that he was in evidence to the Tribunal. Speaking to his fear of returning to Turkey, [Mr A] evidently said he only had his brother and [sister] there to support him, because his grandmother was soon to move to Australia; some of this information appears to conflict with past claims about not having any contact with family back in Turkey. I cite the 22 December 2017 submission in full here:

   1. Please provide the submissions contained in this letter to the Member.

   2. On 1 December 2017 we received a bundle of medical reports from[Health provider 1].

   3. Attached as Annexure A to this letter is a copy of the medical health consultation conducted by psychiatrist [named] [in] November 2017 together with various annexures.

   4. We refer to the following extracts from the report:

   Says he was a homosexual and everyone bullied him for it. Says he had some sexual contact with a friend and then gossip went around. Left school age [age], left because of the bullying. Says he didn’t get good grades at school, says he tried though. Says he suffered abuse from lots of people as a child. Says his stepmother hit him. Says he was sexually abused by someone outside of the family when he was age [a young child].

   Amphetamines: tried them in 2016 and about 8 months ago.

   Saw a psychiatrist in Turkey as a child and as an adult. Says it was because he got so angry and he didn’t flush the toilet and ashed a cigarette behind the couch.

   Says he has been depressed his whole life.

   Says he had an episode of being too happy a couple of months ago, but it only lasted a couple of minutes.

   Says he has taken other medications for his mental health too but cannot remember the names.

   Says he is hungry. Denies low mood.

   Says he doesn’t sleep, this is longstanding.

   Can’t identify why he doesn’t sleep, has been this way since he was a child.

   Is Muslim but doesn’t believe in it. Is Taoist.

   Tends to be demanding, entitled and dismissive of other. Tends to get angry quickly at small things.

   Somewhat reluctant to engage in interview and mostly focused on finishing so he can eat lunch and dash. Repetitively saying he is hungry. Reluctant to talk about his history. Why are you asking me all this? I’m fine.

   Presents as disengaged and interpersonally odd. Complaining of toothache and hunger.

   Says his mental health is fine. Doesn’t like answering questions.

   [Mr A] presents with some mild interpersonal oddity and rigid thinking consistent with features of an Autism Spectrum Disorder. However, he was eager to finish quickly this session today and go to lunch and so I did not have long enough with him to be able to confirm the diagnosis. No evidence of a mood, anxiety or psychotic disorder.

   He reports he is fine and doesn’t want any MH input. He appears to have been subject to mental health treatment in the past and finds it stigmatising.

   His letter from his lawyer indicates substance use issues but he denied that today.

   He present as being of normal intelligence and about to comprehend his situation and make decisions for himself.

   The diagnosis at the top of page 1 reads as follows:

   At risk for psychological dysfunction (finding)

   5. A further report was received on 20 December 2017 from [Health provider 1]. A copy is attached marked Annexure B and is dated [December] 2017.

   6. The inability to coherently express himself is, we submit, further evidenced by fear expressed in returning to Turkey in the first [Health provider 1] report and also in the [Psychologist 1] reports referred to below whereas this second [Health provider 1] report merely states that he fears returning to Turkey because he only has his grandmother, brother and sister there. In this report he states nothing of his fear of persecution. He said his only issues are his teeth!

   7. We refer to the following extracts:

   Poor eye-contact.

   Focussed on his toothache

   Chunky and delayed verbal responses

   Typical symptoms of Autism

   [Mr A] stated that he was keeping largely to himself as others were asking him questions he did not like to answer.

   He had an accident whereby he smashed his mobile phone out of anger over not being able to access the internet.

   He was on record as having been rude and non-compliant with the dentist, so that he refused to have any further appointments with him.

   [Mr A] showed me that he had broken 4 teeth due to clenching. This was causing him pain and sleep difficulties, and problems when eating. He stated it was causing him pain in his brain.

   Apart from the above he denied having any problems. He managed his social issues by isolating himself.

   He believe he was an adult and was capable of dealing with problems, but denied having any current issues.

   He stated that the only issues were his teeth and insisted he had no other issues.

   His only concern was to get transferred to Christmas Island or deported to Turkey. If he was deported he only had a brother and sister there who had their own lives and his grandmother, who still lived there, was due to come to Australia.

   He stated that he should he have any issues he would speak to me, but again denied any current issues and he did not believe he would have any issues.

   8. Having regard to the comments by the psychiatrist referred to in 4 above, it is of note to draw your attention again to the letter of the psychologist [Psychologist 1] dated [September] 2017 (“the First [Psychologist 1] report”) (another copy is attached as Annexure C). We refer to the following extracts from that report.

   He has been diagnosed with Complex PTSD with features of Substance Use Disorder.

   Further assessment is required to confirm a diagnosis of Adult Autism.

   [Mr A] has been in a highly distressed state, exhibiting cognitive difficulty and perceptual organisation disorder. His state has made it difficult for him to make sound and viable decisions and to fully understand his current circumstances.

   9. Two aspects that we draw your attention to is that the first [Health provider 1] report refers to the Review Applicant presenting with features of an Autism Spectrum Disorder. The [Psychologist 1] report refers to a further assessment required to confirm her diagnosis of Adult Autism.

   10. The first [Health provider 1] report states that he is able to comprehend the situation and make decisions for himself. The [Psychologist 1] report contradicts that.

   11. A further report (second [Psychologist 1] report) was received dated [December] 2017. This is attached as Annexure D and we refer to the following extracts:

   [Mr A] presented with Complex PTSD and substance use disorder.

   [Mr A] required further assessment for Adult Autism.

   Give [Mr A]’s state (cognitive disorganisation) at the time of presentation and his diagnosis, he is considered unable to make clear and informed decisions about his welfare at this time.

   [Mr A] reported current events that indicate that he is unable to make clear and safe choices sufficient to support his wellbeing at this time.

   [Mr A] reported having experienced and witnessed high violence trauma while residing in Turkey.

   He reported fear of returning to Turkey, indicating personal threat to his wellbeing.

   12. We submit that what appears from the [Health provider 1] reports indicates a person reluctant to discuss his issues. He has continuously complained about his broken teeth but refuses to have treatment. He fears returning to Turkey and expresses having experienced and witnessed high violence trauma while residing in Turkey. He reported fear of returning to Turkey indicating personal threat to his wellbeing. We submit that this coincides with his version (which may not be as coherent as it could have been) due to factors identified in the [Psychologist 1] reports and also his homosexuality.

   Submissions on sexuality and fear of return to Turkey

   13. We refer you to the following AAT decisions:

   1600932 (Refugee) [2017] AATA 678 (31 March 2017) being a decision by Member David Corrigan and, in particular, the DFAT report referred to. At paragraph 35, the Member referred to paragraph 4.107 of the DFAT report as follows:

   In practice, societal and cultural barriers can preclude LGBTI people from living openly, with the exception of a few enclaves in Istanbul, Ankara, Izmir and other large cities where population numbers mean that it is easier to find a social circle or community. DFAT assesses that the vast majority of Turks have conservative views about sexual orientation and gender.

   The following extract of paragraph 4.108 of the DFAT report:

   However, in June 2015 Istanbul’s annual gay pride march, which had taken place for 12 years, was banned by Istanbul’s Governors and stopped by police who broke up the parade with tear gas and water cannons, described by the European Commission as a ‘disproportionate use of force’.

   The following extract from paragraph 4.110:

   DFAT has been told that LGBTI people are at risk of harassment by police or other Government officials. Police harassment and extortion for sexual favours from transsexual persons have been reported to human rights organisations.

   The following extract from paragraph 4.111:

   Credible human rights contacts told DFAT that transsexual men in particular have been subject to violence, ranging from verbal abuse to physical attacks, and murders in a number of instances. One rights group reported 41 deaths of LGBTI people due to hate crimes from 2010-2014.

   In paragraph 37 the Member referred to the United States Department of State report. We refer to the following extracts:

   The United States Department of State have commented:

   While the law does not explicitly discriminate against LGBTI individuals, legal references 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. LGBTI prostitutes reported police detained them to extract payoffs. LGBTI advocates accused courts and prosecutors of creating an environment of impunity for attacks on transgender persons involved in prostitution. ...

   During the year LGBTI individuals continued to experience discrimination, intimidation, and violent crimes. Human rights attorneys reported police and prosecutors frequently failed to pursue aggressively cases of violence against transgender persons. They often did not arrest suspects or hold them in pretrial detention, as was common with other defendants. When arrests were made, defendants could claim “unjustifiable provocation” under the penal code and request a reduced sentence. That provision states punishment “will be reduced if the perpetrator commits a crime under the influence of rage or strong, sudden passion caused by a wrongful act.” Judges routinely applied the law to reduce the sentences of those who killed LGBTI individuals. Courts of appeal upheld these verdicts based, in part, on the “immoral nature” of the victim. ...

   There were active LGBTI organizations in Istanbul, Ankara, Izmir, Adana, Mersin, Gaziantep, Eskisehir, and Diyarbakir, and unofficial groups in smaller cities and on university campuses. Groups reported harassment by police and government authorities. Many university groups in small cities complained that rectors had denied them permission to organize.

   We refer to the following extract from paragraph 38:

   In 2011, Amnesty International stated that the LGBTI individuals to whom the group had spoken “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”. According to Amnesty International, “[g]ay, bisexual and transgender Turks face widespread discrimination and homophobia, often suffering beatings by the police which leave them too frightened to report hate crimes”.

   HRW noted that despite a wide body of documented cases of LGBTI individuals being subject to acts of violence and intimidation, in most cases the “response by the authorities is inadequate if not non-existent”. In a separate report, HRW reported that abuses against gay men are often “abetted and at times perpetrated by the police themselves”. Gangs reportedly go to cruising areas “looking for chances to inflict violence or robbery, and driven by prejudice against those who are not ‘masculine’ enough”, while police rarely respond adequately, sometimes blaming or further harassing victims.

   We refer also to the following extracts from paragraphs 40, 41 and 42:

   40. However, I cannot dismiss as remote the chance or risk that his father or any family member will attempt to locate the applicant and seriously harm him given his father’s past physical violence towards him and the family’s ongoing interest in him. I have taken into account that that the incident with his father occurred a long period of time ago (nine years) and that he hadn’t had any contact with his family (other than his [sibling]) during that period and that he also told the Tribunal that his last contact with his [sibling] was two years ago.

   41. The applicant stated that he was concerned that his family would be able to find him through the electoral website ( which he said listed the city and suburb of a person and that they could call the local mayor and use bribery and he would give them the details including the street name. He said he was also concerned that they could use the central hospital system to find him. I accept that the applicant would be have to register his address with the authorities to avoid a fine and to access government services as per the country information set out on the Departmental file at folio 75. I note that reports indicate that corruption is widespread in Turkey’s public sector. In all the circumstances, I find that the chance or risk that the applicant’s father and other family members would seek to locate him and be able to locate him through any of these channels is a real one and not remote.

   42. Considering the individual circumstances and the totality of the country information, I find there is a real chance that the applicant would face serious harm (including significant physical harassment and significant physical ill-treatment) for reason of his membership of a particular social group of homosexuals in Turkey at the hands of his family.

   Matters particular to the Review Applicant

   14. In our letter of 23 November 2017 we forwarded to you 4 statutory declarations from the Review Applicant’s father, uncle, friend and acquaintance.

   15. In discussion with the Review Applicant’s father[today] he expressed a grave concern for his son’s welfare not only from the authorities or the population in general but also from the children of two of his cousins. He has provided us with an additional statutory declaration in this regard which is attached as Annexure E.

   16. In particular, we refer to the following extracts:

   If [Mr A] were returned to Turkey and were to conduct himself as homosexual or if it were found out in some way, there are at least 2 members of my family who would personally harm him. These are the children of 2 cousins of mine who live in Ankara but are in communication with my mother. The only logical place that [Mr A] could return to if returned to Turkey would be to live with my mother.

   I fear that if my cousin’s children find out about [Mr A]’s homosexuality that they will kill him. I know this may be regarded as an exaggeration. However, we live in a conservative society in Turkey and my cousins families bear the same surname as [Mr A]. I fear that they would kill [Mr A] to “get rid of” the insult to the family name.

   Evidence of homosexuality

   17. As to his sexuality we refer to the evidence that he has provided to the decision maker, at the hearing, his statement by himself and the statutory declarations by his father, uncle and grandmother and acquaintances.

   18. We appreciate that the first hurdle to be overcome by the Review Applicant is to establish that he is a member of a particular social group of homosexuals in Turkey.

   19. As to his homosexual activities, it is clear from, for example, the statutory declaration of his father that his father finds his son’s sexuality abhorrent (although he says he continues to love him as a son). It follows, we submit, that his homosexuality is not something that the Review Applicant would openly discuss with his father and that it appears that members of his family or acquaintances have come across this almost by accident (for example [Mr G] dropping him off at parties which he describes as “for gay people” and his uncle coming across him in bed with another male).

   20. We again refer to the contents of [the applicant’s father]’s second statutory declaration being Annexure E expressing his concern about what he believes is the harm that would come to his son, the Review Applicant, by members of his own family.

   Demeanour

   21. We are concerned at the findings about “vague and convoluted responses” (we refer, for example, page 6 of the decision maker’s record). This appears to be consistent with the responses in the recent assessment by the psychiatrist and also the assessment by the psychologist [Psychologist 1].

   22. We are concerned that responses of that nature which may be prompted by his “interpersonal oddity and rigid thinking consistent with features of an Autism Spectrum Disorder” may be interpreted as the reason to disbelieve his claims.

   23. It is noted that on page 7 of the decision record (4th paragraph) reference is made to “the records indicate that a ‘formal’ relationship between the applicant and [Ms E] commenced 4 to 5 days after they met…”. This appears to be contradictory evidence of [Mr D] and also [the applicant’s father] who states at paragraph 24 that “She ([Ms E]) came to Turkey about three times during which time she and [Mr A] became very close.”

   24. In paragraph 14 of [Mr D]’s statutory declaration he states “She travelled there, I think, three times and they then told us that they had decided to marry and that she intended to sponsor him to come and live in Australia”.

   25. Unfortunately, we have been unable to verify this information from the Review Applicant’s ex-wife.

   26. It is submitted that, having regard to the Review Applicant’s background and method of expressing himself and the comments of friends and family, that the Tribunal should give the Review Applicant the benefit of the doubt and accept that he is homosexual.

   27. We refer also to the following decision namely 1510025 (Refugee) [2017] AATA 980 (30 May 2017) being a decision of Member Tania Flood.

   28. At paragraph 46 the Tribunal stated as follows:

   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.

   29. We refer also to paragraphs 47, 48 and 49 which read as follows:

   47. 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. 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.

   48. 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.

   49. 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.

   The Decision to refuse the Protection visa application

   30. The decision maker appears to have relied on outdated information. For example at page 10 the decision maker refers to a 2014 DFAT report. The decision maker also stated the following in the second paragraph of that page, namely:

   “I advised him that my research indicated that there are active LGBTI associations in Turkey, that the annual Gay Pride march in Istanbul attracted 100,000 participants in 2013 and that there were a wide range of registered support services for lesbian and gay Turks”

   31. The decision maker further stated (last paragraph on page 10):

   “I provided further country information, sourced by DFAT, to the applicant which indicated that the government in Turkey is stable and affective, the judicial system and police force are well resourced, and that avenues for legal redress were available.”

   32. With respect, this does not accord with the country information and findings in the aforementioned two Administrative Appeals Tribunal decisions and also the information referred to below.

   Additional country information

   33. We have previously under cover of our letter of 23 November 2017 provided references or exerts of news articles which we would submit are from credible sources.

   34. We provide the following additional country information.

   (a) BBC report marked F dated 16 November 2017 with the heading:

   “Turkey: German gay film festival banned in Ankara”

   The subheading reads “Turkish officials have banned a festival of German language gay forms due to be held in the capital Ankara, saying that good insight hatred or be targeted by terror attacks”

   The event was backed by the German Embassy. Furthermore, reference is made to LGBT groups complaining about their rights of being kowtowed under the government of the current President and his party which is rooted in conservative Islam.

   Furthermore, “they say they are frequently targeted with animosity, harassment and abuse and that authorities have failed to uphold their rights”

   “In Istanbul, the annual gay pride parade, once a popular event has been banned for 3 years in a row”

   (b) As reported on 19 November 2017 (further report from BBC attached marked G) “From Saturday 18 November until further notice, all film and theatre events, screenings, panels, colloquium, exhibitions, etc… have been banned” – the city administration said on its website.

   The article then deals with increasing concern among gay activists in Turkey that their rights are being curtailed by the government of the President and the party and that gay activists had “been subjected to various forms of discrimination including harassment, abuse and rape”.

   It appears to be correct that up to approximately 2014 those gay persons were less harassed than is now the case.

   Since 2015 there appears to be a crackdown on LGBTI persons which appears not to have been taken into consideration by the decision maker.

   (c) Annexure H being article by Amnesty International dated 5 July 2016. We refer to the following extracts from page 1, namely:

   “As is the case elsewhere, Istanbul Pride March is an important statement about the visibility of LGBTI people and an opportunity for their allies to show solidarity.

   But since last year (2015) this highly visible celebration has been unjustifiably and unlawfully suppressed.

   In June 2015, Istanbul Governor Vasip Sahin banned Istanbul Pride on the day it was due to take place and police attacked revellers with water cannon, tear gas and pepper ball projectiles”

   (d) World News article being Annexure I dated 23 November 2017. We refer to the following extracts “Turkey’s LGBT community says the governments banning of LGBT events is not only an illegal curtailing of personal freedoms but further proof of the government’s anti-secular agenda, with some saying they are increasingly worried for their safety.

   Respondents to a Guardian callout said they thought Recep Tayyip Erdogan (the President) was waging a war against them, and they felt a change in mood towards their community across the country – including in areas where they have previously enjoyed personal freedom”

   On page 2 the following quotation from the President was referred to namely that the President had said “empowering gay people was against the values of our nation” echoing a sentiment he expressed earlier in the year after cancelling Istanbul’s gay pride parade for a third year in a row.

   “According to those who responded to our callout, attacks on the LGBTI community are frequent and it is ironic that authorities sight threats to public order as a reason for curtailing freedoms”

   (e) Australian Government’s SmartTraveller.gov.au most recent report on Turkey being Annexure J which states on page 15 of 22 under the heading ‘Local Customs’ “Homosexuality is not illegal but is not widely accepted in Turkish society. Avoid public displays of affection”.

   (f) UK Home Office Report on Turkey Annexure K. We refer to pages 18 and 19 under the heading “Homophobic Violence”.

   35. The above represents submissions in support of the Review Applicant’s claim that he is a member of a particular group being homosexuals.

   36. In the circumstances it is submitted that applicant does meet the criteria for the grant of a Protection visa under subsection 36(2)(a) and subclause 866.221(2) of Schedule 2 to the Migration Regulations. Alternatively, if it be found that applicant is not a person to whom Australia as protection obligations under the Refugees Convention we submit that he nevertheless meets the criterion for a Protection visa in subsection 36(2)(aa) of the Migration Act. This is so because we submit that the Minister/delegate/Tribunal should have substantial grounds for believing that, as a necessary and foreseeable consequence or the non-citizen being removed from Australia to Turkey, there is a real risk that the Review Applicant will suffer significant harm.

145.   In MIMA v Khawar,[39] Kirby J drew a distinction between those countries that, however imperfectly, provide agencies of the law and non-discriminatory legal rules to address the problem of domestic violence from those countries that, for supposed religious, cultural, political or other reasons, consciously withdraw the protection of the law from a particularly vulnerable group within their society. Persons in Australia who are unwilling to avail themselves of the protection of their country where that country falls in the former category do not fall within the Refugees Convention. However, depending upon the evidence and the facts found, the Convention may well be available to persons from the latter category of country.[40]

[39] (2002) 210 CLR 1.

[40]        MIMA v Khawar (2002) 210 CLR 1at [130]-[131], per Kirby J. Discriminatory failure of state protection is discussed further in chapter 4 of this Guide.

146.   However, as the Federal Court stated in A v MIMA,

there is no golden rule which says a person may never be given refugee protection if they come to Australia from a democratic country governed by the rule of law with generally effective judicial and law enforcement institutions.[41]

[41] (1999) 53 ALD 545 at [39].

147.   Each case turns on its own facts; and the Tribunal should ensure it addresses the particular circumstances of the applicant and the particular harm feared when considering the question of state protection.[42] Even if the general evidence points to a reasonably effective police force and a reasonably impartial system of justice, particular attention may need to be given to whether it meets the required standards in circumstances where protection sought was not provided or was not effective,[43] or where the claimed persecution is by ‘rogue’ state officials,[44] or where an applicant is in a particularly vulnerable position.[45] That said, it is clear that the required system of protection is one of reasonable, but not perfect, efficiency,[46] and may not necessarily provide a guarantee of safety or remove any reasonable basis for fear.[47]

[42]        See MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [116] per Kirby J; Marshood v MIMA [1999] FCA 1415 (Kiefel J, 15 October 1999); M251 of 2003 v MIMIA [2005] FMCA 582 (McInnis FM, 5 May 2005); SZAYT v MIMIA [2005] FCA 857 (Wilcox J, 24 June 2005); SZAIX v MIMIA (2006) 150 FCR 448. See also SZQUB v MIAC [2012] FMCA 74 (Driver FM, 8 February 2012) at [11] where the Court stated that the Tribunal was entitled to have regard to the particular facts of the case, which may run counter to circumstances appearing from country information (upheld on appeal: SZQUB v MIAC (2012) 127 ALD 517).

[43]        See, for example, M251 of 2003 v MIMIA [2005] FMCA 582 (McInnis FM, 5 May 2005); SZAYT v MIMIA [2005] FCA 857 (Wilcox J, 24 June 2005); SZAIX v MIMIA (2006) 150 FCR 448. Note, for example, obiter comments of the Court in SZOID v MIAC [2010] FMCA 517 (Driver FM, 19 July 2010) at [29] that it would be difficult to say that protection is effective if it is dependent upon payment of a bribe.

[44]        See, for example, SZDWR v MIMIA (2005) 192 FLR 299 and on appeal, SZDWR v MIMIA (2006) 149 FCR 550. Note that the Full Court in SZDWR rejected the proposition in VRAW v MIMIA [2004] FCA 1133 (Finkelstein J, 3 September 2004) that in the case of persecution by rogue state agents a different standard of protection is required, specifically, that there will only be adequate protection if the state is taking action to curb their illegal and unauthorised actions. Nevertheless, as Smith FM indicated in SZDWR at first instance at [36], even when a single standard is applied, the Tribunal of fact must appreciate the different risks attaching to persecution by state agents, even where unauthorised and criminal, and of the need to find available and effective protective measures to deal with this type of persecution before finding that the applicant’s claim is not made out.

[45]        See, for example, SZAYT v MIMIA [2005] FCA 857 (Wilcox J, 24 June 2005); SZAIX v MIMIA (2006) 150 FCR 448.

[46]        MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117] per Kirby J; SZDWR v MIMIA (2006) 149 FCR 550 at [22].

[47]        MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [23], [26] per Gleeson CJ, Hayne and Heydon JJ.

148.   It may be noted that, regardless of the content of the relevant ‘international standards’, where the issue of state protection is considered in relation to whether a fear of persecution is well-founded, what is relevant is whether the protection that is available is sufficient to remove a real chance of persecution. However, on the majority view in S152/2003, even where state protection is not sufficient to remove a real chance of serious harm from non-state actors, Convention protection might not be engaged if the level of protection provided meets international standards.[48]

[48]        MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28]. As noted above, McHugh J at [83] disagreed; however the difference between his Honour’s approach and the majority view will be significant to the outcome only where there remains a well-founded fear of serious harm notwithstanding that the country in question provides the level of protection required by international standards.

149.   Needless to say, there is no need to test whether a state complies with the international norms of the provision of adequate protection unless the applicant is in need of that protection, that is, unless he or she has a real chance of suffering serious harm.[49]

[49]        SZDBB v MIMA [2006] FMCA 298 (Raphael FM, 7 March 2006) at [7]. See also the authorities referred to at n 2.

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