1513556 (Refugee)

1513556 (Refugee) [2018] AATA 2318 (14 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513556
COUNTRY OF REFERENCE:                  Turkey
MEMBER:Rodger Shanahan
DATE:14 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 June 2018 at 10:52am

CATCHWORDS
Refugee – Protection visa – Turkey – Ethnicity – Kurdish – Political opinion – Member of BDP – Kurdish political activist – Member of illegal terrorist organisation – Draft evader – Victim of physical abuse by police – Forced conscription – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 91R, 417, 424AA, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Turkey, applied for the visa on 6 September 2015.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that his father and his relatives suffered from inhumane treatment at the hands of the Turkish government between 1981-84. His father had been politically active within pro-Kurdish political parties since the late 1980s, and had been beaten in front of his wife and daughters by the police. His father and uncle also taught the applicant to be proud of his Kurdish heritage and taught him the Kurdish language.
The applicant began to attend protest activities with other Kurds from the time he was in high school from 2005. They usually protested on the streets and numbered from 10-15,000 people. He participated in weekly Kurdish protests usually in a four-storey building in Istanbul, although larger ones were held in public.
In 2008 he became a member of BDP – all members of BDP are Kurdish. [In] March 2008 at [an event] (3-400,000 people were there) he was arrested along with around 30 other Kurds who were members of DTP. The arrest occurred as he was heading for a bus to leave the protest area. He was told that his participation at the protest, including holding a Kurdish flag was not permitted.
He was taken to a police station, told to undress and left in his underwear. His details were taken, he was photographed and had his feet tied together. He was then taken to an individual room, two metres by two metres. The door was closed and then two policemen began beating him with sticks on his back, legs, hips, shoulders and arms and they used abusive language. He had red and black marks all over his body where he had been hit.
He was left in the room and after an hour the policemen returned and beat him with a stick again for 30 minutes, threatening to kill him if he was caught attending protests and participating in terrorist activities again. He was accused of fighting with the PKK. The next day he was released.
He went home to rest and recover for three days and then went back to university. When he arrived the police were waiting for him and took him away. They were angry and asked why he went to Istanbul. He said he went to attend [the event] and was told by the police to stop supporting pro-Kurdish activities or he would be killed. They told him that he had already been under surveillance. He was detained for two hours but not beaten as he showed them the bruises from the previous beating he had received.
Until [June] 2008 he only attended a few secret meetings organised by him and fellow students and didn’t come to the attention of authorities. He returned to Istanbul and then began pro-Kurdish meetings with DTP each week. Around this time he began to notice police cars driving past in his street, looking at his house. It continued until August 2009.
Around [September] 2008 he attended a pro-Kurdish rally at a sport stadium with around 15,000 people. The police broke up the meeting around 10 pm but he wasn’t arrested. [In] August 2009 the police came to their house, asked for the applicant and then began to search the house, found him in his room and arrested him. They were looking at a photo of him when they arrested him and he saw that it was taken of him attending the rally.
He was taken to the police station, told him he’d been warned about attending these rallies and then pushed a rifle barrel with great force into his head. They reminded him that he would be severely punished of caught at pro-Kurdish activities again. He was released after two hours. He moved to his cousin’s house until he left Turkey for Australia. If he returned to Turkey he would continue to support pro-Kurdish political activities and the BDP.
AAT Hearing
The applicant was asked and agreed that he knew everything that was in his protection visa claim and that it was true and correct. The documents in his file were gone through with the applicant. He said that there were court documents that he thought were real but then he was advised by the Immigration Department they weren’t valid. Asked if he checked them before he gave them to the Department he said that he didn’t check and this was his fault.
He agreed that he had provided fraudulent documents to the Department and to the Minister’s office and when asked what he had done to check that they were valid documents before he had submitted them, he said that he didn’t know they were false when he received them because he was in a bad psychological condition. The document that appeared to be a search and capture warrant (with an English translation) he advised was also fake.
Asked about the photos he had provided at the hearing he claimed they were from the Kurdish Association [and] were from recent and four or five months ago. This showed he was taking part in Kurdish political activities. He was also active in [City 1] – asked if he had evidence he said he could get a paper. He was told that photos with date/time stamps were better than letters or written documents. He was asked if he worked in [City 2] and said he had a [trade] [licence]. He was fully employed.
He presented a psychologist’s report and was asked if he had treatment prior to December 2017 (the date of the report) and he said he had treatment in [City 1] in 2015. Asked about the period between 2015 and 2017, he said there was a person he spoke to who was fluent in Kurdish and Turkish. He was asked if he could provide a coherent psychological report so that the Tribunal could decide how much weight to give his psychological state that he claimed explained some aspects of his evidence previously.
He was asked about the images and untranslated text he provided and he claimed that it was his social media profile [and] showed his likes and sharing. It was put to him that there was a big gap between September 2015 and May 2018 – he claimed he became anti-social and didn’t use it all the time. It was put to him that a gap that only re-starts the same month he has a hearing may be suspicious. It was put to him that there appeared to be only shares and likes, and that he needed to provide English-language translations if he wished them to be considered by the Tribunal.
He claimed that if he returned to Turkey he could be jailed by the police or the military or forced to do conscription. He also claimed there could be friction with people because he was Kurdish. Told to be more specific he claimed that police could arrest and jail him because he supported Kurdish activities. The rules are more strict these days.
Regarding his conscription, he claimed that his service was postponed for four years (he was at [a] University in Turkey) until 2015. Asked when in 2015 he claimed he didn’t remember. It was put to him that if he claimed to fear harm because he had not done conscription then it was reasonable to believe that he would know what date he had deferred to and what the deferment rules were. He needed to be specific about his claims.
He said he never planned to return to Turkey so he never paid attention to the date and didn’t care about the date. He claimed the document he had given about his deferment (folio 9) was an accurate document however. The Tribunal looked at the document and noted the deferment was until [a date in] December 2015. Asked what happened after this, he said that nothing happened then that a paper was sent to his house telling the person to go to the military or he would be arrested
He claimed that he never had this paper and that he didn’t know where it was and that it was lost. He claimed he could get it and it was put to him that he had several years to get this document before the hearing. He claimed that he was scared once he heard that the court documents were fake. He then said he could get the document and that the Tribunal could ring the Turkish conscription office now and speak to them. It was put to him that the Tribunal would not be ringing the Centre as it would have no idea who it was speaking to. He said he could get the documents. Asked if he had provided any document to the Department or anyone else relating to his conscription other than the deferral document giving [December] 2015 date.
Asked if there were any ways he could get out of military service in Turkey, he claimed that there wasn’t. He said that after the deferment he had to do 16 months. Asked if there was a way to buy himself out of military service he claimed that there wasn’t. It was put to him that country information indicated that 200,000 people had bought themselves out of military service in Turkey due to a 2014 law. He was asked why he didn’t know about this; he claimed there were 10 million Turks living overseas and he believed that if he had a full-time job for two years minimum overseas he could then pay for an exemption.
This was if the person had received a legal visa and worked in the country. This wasn’t the case with him. It was put to him that country information indicated this was a different rule and applied to people older than 38. It was strange that he didn’t know about simply buying his way out of service. He claimed he didn’t know this other way. He was told that it raised questions in the Tribunal’s mind about his fear if he was unaware of this rule or when his deferment ended. For all the Tribunal knew he may have already bought his way out of his service.
He was advised about s 424AA and it was put to him that his adviser had provided a submission in September 2015 that included a document purportedly from the Defence Ministry that said because he hadn’t done his military service he was now wanted as an evader. Firstly, the document was dated [in] August 2015 which was four months before his deferment was over, and the document also said that he could apply for a deferment.
He had said when asked at hearing that there were no other documents pertaining to his conscription yet this document had been sent by his adviser. Its validity must be questionable given its date – this would call into question his credibility as well as raising questions about whether the document was real or fake.
He claimed he personally applied to the military service branch to receive this document, they didn’t send it to him. They sent it to his home and his family sent it to him here. It was put to him that he had been asked whether there were any other conscription documents and he had said there weren’t. He said his military paper came when he was applying to the Minister. Asked to clarify what document he was referring to, he claimed that he was a bit confused. He was talked through the 2013 deferment document and the other. He claimed that he rang the soldier conscription centre and asked for the deferment document and they sent it to his house.
He was then told again about the fact that his deferment letter was dated 2013 and the arrest document was sent four months before he had actually broken the law. He claimed that he didn’t do and didn’t intend to do his military service and it was normal that they would send this letter four months in advance. The Tribunal said that it didn’t understand what he was saying and it didn’t make sense that they would send him this letter. He claimed he called them from overseas and told them he wanted to know about his military service and asked them to send to his parents a letter about his military service.
He was advised that he was being very vague and the Tribunal didn’t understand – he claimed psychologists had given him many comments about this. The Tribunal again asked why he would be sent a letter saying he was a draft evader when he wasn’t. He claimed that he wanted a letter showing the Australian Minister that he was due for military service. He was again asked why the Turkish military would say he was an evader when it wasn’t true. This raised questions about the truth and validity of the document. He claimed that the letter just said his military status, not that he was an evader. The letter was read to him that stated he was an evader. He claimed that it could be a translation error. He was given the opportunity to provide a correct translation post-hearing if he believed it not to be correct.
Asked why he couldn’t just do his military service on return to Turkey. He claimed that he didn’t want to go to Turkey and fight the Kurds. They were on the border doing operations. It was put to him that much of the army wasn’t fighting the Kurds and that it was in the cities guarding things. He claimed that Kurds had a difficult time in the military; other soldiers were bashing Kurds. He was asked if he had country information and he said it was in the news and on the internet and he was asked to provide some of this.
It was put to him that the Turkish army was enormous and he could serve in a logistics unit rather than conducting operations in south-east turkey. He claimed this was a possibility but he heard that Kurds were committing suicide because of the pressure. He was asked to provide some evidence about the rate of Kurdish suicide rates in the military against normal suicide rates.
Country information was put to him that said it was quite expensive for the average Turk to buy his way out of military service but that the applicant was earning good money. The document he gave the Tribunal showed that up to February 2018 he had earned AUD [amount] in his job this FY. He should have plenty of money to buy his way out of military service and may well have done it. He claimed he wouldn’t be in this category as he would need to be here for three years working for them to give this to him.
He was advised again that there were two applicable laws regarding buying his way out of conscription, and it was strange that he didn’t claim to know this law despite fearing being conscripted. He again said he wasn’t qualifying to buy his way out of service – it was put to him that he previously said he didn’t know about the law yet he now said he didn’t qualify for it. This could call into question his credibility as a witness. He claimed that he now understood the second way of avoiding military service – the government did it sometime but not very often. He hadn’t been able to do it as his financial situation didn’t allow him to do it.
Asked if he enquired about the scheme, he claimed that he didn’t. It was put to him that he had said before he didn’t know about it, now he claimed that he knew about it but didn’t have enough money even though he hadn’t enquired about it. The Tribunal had concerns about his credibility and whether he had already bought his way out of military service. He claimed that he didn’t want to support the Turkish military.
Regarding his claim to fear harm because of Kurdish political activism, he claimed that his whoe family supported these movements and he supported them. He was asked if he spoke Kurdish and he claimed he understood 80 percent but wasn’t fluent. Asked why he wasn’t fluent he claimed there were problems learning Kurdish in Istanbul and his sisters had to leave school because of this. His family protected him from harassment by not teaching them Kurdish. It was put to him that in his statement he claimed that his father and uncle taught them about their culture and the Kurdish language.
He claimed that they taught him but he wasn’t fluent. Asked why he wasn’t fluent even though his Kurdish nationalist uncle and father taught him and he lived in this Kurdish nationalist household. He claimed that he was criticised at school for speaking Kurdish so they didn’t speak Kurdish at home to protect him. It was put to him that it wasn’t credible that they wouldn’t talk to him in Kurdish at home but yet they would teach him Kurdish at home. He then claimed that he knew Kurdish but it had gotten worse over time.

He was active in Kurdish politics while at school – the students would speak in Kurdish and discuss Kurdish politics. They tried to start a Kurdish Association but received attention from the police. The police would bar them from gathering. Other students were also not in favour of them doing this. His family supported Kurdish activities and he continuously took part in Kurdish party activities at high school – he went to weekly meetings [and] attended all celebrations.
Larger gatherings were in large enclosed sports stadiums. He volunteered to work for them. He did this from around 2005 until 2007 but did things until 2009, when he left Turkey. He was with DP, BDP and KDP. Asked if he had any photos of him at any of these activities during the four years. He said he had no smart phone. He was asked if any of the other party members had taken any photos that would indicate he was active with any Kurdish groups. He said there were none and agreed that the Tribunal needed to be reliant on his oral testimony, except for letters that he had.
It was put to him that letters were easy to fake and it was very difficult to do any due diligence on them on the part of the Tribunal. He said he could ask his friends if they had photos – it was put to him that he had been in Australia for eight years to do this but would be given some time after the hearing. He claimed he had a jumper in Kurdish colours – it was put to him that this wasn’t likely to carry any weight as evidence. He had had eight years to gather evidence for this claim and if he could not produce any it may call into question whether there was any.
Police took him into custody sometimes, around three times. He wasn’t charged but was held and bashed. Asked if there was any evidence of the bashings, such as photos of his injuries that were posted on social media. He claimed he didn’t have any and the Tribunal would need to rely on his oral testimony, other than a scar on his head that he said came from this. It was put to him that the member had scars from rugby injuries and he was asked if he could link the scar with a beating from the police and he said that he couldn’t.
Asked why he was singled out for arrest, he claimed that he had helped organise some of the events. He would organise the meeting area and some of the people in the area and he would issue some people flags. He would also sell tickets to the venues.
He couldn’t remember if the police took photos of him (he later said they did it once). No fingerprints but they took his name. He was arrested for the first time in 2007 at [an event]. It was put to him that he was unlucky as there 3-400,000 people and only 30 people appear to have been arrested of whom he was one. He claimed that he was at a location where there was a fight. He was asked why they didn’t target the organisers (he agreed that he didn’t organise the 400,000 people). He claimed there were only 30 people in the vehicle he was in.
It was put to him that he claimed the police threatened to kill him and he was beaten for an hour and heavily bruised which was very serious, then beaten with a stick for another half hour, starved, and put into a cold room yet four days later he was on a bus out of the city going to another protest. He claimed that he went to the university, not a protest. It was put to him that he described a very serious beating by two police officers without receiving any medical attention and then got on a bus four days later – this didn’t sound plausible.
He claimed he wasn’t beaten for the whole time, he was beaten then questioned. It was put to him that he had written that he had been beaten for around 60 minutes ‘without asking any questions’. This was inconsistent. Regarding his travel on the bus, he claimed that the 90 minutes wasn’t always being beaten continuously as they were beating the others too. It was put to him that he said in his statement he had been taken to an individual room and individually beaten for the periods mentioned, not as part of the group. He claimed other people were taken and the police beat others also.
He had to go to university as he had final exams. He was asked why he didn’t seek a deferment by showing a medical certificate or the pictures of his bruising after his alleged bashing. The adviser said he didn’t think such things were given in Turkey and the member opined that this was perhaps outside the adviser’s area of expertise. The applicant said the police didn’t break any of his bones, they knew where to hit him.
When he arrived off the bus the police took him from the bus stop to the police station and questioned him because they understood he was going to [the event]. They knew he was on the bus because all the students would have to come there, and his appearance showed he was Kurdish. He was recognised from his picture (there weren’t many Kurds at the university). He was questioned but not beaten, only threatened with death if he was caught in such activities again.
Asked if he was caught engaging in such activities again, he said it was in Istanbul and he was beaten again. He then understood the situation was serious. It was put to him that he must be a very committed Kurdish activist to continue to defy the authorities after the beating he received. He claimed he wasn’t a leader but he spoke to the people. It was put to him that he continued to protest even after being threatened with death which was hard core. He agreed that he accepted the risk.
Asked what he had done since being in Australia to advance Kurdish issues given his profile as a Kurdish activist in Turkey, and having come from a hard-core Kurdish activist family in Turkey, he claimed he took part in activities in [the local suburb]. He had issues there and so stopped going there for a while. It was put to him that he had been at Kurdish rallies of 400,000 people in Turkey and the photos he presented in Australia seemed a bit ‘sad’ by comparison.
He said that he didn’t take photos – he was asked if he was active on social media criticising the Turkish government and he said he hadn't been. He was asked if he could present any evidence of a profile as a Kurdish activist since being in Australia, given the high profile he claimed to have had in Turkey. There were significant Turkish military operations against Kurds in southeast Turkey these last few years to protest against. This raised questions as to the real profile he had in Turkey. He claimed that he attended the association and protests but didn’t have photos of this.
It was put to him that he claimed he had to flee Turkey to Australia and he was asked whether he immediately applied for protection. He claimed that he was in a bad psychological condition and didn’t speak the language and didn’t know many Turks or how to apply. He was asked what steps he took to research the issue before he left Turkey given he claimed he was fleeing to Australia, and what steps he took to find out the process once he was here. There was a concern that he had taken five months to apply for protection after arriving in the country which may call into question whether he was fleeing anything.
He claimed that he concentrated on school and learning English. He was asked why he didn’t look up the Turkish-language DIBP website or contact a Turkish-speaking migration agent. He said he didn’t do much research and met some Kurds later and asked them about applying. He went to RACS. It was put to him that he was an adult, went to a university in Turkey. He claimed he had a one year visa so didn’t think there was a hurry. It was put to him that he had claimed to have specifically fled to Australia and so it was reasonable to believe that he would avail himself of information relating to seeking protection.
He again blamed his psychological condition. Asked if this was pre-existing in Turkey he claimed that it was. Asked if he was treated for it there he claimed he had been pressured at primary school and wouldn’t speak to people. Asked if he was on a mental health plan in Turkey he claimed that he hadn’t seen someone there. Asked why he thought he had psychological problems in Turkey if he hadn’t seen anyone, he said he had read something that made him think he had. It was put to him that the psychologist report in Australia could be explained by anxiety because of his failure to gain a visa in Australia because his story wasn’t believed.
He was told about s 91R(3) and it was put to him that his attendance at Kurdish events in Australia and his social media page may have been done solely to improve his refugee claim. The degree of activism in Turkey he claimed to have undertaken doesn’t appear to have been replicated in Australia, which may call into question whether he was ever active in Turkey as a Kurdish nationalist. He claimed he always supported Kurdish politics and had this from his family. He didn’t discuss politics much on social media, he did it by attending Kurdish meetings.
Regarding the issue of providing false documents to the Commonwealth and a Minister, it was put to him that this was potentially serious. He claimed he didn’t know the papers were false. A friend’s friend called [Mr A] was in Turkey and spoke to the applicant’s cousins in Turkey and found out what was happening to the applicant. On his own accord [Mr A] decided to help him by putting this false document in their mailbox in Turkey.
A third party (his cousin) was told to take the documents from the mailbox to his father (sometimes mail was lost in the mailbox). He was asked what documents were involved, he claimed that the court document was forwarded onto the applicant by his father. Asked where the original court document was, he claimed that he thought he had given it previously.
Asked how he told DIBP the way in which his father received the paper, he claimed that it was the same way he described here. Under s 424AA it was put to him that in his DIBP interview some concerns about the veracity of the document were put to him and he claimed that his father picked it up from the police, which was inconsistent with what he had said today.
These raised concerns again about the applicant’s credibility and that he may be fabricating both the document and the story surrounding it. He claimed he never said his father got it from the police. It was put to him that the member had listened to the interview and if he believed it was incorrect he needed to provide an alternative translation.
Subsequent to the court documents he had also said that he had been sent a ‘search and capture’ warrant. Under s 424AA it was put to him that he had submitted the false document in November 2013 which was different to the other false court documents which were given in March 2013. So within a period of eight months he submitted two separate fraudulent documents so the concern was that they weren’t given to him in one batch by another person and he had done this deliberately knowing them to be false.
He claimed that he hadn’t done anything wrong intentionally. The other people were trying to help him. Asked if they sought to appeal the decision given it appeared to be unfair, there was no summons or due process by the look of it. He had taken no steps to verify the documents or to launch an appeal. This lack of action may be because he knew them to be fake. He claimed again that his psychology wasn’t good at the time. It was put to him that the psychologist report didn’t appear to show him as being dysfunctional so he could have appealed the decision.
He claimed he was shocked, didn’t think they could be false and didn’t wish to return to Turkey so it wouldn’t be a problem. It was put to him that even if he didn’t think he would return to Turkey he would have had to reveal that he had a 12 year prison sentence for belonging to a terrorist organisation. It was unlikely he would pass a character test for an Australian visa, so there was every reason to appeal the court decision.
Asked if he had any problems leaving Turkey, he claimed that there were none as he gave a bribe to customs to clear him. Asked why he had to bribe someone given he hadn’t been charged he claimed that he had been arrested many times. His father arranged this.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa on 22 October 2009, and applied for a protection visa on 31 March 2010. This was refused on 12 January 2011 and the decision affirmed on 27 April 2011. A Ministerial intervention request under s 417 was requested on 10 April 2013 but did not meet the guidelines for referral to the Minister. Another protection visa application was lodged as a result of SZGIZ on 28 August 2013, which was refused on 29 September 2015. I have sighted a copy of his passport and accept that Turkey is the applicant’s country of nationality.
The applicant is a single male who claimed that he would be forced to do conscription or jailed if he refused. He also claimed that police would arrest and jail him because he supported Kurdish activities. To the extent that it is relevant I have taken into account the June 2014 DFAT Thematic Report – Kurds in Turkey and the September 2016 DFAT Report - Turkey.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account a psychological report dated [in] May 2018 (folios 108-114) but lend it little weight. It has accepted claims of abuse and mistreatment in Turkey that I have found to have been fabricated, and it makes observations about what he will experience on return to Turkey which are wholly inconsistent with the tribunal’s findings.
A single document (untranslated) was provided post-hearing (flio 145) although it is not apparent to which of his claims that it applies as there was no context given that may allow the Tribunal to decipher the intent of the applicant in providing it. Some English phrases (such as 457 visa, Australian citizenship and income statement) are highlighted but without any explanation. I lend it no weight in support of this or any other of his claims.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, that he has knowingly provided false documents to the Commonwealth and to the Minister, and that he fabricated his claim in order to be granted a protection visa.
Knowingly Providing Fraudulent Documents to Commonwealth Officials
I find that the applicant has knowingly provided a false October 2013 ‘arrest warrant’ purporting to be from Istanbul Public Prosecutor’s Office (folios 71-3), a false court decision from [in] October 2009 sentencing him to 12 and a half years’ jail for belonging to and recruiting for an illegal organisation (folio 10), a false criminal record check dated [in] April 2012 (folio 90) and a false document from the Turkish Ministry of Defence (not present on file but it is referred to in the DIBP decision at folio 89) dated [in] August 2015 stating that the applicant is now wanted as an enlistment evader.
I do not accept that the applicant was an unwitting victim of friends and/or relatives in Turkey trying to help him by providing him with false evidentiary proof to the Australian authorities. Rather, I find that he knew the documents to be false at the time he submitted them and the claim to be ignorant has only been raised once the fraud was discovered.
To begin with, he has previously submitted a document from the Defence Ministry stating that his conscription deferment concluded [in] December 2015. The deferment was also given on the basis that he was a domestic student at [a] University. Given he had a deferment until [December] 2015 it is implausible that he would be wanted as an enlistment evader in August, four months prior to this date.
The claims regarding his court document are equally implausible. Despite never receiving any notification of charges or a court summons, the document noted that the applicant had a defence counsel when he and his family claimed to be unaware of any such case. The applicant never sought to contact the defence counsel or have his family do so, nor did he or his family seek to appeal the verdict. Given that, regardless of the possibility of jail time he would also have to declare the conviction for any future visa application (including Australia) it lacks credibility that he wouldn’t at least have explored the possibility of launching an appeal or seeking to contact the defence counsel to find out exactly what occurred.
Finally, he was inconsistent in recounting how his father allegedly received the document. He claimed during the hearing that a friend’s friend arranged for the letter containing the court document to be taken from the family’s mailbox and delivered to his father at their house. Yet during his DIBP interview he claimed that his father picked it up from the police station. I do not accept his denial that he ever said this – he was given the opportunity post-hearing to give a different interpretation of his interview yet failed to do so.
Kurdish Political Activism
I do not accept that the applicant has ever been, or will be a Kurdish political activist in Turkey. His claims relating to Kurdish activism in Turkey rely entirely on his oral testimony which I have found lacks credibility. There are a number of other reasons why I do not accept that the applicant has ever been a Kurdish activist.
To begin with he is not fluent in the Kurdish language, which is strange for someone who comes from what he claims was such a staunchly pro-Kurdish family. He was also inconsistent in his oral evidence, claiming during the hearing that his family protected him from harassment by not teaching him Kurdish, yet in his written statement he claimed that his father and uncle taught them about their Kurdish culture and the Kurdish language. I don’t accept that he was taught but wasn’t fluent as this only came after the inconsistency in his evidence was pointed out.
I also do not accept that he was ever arrested, let alone detained or beaten by Turkish authorities because of his Kurdish identity. His various accounts lack credibility for a variety of reasons. First, the account of his arrest in 2007 at the [event] is both coincidental and inconsistent. I find that it is extremely coincidental that from amongst a crowd of 300-400,000 people he was one of 30 people who were arrested.
Although he claimed that this was the number of people in the vehicle in which he travelled, I am unaware of any large scale arrests outlined ion country information available to the Tribunal, nor was any provided by the applicant. I also note that in his hearing, he claimed he was arrested as he was at a location where there was a fight. In his statement however, he claimed that it was in 2008 and he was heading for a bus to leave the area and was arrested because he held a flag and participated in the meeting. The only mention of a fight at a protest meeting in his written statement was in September 2008 and he was not arrested on that occasion.
The account of the beating after his [arrest] also lacked credibility. The intensity of the beating, by two police officers for 60, then for another 30 minutes appears out of proportion to the low profile the applicant had at this stage. The mechanics of how two police officers could beat the applicant with a stick for this period of time in a cell measuring only two metres by two metres also raises questions in my mind.
He was also inconsistent in his account of the beating, saying that they weren’t beating him continuously as they were also beating the other prisoners. There is no mention of the other prisoners being beaten in his statement and he says that the two officers ‘beat me with a stick again for around 30 minutes’, again without reference to a break in order to beat other prisoners.

Despite this prolonged beating he never sought medical attention and three days later was able to get on a bus and go on an overnight trip. I do not accept that the applicant had to do this to attend final exams given it is reasonable to believe that it would have been open to him to seek a medical certificate to delay his exams or seek some other avenue to accommodate his injuries. Whilst the adviser claimed that this was not an option in Turkish universities, the Tribunal is not aware of any country information that would support such a claim, nor was any provided by the applicant or his adviser post-hearing.
Because I do not accept that the applicant was ever active or perceived to be active in Kurdish politics or of interest to the security authorities for being so, it follows that none of the other activities in which he claimed to be of interest to the police (such as the house search or various detentions), ever occurred.
I do not accept that the applicant has genuinely been a Kurdish activist, or would be perceived to have been one since being in Australia. I have taken into account a letter from [a Kurdish organisation] (folio 142) saying that they have known him since 2009 and that he has been attending and taking part in their community activities whilst in [City 2] and a membership receipt dated [in] May 2018. I have also taken into account a range of [social media] entries he provided pre- (folios 66-73) and post-hearing (folios 118-128) and some photos he provided (folios 74-76). I lend them little weight.
There is no evidence of him being politically active in [City 1] for example, where he has spent many years. His membership receipt of the [organisation] was dated five days after his AAT hearing, and his letter submitted was one day later than this. The photos have no context given with them, although two appear to show YPG symbols (a Syrian Kurdish group) and one of the photos has a HDP sign in the background. The applicant is either alone with no other people around (folio 74), taking a selfie with people in the background (folio 76) or apparently introducing himself to someone (folio 75). None of them indicate any degree of intimacy with the organisations (or in two cases even any interaction). The letter simply says that he has been taking part in ‘community activities’ whilst in [City 2]. There is no mention of any political activities or alignments with any Kurdish political groups.
The earliest [social media] entries appear to be from November 2011 and there are long periods of inactivity, lots of personal, non-political entries and occasional ‘likes’ and ‘shares’ of what could be Kurdish-themed photos, most of which appeared to be clustered in April-June 2015 or May 2018. These clusters appear to coincide with the decisions being made by DIBP and AAT regarding his claims, and I find the timing suspicious even if the content is banal and would be of little interest to security authorities if they ever saw it. However, given I have found that the applicant is of no interest to authorities in Turkey I am satisfied that the possibility of authorities viewing his [social media] pages is so remote as to be virtually non-existent.
I have also taken into account some photos (folios 103-105) that he claims show his family as being politically active in the past. To begin with there is no way of verifying that the photos are of family members nor, with the exception of one showing two people in front of a sign with a DEHAP logo, that they have any connection whatsoever with political activity. I therefore lend them little weight.
Because of the applicant’s lack of any pre-existing interest in Kurdish political activism I find that whatever activities he has undertaken in Australia that may be construed as constituting Kurdish activism has been deliberate and targeted. As I advised the claimant during the interview, s.91R(3) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
Kurdish Identity
I accept that the applicant is Kurdish, however I do not accept that there is a real chance of serious harm because of this. Country information[1] indicates that there is a moderate level of official discrimination and of societal discrimination but that this varies across Turkey. I do not accept that this discrimination meets the threshold of serious harm for 5J purposes. I note that the applicant was educated in Turkey, including at a tertiary level, was able to obtain a passport and freely travel overseas to study. Whilst it is plausible that he may have experienced discrimination during his schooling, I note that this was over a decade ago and he was still able to live a normal life during and after that.
[1] DFAT Country Information Report – Turkey, 5 November 2016
Another issue that leads the Tribunal not to believe that he faces a real chance of serious harm on return to Turkey because of either his Kurdish identity or his alleged activism is the delay in applying for protection. He took five months to apply for protection after arriving in Australia in 2009 – I do not accept that this was because he was in a bad psychological condition, because he had a one year visa or because he didn’t speak English.
He claimed to have specifically fled to Australia so it is reasonable to believe that he would have done research before he left Turkey regarding seeking protection, or sought out assistance through Turkish or Kurdish--language groups or migration agents once he arrived here if he truly feared serious harm.
Conscription
I do not accept that the applicant is wanted by Turkish authorities as a draft evader, nor does he have any residual conscription obligations. I do not believe that the applicant is being truthful regarding his conscription status. I have noted previously that the applicant has submitted a fraudulent letter from the Ministry of Defence stating that he was a draft evader in August 2015 even though his deferment was valid until December 2015 (folio 8).
Country information indicated in February 2015 that 200,000 people applied for an exemption scheme.[2] Other country information[3] indicates that under a 2015 exemption law Turkish nationals over the age of 27 can buy their way out of military service for a fee (approximately AUD 9,000) and that 66,000 people did this.
[2] ‘Turkey Raises $1.5B from Conscription Plan’, Defense News, 15 February 2015
[3] Ibid, p 26
This would indicate that the schemes were well-known, yet the applicant initially said that there were no ways of getting out of military service and then, when presented with country information about the exemptions, he then claimed that it only applied to people working overseas for two years with a valid visa. I also note that the applicant provided evidence that he was earning good money (folio 77) and would have been able to afford the exemption if he was required to pay for it himself.
My finding that he is not required for military service is strengthened by the fact that he has produced no valid documentary evidence that would indicate that the Turkish authorities require him to do military service. Country information[4] indicates that once one’s exemption expires then the person receives a notification that the person is going to be called up. The applicant has not provided any evidence that he has received such a notice after the expiration of his exemption.
[4] Immigration and Refugee Board of Canada, Turkey: Military service, both compulsory and voluntary, 4 June 2014
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Although I have disregarded the applicant’s attendance at Kurdish community functions and [social media] activity for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). I do not accept that the applicant has genuinely conducted any Kurdish political activist activities in Australia, has or would seek to promote Kurdish political activism, or that the applicant will be imputed with being a Kurdish activist through his attendance or [social media] entries.
I also do not accept that the applicant was ever politically active in Kurdish causes in Turkey, that he ever came to the attention of Turkish authorities or was ever detained, interrogated or beaten by them. Nor do I accept that the applicant is required to do military service on return to Turkey. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 2318

14 June 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal