1516738 (Refugee)

[2019] AATA 1058

1516738 (Refugee) [2019] AATA 1058 (2 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516738

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Paul Millar

DATE:2 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 January 2019 at 5:58pm

CATCHWORDS
REFUGEE – protection visa – Turkey – previous protection visa applications – complementary protection grounds – imputed political opinion – association with Dev Sol group – discrimination – Alevi Kurd – failed asylum seeker – absent for 18 years – credibility – inconsistent evidence – unable to recall key events – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Turkey, applied for the visa on 26 March 2014 and the delegate refused to grant the visa on 26 November 2015.[1]  The applicant appeared before the Tribunal by videoconference on 15 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence by videoconference from the applicant’s daughter who lives in Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.

   [1] The Tribunal's finding on citizenship is based on copies of pages from the Turkish passport of the applicant at folios 59-60 of the Department file.

   RELEVANT LAW

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

3. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

4. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  The applicant arrived in Australia in November 2000 as the holder of a [temporary] visa.[2] In December 2000 he applied for protection and his application was refused by the Department. This decision was affirmed by the former Refugee Review Tribunal in June 2003.[3]  Proceedings for review of that decision were dismissed in the Federal Court in November 2003 and in the High Court in March 2006. The applicant then, over the ensuing years, made requests for Ministerial Intervention which were all declined. 

   [2] This chronology of the applicant's migration history is taken from the decision of the delegate, a copy of which was lodged with the applicant’s review application.

   [3] See RRT Reference VO1/13277 20 June 2003.

8. In late 2007 the applicant departed from Australia and travelled to [another country] where he was refused entry. For that reason, he returned to Australia and, in December 2007, applied for [another visa] which was refused by the Department, a decision affirmed by the former Migration Review Tribunal. The applicant made his final request for Ministerial Intervention in April 2012, a request declined by the Minister in February 2014.  In March 2014 he made a further application for a protection visa, an application accepted by the Department on the basis of the decision of the Federal Court in SZGIZ v Minister for Immigration and Citizenship.[4] 

   [4] [2013] FCAFC 71 (3 July 2013).

9. On this basis, the task of the Tribunal is to determine whether the applicant meets the complementary protection criterion.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that Turkish authorities will harm him because, in essence, his brother belonged to Dev Sol, a pro-Kurdish group that was opposed to the government.[5] The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   Omission of claim related to Dev Sol from early evidence

   [5] The applicant’s evidence to the Department and the Tribunal, with respect to this particular application for protection, comprises the contents of the protection visa application forms; a statutory declaration made by the applicant on 28 August 2015; the applicant’s evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened and the applicant’s evidence at the Tribunal hearing.  In his declaration made on 28 August 2015, the applicant says that he also relies on evidence he gave in support of his first protection visa application and, for that reason, the Tribunal had access to Department [file].  As to what this evidence comprises, the applicant specifically refers to his written statement dated 18 December 2000 and his evidence at the hearing before the Refugee Review Tribunal.  The applicant also refers to, in this respect, evidence given at his ‘immigration interviews’ but the Tribunal records that the applicant was not interviewed by a delegate in relation to his first protection visa application.

10. To the Tribunal, the applicant said that his brother was a member of Dev Sol for which he attended meetings, protests or marches and also wrote articles for a magazine published by that group. Because of these activities his brother was harmed and eventually killed by Turkish authorities. In contrast, in his declaration made on 18 December 2000 (‘the first declaration’), the applicant said that his brother was murdered by police. As to why the police would murder him, the applicant said that his brother wrote in a ‘leftist-kurdish newspaper’. In her report dated [October] 2002 (‘the counsellor’s report’), a counsellor records the applicant as stating that because he had been writing and publishing articles related to Kurdish resistance, his brother was arrested and eventually killed. In this earlier evidence, there is no mention of the applicant’s brother belonging to Dev Sol and undertaking any political activities beyond writing and publishing articles. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal.

11. In a statutory declaration made on 12 September 2018, the applicant, in effect, repeated the evidence he gave to the Tribunal about his brother’s political involvement with Dev Sol.  He referred to documents he submitted to the Department about that.  He submitted that when he first came to Australia he gave as much evidence as he could about what happened to his brother in Turkey. He said that, however, he could not speak English and did not know if interpreters specified the name Dev Sol and translated all of the applicant’s evidence about his brother’s activities.  If the applicant did say, at these earlier stages, that his brother belonged to Dev Sol and, beyond writing articles for the group, also took part in other activities such as attending meetings, protests and marches, as he told the Tribunal, the Tribunal can see no plausible reason why this would not have been mentioned in these earlier sources.  The Tribunal is not persuaded that the omission of these important claims from those earlier sources was due to the interpretation process.

    Evidence about how the applicant discovered his brother’s involvement in political activities

12. To the Tribunal, the applicant said that his brother came to live with him at his home.  He said that his brother would often go out at night and not say where he was going.  This concerned the applicant and he spoke to one of his brother’s friends who told him that his brother was in Dev Sol and undertaking activities for that group.  After being given this news, the applicant went into his brother’s room in the applicant’s home and discovered materials written by his brother and which the applicant understood to be related to Dev Sol.  In contrast, in the counsellor’s report, the applicant is recorded as stating that the first he knew of his brother’s involvement in political activities was when the police came to the applicant’s home and searched the room in which his brother was staying where they found materials related to Kurdish resistance which his brother had been publishing.  The applicant is recorded as telling the counsellor that his brother always kept his room in the applicant’s home private, the applicant had not forced entry into the room and so therefore he was ignorant of his brother’s activities. 

13. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal. In his statutory declaration of 12 September 2018 the applicant said that the account he gave the Tribunal was correct and a different account was recorded by the counsellor because she may have only summarised what he told her and forgot to include the applicant’s evidence about speaking to his brother’s friend and, by that means, finding out about his brother’s involvement with Dev Sol. The Tribunal rejects that response because it is clear that the applicant gave an account to the counsellor about how he found out about his brother’s involvement and it is clear that this account is strikingly and self-evidently inconsistent from the one he gave the Tribunal. This inconsistency is not due to or based on the counsellor summarising what the applicant told the counsellor about this issue.

    Evidence about the death of the applicant’s brother

14. To the Tribunal, the applicant said that the last time he saw his brother alive was when police took him from their work place.  He said that two days later his brother’s dead body was located.  He was then made to go to the police station and report regularly and he said this all took place approximately one year before he left Turkey in 1993.  The Tribunal understood the applicant’s evidence to be therefore that his brother died in 1992.  In the first declaration the applicant also states that in 1992 his brother was taken by police from the workplace, never returned and was later found dead.  In the counsellor’s report, the applicant is again recorded as stating that his brother died in 1992. 

15. In contrast to this evidence, at his interview with the delegate, the applicant said that in approximately February 1990 he lost track of his brother and three months after that he learned that his brother’s dead body had been located.  This was broadly consistent with the documents the applicant submitted to the Department with respect to this current protection visa application, those documents being a ‘burial permit’ and what is said to be an extract from a newspaper report.[6] According to the former document, the applicant’s brother died on [date] July 1990 and, according to the latter document, his brother’s dead body was located in May 1990. 

    [6] See folios 100 - 102, 139 – 140 of the Department file.

16. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal. In his statutory declaration made on 12 September 2018, the applicant said that he had been through a lot in his life; he often answered questions without thinking first; he cannot remember dates and in the past he felt pressured to come up with dates when asked. He thought his brother died in 1992 but he acknowledged that according to documents he submitted about that his brother died in 1990. The Tribunal has carefully considered these submissions from the applicant but finds his evidence about when his brother died to be inconsistent. The Tribunal could be willing to overlook inconsistency in giving precise dates for his brother’s death, but, considers the applicant can be reasonably expected to, at the least, remember the year this event occurred given its significance in the applicant’s own life in Turkey.

    Evidence about harm suffered by the applicant from police in Turkey

17. When questioned by the Tribunal about the harm he suffered from police in Turkey, the applicant said that he was never arrested by the police.  His evidence was that police came to his home on two occasions, questioning him and his brother together and searching his brother’s room on the second occasion.  He recalled the police taking his brother away from the workplace, the brother’s body being found soon after and the applicant then being required to report to the police every two or three days.  On those occasions he would be held for a few hours and was punched and kicked when he refused to sign documents put before him.  He told the Tribunal that he was never held overnight by the police.  

18. In contrast to this evidence, in the first declaration, while the applicant referred to his brother being murdered by police and how that caused the applicant to fear for his safety, he made no claim that he himself was ever arrested, detained or maltreated by the police in Turkey.  In contrast again, in the counsellor’s report, the applicant is recorded as stating that as a result of the police discovering his brother’s activities, the applicant’s name was put onto a blacklist and he himself was arrested, interrogated and tortured. In this respect, the applicant is recorded as stating that he was in prison in Turkey for three days and, when questioned, was given electric shocks. He is recorded as stating that, while being held in prison, he witnessed police torturing a young girl in a nearby cell and that haunted him.  In addition, to the Department, the applicant submitted documents purportedly issued by Turkish authorities indicating that he was arrested and detained for three days in 1988 and 1989.[7]

    [7] See folios 91 - 96 of the Department file.

19. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal. In his statutory declaration made on 12 September 2018, the applicant said that he does not know why he omitted to say at the Tribunal hearing that he had been arrested in Turkey. He thought that possibly he was not sure or had become confused by the question. The Tribunal rejects those responses. If the applicant had truly been arrested, detained overnight and maltreated as he claimed, the Tribunal can reasonably expect the applicant to give that evidence consistently when afforded the opportunity to say what difficulties he had with the police in Turkey. The examples given above clearly demonstrate that the applicant has failed to do this and he has not provided an adequate explanation.

    Evidence about harm suffered by the applicant from police in Northern Cyprus

20. To the Tribunal, when questioned as to what harm he suffered from police in Northern Cyprus, the applicant referred to police coming to his home, approximately one year after he arrived there, and saying that they knew his name was on a police blacklist in Turkey due to his brother’s involvement in Dev Sol.  They told him that he had to participate in a pro Turkish Cypriot protest at the border with Greek Cyprus.  The applicant attended one of these protests but refused to attend any others causing the police to make the applicant report to them once each week.  The applicant recalled an occasion when he believes that the police tried to run over him in their vehicle causing an [injury].  He recalled another occasion on which he was detained after attending a protest organised by Kurds in Northern Cyprus.  On this occasion he was detained for five or six days and kicked and punched.  From this detention and maltreatment the applicant sustained an injury to his ear.  This was the only occasion on which he was detained beyond a few hours or a day.

21. In contrast to this evidence, in the counsellor’s report, the applicant is recorded as stating that he lived peacefully in Northern Cyprus until 1995 when some Kurdish visitors told the police they were going to his home.  He is recorded as stating that this alerted police to his past record and they came to his home stating that his name was on a blacklist, that he had done bad things in Turkey and then asking him why Kurds were visiting him.  The applicant is recorded as stating that the police then detained him, questioned him about his brother and he was given electric shocks.  The applicant is also recorded as stating that in 1999 police detained him for ten days during which time he was again given electric shocks and he was asked to give the details of people who had been staying with him.  In his evidence to the Refugee Review Tribunal the applicant mentioned being taken to a police station in 1994 and being beaten after a ‘Greek editor’ for whom the applicant had been writing articles had been killed and his office raided through which the police discovered the applicant’s name.  To the Refugee Review Tribunal, the applicant said that he had written numerous articles about human rights abuses experienced by Kurds and they were published in a Greek newspaper and a Turkish newspaper although not under his name. 

1. To this Tribunal, the applicant made no claim to have been given electric shocks when detained by police in Northern Cyprus. In addition, he made no mention of being arrested and detained in 1994, 1995 and 1999 as he had claimed in his earlier evidence. Further, to the Tribunal, the applicant said that he never wrote articles of any kind. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal. In his statutory declaration of 12 September 2018, the applicant said that he was harmed Turkish authorities in Northern Cyprus but could not remember dates. He had been pressured in the past to give dates for this issue. Sometimes, when questioned he was not mindful of his responses and simply gave an answer to appease whoever was questioning him. He said that he never wrote articles for a Greek or Turkish newspaper and could not say why he gave that evidence to the Refugee Review Tribunal.

2. The applicant’s evidence about the harm he suffered from the police in Northern Cyprus is irreconcilable and strikingly inconsistent.  Again, the applicant has failed to provide any adequate explanation for this. The Tribunal would not expect the applicant to give precise dates of the occasions on which he was arrested, maltreated or questioned by police.  However the Tribunal can reasonably expect the applicant to give a broadly consistent account as to on how many occasions this actually occurred and the reasons for that.  The applicant has failed to do so and he has not given an adequate explanation for that.

   Evidence about departure from [Airport 1] in 2000

3. To the Tribunal, the applicant said that he departed from Northern Cyprus in 2000 and travelled through [Airport 1] to board a flight to Australia.  He narrated an account of police at the airport taking him to a room, telling him to take off his clothes and keeping him there.  He recalled one officer saying to the other that the applicant was a doubtful person.  He described putting his clothes back on, returning to a room full of people and then simply running away from the officials onto the plane.  In contrast to this evidence, at his interview with the delegate, the applicant was asked about what happened when he travelled through [Airport 1] on this occasion.  The delegate asked the applicant whether he was questioned on departing from Turkey and he said ‘by chance, I suppose No’.  The delegate put to the applicant that he was saying that there were no ‘issues’ for him leaving that airport to come to Australia.  In response, the applicant said that was correct. The delegate then put to the applicant that in earlier evidence he claimed that he was questioned at the airport and when asked if that was true, the applicant said that he did not remember.

4. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal. In his statutory declaration made on 18 September 2018, the applicant said that he stood by his evidence on this issue in his statutory declaration made on 28 August 2015. In that declaration, the applicant said that he was nervous at his interview with the delegate. He said that after the interview he spoke about the matter with his lawyer and then advanced the account of this incident that he gave to the Tribunal. If the applicant was relating a truthful account of this incident, even if he was nervous at his interview with the delegate, he would still have related the account of events he claims took place on this occasion at [Airport 1]. If those events truly occurred, it is inconceivable that the applicant would not relate them to the delegate when given ample opportunity to do that.

   Cumulative concerns over certain aspects of the applicant’s account of events from 1993 to 2000   

5. To the Tribunal, the applicant said that he left Turkey in 1993 having obtained a passport for the purpose of leaving the country as soon as possible. This was because he was frightened that if he remained in Turkey he would experience the same harm that his brother suffered. He was afraid that Turkish police would kill him.  It was clear from the applicant’s evidence to the Tribunal to that point in the hearing that he was of adverse interest to Turkish police.  He was being made to regularly report to them and was under suspicion arising from his brother, who had been living at his home, undertaking activities for Dev Sol.  This was also confirmed by the various documents the applicant produced to the Department issued by Turkish authorities indicating that he had twice been arrested and detained by them. 

6. This was also confirmed by his evidence to the Tribunal that approximately a year after he started living in Northern Cyprus police told him that his name was on a blacklist.  In view of these matters, the Tribunal was concerned that the applicant was actually able to obtain a Turkish passport. It seemed highly improbable to the Tribunal that in his circumstances at that time, he would be able to obtain one.  When this was put to him, the applicant said that he obtained a passport through an ‘officer’ he knew and he did not have to pay money for that.  That an official in the Turkish government would allow him to obtain a passport seemed highly improbable to the Tribunal in his claimed circumstances.

7. It also concerned the Tribunal that the applicant wanted to flee from Turkey to avoid being killed by Turkish police but would choose to seek sanctuary in Turkish Northern Cyprus where he would have well-known that in view of his adverse record in Turkey, it was possible that officials in Northern Cyprus may also take an adverse interest in him.  When the Tribunal put this to the applicant, he said that he had tried to go to other countries but was not able to. When asked what efforts he made in that respect, the applicant said that it could have been any country he could enter illegally and he mentioned [other countries].  His response did not alleviate the Tribunal’s concern.

8. According to the applicant’s evidence to the Tribunal, it was approximately after one year that the police in Northern Cyprus indicated to the applicant that they held adverse interest in him yet he remained in that territory for approximately seven years.  It seemed highly improbable to the Tribunal that, if the applicant had adverse relations with police in that territory from that early stage, he would remain for so long in Northern Cyprus having fled from Turkish police to save his life.  When the Tribunal put this to the applicant, he said that he could not go anywhere else. When asked what effort he made to go to another place, the applicant said that he asked people but no one could help him.  In the counsellor’s report, the applicant is recorded as stating that, in this period, he made attempts to obtain visas to travel to other countries but was unsuccessful.  The Tribunal finds all of those claims unconvincing for someone in his claimed circumstances.

9. The Tribunal was also concerned about the applicant’s account of being able to travel out of Turkey through [Airport 1] when, at the same time, he was of adverse interest to Turkish police.  The applicant’s explanation for this was the account narrated above about being apprehended at the airport, searched and then somehow being able to run away from officials onto his plane to Australia. The Tribunal accepts that the applicant gave a broadly similar account about this to the Refugee Review Tribunal and also in the counsellor’s report.  However, the Tribunal finds that account to be fanciful and does not accept that if he was subjected to such scrutiny that he would be taken to another room in the airport to be searched, he would then just be able to run out of the airport and board his flight.

10. Accordingly, the applicant claims to have been of adverse interest to Turkish authorities such that he thought that if he remained in Turkey he would be killed by them.  Even so, he managed to obtain a passport from Turkish authorities.  He sought sanctuary in a territory, in effect, claimed by Turkey.  Not long after arriving there, the authorities made known to the applicant that they held an adverse interest in him yet he remained there for seven years.  He was able to travel from Turkey to Australia through [Airport 1] offering a fanciful account of how he evaded officials there.  The cumulative effect of those concerns considered together leads the Tribunal to consider that the applicant has not been truthful with respect to his circumstances both in Turkey and Northern Cyprus.

    Evidence about the treatment of the applicant’s family in Northern Cyprus once he came to Australia

11. To the Tribunal, when asked if the police questioned his wife or children after he came to Australia, the applicant said that he did not get in touch with his family for a long time.  When asked if, once he contacted them, they told him if the police had caused trouble to them, the applicant said that the police came and asked them how he left.  When asked if the police did anything else, the applicant said ‘No’.  The Tribunal asked the applicant whether, after he came to Australia, the police ever detained his wife or children and he said ‘No’. 

12. In contrast to this evidence, in the counsellor’s report, the applicant is recorded as stating that after coming to Australia, initially, he contacted his family through telephone, but, after this, one of his daughters was taken for questioning about his whereabouts.  This reminded the applicant of the maltreatment of a female he witnessed on the occasion he was held and detained in prison by Turkish police for three days before leaving Turkey in 1993 (as he had told the counsellor).  The applicant is recorded as stating that he was afraid his daughter could suffer the same fate and from that time he did not have any contact with his family.  In a report dated [July] 2001, the same counsellor records the applicant as stating that, in relation to this issue, through this telephone contact with his family, Turkish authorities discovered he was in Australia and ‘targeted his [daughter]’, his wife being [ill] with [a medical condition].  The applicant is recorded as stating that his daughter was taken from her workplace by police, kept overnight, and released the following day, events that distressed the applicant as he blamed himself for his daughter’s incarceration.

13. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal. In his statutory declaration of 12 September 2018, the applicant again tried to explain this discrepancy through an inability to concentrate, an inability to remember events that occurred some time ago, becoming confused when questioned, not being mindful of what he was saying and being pressured and not having time to think about his evidence. The Tribunal has carefully considered the submissions from the applicant but they in no way can excuse the inconceivable inconsistency in the applicant’s evidence about a very significant matter in his life, namely, whether or not after he came to Australia, Turkish authorities detained one of his children. If they did, then he would have told the Tribunal that when given ample opportunity to do so at the Tribunal hearing.

    The applicant’s inaction with respect to important evidence

14. The Tribunal was concerned that the applicant, in early 2014, produced documents issued by Turkish authorities many years earlier when he was still in Turkey.  The Tribunal asked the applicant why these documents were not produced in support of his first protection visa application made in 2001.  In response, the applicant said that, at that time, he had no way of getting those documents from anybody and he was afraid that if he tried to do that Turkish authorities would know where he was.  When asked why, therefore, he did take steps to obtain these documents in 2014, he said that he wanted to have proof that he had been in trouble in Turkey. He therefore contacted a lawyer in Turkey to have the lawyer obtain evidence that the police wanted to arrest him. He does not know how the lawyer otherwise obtained these documents.

15. The Tribunal is not persuaded by those responses and cannot see why the applicant would initially choose not to make enquiries of someone who could obtain documents from Turkish authorities and why he should only do that so many years later in 2014.  The Tribunal’s concerns extended to documents submitted just prior to the Tribunal hearing from the Turkish consulate purportedly relating to a court case against the applicant in Turkey. 

16. These documents comprised, firstly, a notice dated [July] 2014 addressed to the applicant by a Turkish consular office in Australia and stating that the applicant must attend at that office within 30 days to collect a document following which service of the document will be deemed to have occurred.[8]  According to this notice, the document is a ‘lawsuit petition’ issued by a court in Turkey.  The second document is from the same office and dated [April] 2018.[9]  In this document, again, the applicant was requested to attend that office and collect a document referred to as a ‘reasoned judgement’ issued by the court referred to in the earlier document. The applicant said that he was so frightened by these documents he did not approach the office about them. When asked why these documents frightened him, he said that he was frightened that the people at the office might harm him because of past events in Turkey.

    [8] See folios 41, 44 of the Tribunal file.

    [9] See folios 42-43 of the Tribunal file.

17. The Tribunal put to the applicant that the documents appeared to relate to a court case in Turkey and the applicant said that such a case could have something to do with his adverse record with Turkish authorities.  The Tribunal asked the applicant why a court case against him would arise in 2014 when he had not lived in Turkey since 1993. In response, the applicant said that it could be because of his past adverse record when he lived in Turkey.  One of those documents was issued in July 2014 but the applicant made no mention of it in his evidence to the Department.   That is so notwithstanding his views that these documents related to a court case linked to his past record with Turkish authorities, a matter that forms the basis of his protection claims.  The applicant was interviewed by the delegate in July 2015 and he could easily have said that he had received this document from the consulate and that it indicated danger for him in Turkey.  When this was put to him, the applicant said that he did not tell the delegate about this as he did not know what the document related to.

18. When asked why therefore he was now relying on these documents, the applicant said that when the second document came from the consular office this year he began to be afraid. The Tribunal rejects that response because the Tribunal understood the applicant’s evidence to be that he was also frightened when he received the earlier document which was why he did not approach the consulate about that.  His failure to mention this document to the delegate reflected poorly on his credibility.  In addition, the applicant told the Tribunal that he had not asked the lawyer in Turkey to make enquiries about these particular documents.  When asked why he would not have the lawyer make enquiries when this same person had been able to obtain the documents mentioned above purportedly issued by Turkish authorities, the applicant said that he was too frightened.

19. The Tribunal found the applicant’s evidence about these particular documents to be most unconvincing, in particular, his failure to mention the earlier document in his evidence to the Department and his inaction in having a lawyer, who had previously helped him, make enquiries about these particular documents.  His explanations for his inaction being, essentially, fear of what the documents could mean for him, are not accepted.  In his statutory declaration of 12 September 2018 the applicant said that in June 2018 he contacted a lawyer to enquire into these documents (presumably after the conclusion of the Tribunal hearing). The applicant said that the lawyer would not be able to enquire into the documents because they related to state security matters.  This further evidence does not overcome the Tribunal’s concerns about these documents. The applicant has not explained why he did not earlier contact a lawyer in Turkey about these documents and he has not explained his failure to mention the earlier document in his evidence to the Department.

20. The applicant’s untruthfulness was further reflected in another important claim that emerged for the first time at the Tribunal hearing and one the Tribunal considers the applicant could have raised before then.  In this respect, to the Tribunal, the applicant said that one of his daughters had studied [in] Northern Cyprus and returned to Turkey to find work.  He said that she did not remain in Turkey because she had trouble with Turkish authorities because of her surname.  The applicant said that she began employment with a particular body but within a short time Turkish police discovered her identity and writings and this caused her mental problems.  She did not tell the applicant if she had been arrested but she returned to Northern Cyprus.  When asked if this police interest in her was because of him, the applicant said that he was guessing, but, the Tribunal understood his reference to his daughter having problems because of her surname to imply that these problems were due to her association with him and his deceased brother.

21. The applicant told the Tribunal that he learned of these events a few months before the Tribunal hearing held on 15 June 2018.  In that period of time the applicant’s representative has provided submissions and documents she said that the applicant had given her.  However, at no stage prior to the hearing, was any mention made of the applicant’s daughter returning to Turkey and being of adverse interest to Turkish police.  If those events truly occurred the Tribunal could reasonably expect that the applicant would tell his representative about them and that the Tribunal would have been informed about them before the hearing. 

22. By letter dated 5 September 2018, pursuant to s.424A of the Act, this discrepancy was put to the applicant by the Tribunal. In his statutory declaration of 12 September 2018, the applicant repeated the evidence he gave the Tribunal about difficulties his daughter had when she went to live in Turkey. He thought these difficulties were because of him but he was not sure. He was tired towards the end of ‘the interview’ and was not thinking clearly. The applicant has not explained why he made no mention of these important events until the Tribunal hearing when he had been aware of them for a few months prior to the hearing. The Tribunal finds that the late mention of these claims further reflected a lack of credibility in the applicant’s evidence.

    Conclusions on credibility

23. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth.  In reaching this finding, the Tribunal took into consideration evidence given by the applicant’s daughter to the effect that when the family lived in Northern Cyprus she recalled police coming to her mother asking questions but she did not listen to what was said.  She also claimed that, so she understood, the applicant’s brother was killed by Turkish police.  Further, she said that her parents spoke about the applicant’s difficulties in Kurdish, a language she could not speak.  While her evidence purports to corroborate the applicant’s claims, it does not overcome the substantial concerns the Tribunal holds about the applicant’s account and the Tribunal does not give weight to it.

1. The Tribunal has also taken into consideration the various documents submitted by the applicant to the Department relating to the death of his brother and his dealings with Turkish authorities.[10]  The Tribunal also took into consideration documents submitted to the Tribunal purportedly issued by a Turkish consular office in Australia and, according to which, a court case involving the applicant has taken place over the period from July 2014 to April 2018.[11]  In her submissions of 18 September 2018, the representative referred to country information to the effect that document fraud was not widely prevalent in Turkey and so the documents submitted by the applicant should be regarded as genuine.

   [10] See folios 91 – 108, 139 – 140 of the Department file.

   [11] See folios 41 – 44 of the Tribunal file.

2. While these documents also purport to corroborate the applicant’s claims and even if document fraud is not widely prevalent in Turkey, these documents can, in no way, overcome the concerns the Tribunal holds about the applicant’s credibility.  Those concerns pervade all aspects of the grounds of his protection claims and the account of events on which those claims are based.  Those concerns significantly discredit him as a witness.  Accordingly, the Tribunal does not give weight to these documents.  With respect to the documents purportedly issued by the consular office, both the representative, in submissions of 13 June and 18 September 2018, and the applicant, claimed that the court proceedings referred to in those documents were related to adverse interest held in the applicant because of his association with his brother. 

3. The documents themselves merely refer to a court case in Turkey and nothing more.  The applicant claims that a lawyer in Turkey advised him that the documents and court proceedings would be related to state security matters.  However, the applicant is not a witness of truth and the Tribunal does not believe this claim.  In her submissions of 13 June 2018 the applicant’s representative also submitted that had the applicant approached the consular office to find out more about these documents, that could be considered as a willingness to avail himself of the protection of Turkish authorities and undermine his protection claims.  The Tribunal has considered these submissions but the Tribunal is not persuaded to overlook the numerous and substantial concerns it holds about the applicant’s credibility.  These documents purport to corroborate the false claims that the applicant makes about his brother’s political activities and adverse interest held by Turkish authorities in the applicant.  The Tribunal does not give weight to them.

4. In reaching its finding on the applicant’s credibility, the Tribunal also took into consideration medical evidence submitted on behalf of the applicant.[12]  According to this medical evidence the applicant has [injuries].  According to this evidence the applicant has anxiety and depression and he has, in the past, presented with symptoms of post traumatic stress disorder.  The authors of these reports assert that the applicant’s injuries and his mental state are caused by harm he encountered from Turkish authorities.  Some of the health professionals state that because of his mental health the applicant gives answers he thinks people want to hear and he has trouble with concentration and memory.

   [12] See folios 89 – 90; 109 – 121; 129 – 130; 132 – 133 of the Department file and folio 59 of the Tribunal file.

5. In submissions of 31 August 2015, 14 May 2018 and 18 September 2018, the representative refers to these claims and urged the Tribunal to consider the difficulty for the applicant giving evidence by videolink, that the relevant events occurred many years ago and the core of his account about having a brother involved in political activities and both of them suffering harm as a consequence, was consistent.  The Tribunal has considered the submissions and the medical evidence but is satisfied that the applicant was given a meaningful opportunity to participate in the Tribunal hearing.  To the Tribunal’s observation, the applicant could comprehend the Tribunal’s questions and respond to them.

6. The assessments of the various health professionals as to the applicant’s mental health are all based on claims the applicant has self-reported to them about his experiences in Turkey and Northern Cyprus.  These various health professionals have accepted those claims at face value and are clearly not in a position to assess their credibility.  The Tribunal has assessed the credibility of the applicant and, for the reasons given above, finds that he is not a witness of truth. The Tribunal therefore accepts the assessment of these health professionals about the applicant’s mental state but there is no credible evidence as to its cause. The applicant may have injuries [but] there is no credible evidence as to how he sustained those injuries.

7. The Tribunal has also taken into consideration the submission that relevant events, on which the applicant’s protection claims are based, occurred a number of years ago.  The Tribunal can make allowance for this but it is the crucial aspects of those claims about which the applicant has failed to give credible evidence.  The Tribunal rejects the submission that a core of the applicant’s evidence has been consistent.  The Tribunal finds, for the reasons given above, that no aspect of the applicant’s evidence with respect to his protection claims has been consistent or credible.

8. Because of its concerns about the applicant’s credibility and because he is not a witness of truth, the Tribunal disbelieves the applicant’s claims that he had a brother who was involved in political activities and for which he suffered harm. There is no credible evidence about the applicant’s own political opinions and no credible evidence that he undertook political activities of any kind in Turkey or in Northern Cyprus.  The Tribunal disbelieves the applicant’s claims that he himself became of adverse interest to Turkish authorities and suffered harm in Turkey and in Northern Cyprus. There is no credible evidence before the Tribunal as to why the applicant left Turkey and went to live in Northern Cyprus and why he left Northern Cyprus and came to Australia. 

9. The Tribunal disbelieves the applicant’s claims that after he left northern Cyprus authorities there harmed members of his family and his claims that one of his daughters had difficulties when she went to live in Turkey.  There is no credible evidence that Turkish authorities have, or ever have had, an adverse interest in the applicant and seek to apprehend and harm him.  The Tribunal disbelieves claims that there is an outstanding judgement against the applicant in Turkey.  There is no credible evidence before the Tribunal that anyone in Turkey or Northern Cyprus seeks to harm the applicant. There is no credible evidence before the Tribunal as to why the applicant does not wish to return to Turkey or Northern Cyprus.

10. The Tribunal accepts as credible no more than that the applicant is an Alevi Kurd who left Turkey in the early 1990s.  The Tribunal accepts as credible that the applicant went to live in Northern Cyprus where he remained until 2000 when he came to Australia.  The Tribunal now turns to an assessment of the risk of the applicant suffering significant harm because he is an Alevi Kurd who has been absent from Turkey for 18 years and will return there as someone who sought asylum in Australia. 

11. In terms of available country information about the risk of Alevi Kurds suffering significant harm, the Tribunal has taken into consideration DFAT, Country Information Report Turkey dated 5 September 2016.  According to this report, Alevi’s can practice their religion, obtain employment in the private and public sector, face only low levels of societal discrimination and face no discrimination in terms of access to healthcare or education.[13]  Further, DFAT states:

    “Overall, on the basis that Alevi’s are generally free to practise their faith, express their identity, find employment and achieve political representation, DFAT assesses that Alevi’s are at a low risk of violence on the basis of their religion.”[14]

    Although country information suggests that there are Alevi’s who choose not to reveal their identity, the applicant himself has not advanced any credible evidence that he concealed his (Kurdish Alevi) identity in Turkey nor that he would choose to do so on return there. Overall, the country information suggests to the Tribunal that the risk of the applicant suffering significant harm in Turkey because he is Alevi is remote. 

    [13] See 4.44-4.46:

    “4.44 Like other minority groups, Alevis are able to secure public sector employment, including in the military, but many report they do not feel comfortable revealing their religion. Securing promotions can be difficult if they are open about their Alevi identity. There are few, if any, Alevi police chiefs in Turkey. There are no Alevi Governors in any of the 81 provinces of Turkey.

    4.45 Alevis in Turkey enjoy many religious freedoms: they are generally free to gather in Cemevis to undertake religious ceremonies and in many spheres of life can freely express their identity without fear of discrimination. Increasingly, municipal governments in Alevi-majority areas are providing financial support for Alevi cultural institutions. DFAT is not aware of any discrimination against Alevis in terms of access to health care or education, other than the requirement to undertake Islamic religious classes.

    4.46 Alevis are often accepted as an integral part of Turkish society. The leader of the CHP is an Alevi and up to 40 Alevis are believed to be represented in Parliament in 2016 (including 30 in the CHP; five in the BDP and two in the AKP). Alevis are able to obtain employment in the private sector or run their own businesses, and to celebrate their annual religious holidays, although these are not recognised as official holidays. The three main Alevi Foundations are able to operate freely and advocate on behalf of the community. However, despite the size of the Alevi community, Alevi’s keep a low profile within society and many Alevi’s still prefer to hide their identity, especially from Sunni Muslims. Overall, DFAT assesses that Alevi’s face low levels of societal discrimination on the basis of religion.”

    In its most recent report on Turkey, DFAT expresses a broadly similar position.  In this respect, see DFAT, Country Information Report Turkey, 9 October 2018, at 3.20-3.25.  A copy of this report was provided to the applicant by letter dated 6 December 2018.

    [14] See DFAT Country Information Report Turkey, 4.48.  DFAT expresses a similar position in its most recent report on Turkey, see DFAT, Country Information Report Turkey, 9 October 2018, at 3.24-3.25.

12. The Tribunal put this to the applicant after discussing the country information with him.  In response, the applicant said that in addition to being Alevi he was also Kurdish and Kurds had suffered injustice in Turkey.  That response does not alter the view of the Tribunal that the risk of the applicant suffering significant harm because he is Alevi is remote.

13. With respect to the risk of the applicant suffering significant harm on the basis of being Kurdish, DFAT states that there is a moderate level of official discrimination against Kurds even though they can access government health and education services and, generally, secure employment.[15]  In terms of societal discrimination, DFAT states:

    “Societal discrimination against Kurds is partly influenced by the changing nature of Government-PKK peace talks. Given the resumption of hostilities, societal attitudes towards Kurds are currently less positive. Some non-Kurds believe that all Kurds are associated with the PKK, despite the fact that many Kurds are supporters of the current Government and want the conflict to end. On this basis, DFAT assesses that there is, at present, a moderate level of societal discrimination against Kurds. However, this varies across Turkey depending on proximity to the conflict or the number of Kurds present in a particular location.”[16]

    [15] See DFAT Country Information Report Turkey, 4.17 and 4.18:

    “4.17   …….   While Kurds’ ability to express their Kurdish identity, use the Kurdish language, and achieve political representation have been maintained, they remain at risk of harassment through the legal system and of discrimination in public sector employment. In addition, the ongoing violence in the southeast disproportionately affects Kurds, given they are the majority in the region, and has resulted in a significant loss of civilian life. The enforcement of temporary security zones and curfews by the military has inhibited access to health services, education, work and other aspects of everyday life. Overall, DFAT assesses that these conditions represent a moderate level of official discrimination against Kurds.

    4.18 In many areas of Turkey, Kurds do not face societal discrimination. Kurds can access government health and education services—this normally includes free public schooling and, for the poor, access to free public health care. Kurds can normally secure private sector employment and public sector employment …...

    Similar positions are taken on these issues in DFAT Country Information Report Turkey, 9 October 2018 at 3.2 – 3.10.

    [16] See DFAT Country Information Report Turkey, at 4.20.  See also DFAT Country Information Report Turkey, 9 October 2018 at 3.10 in which a similar position is expressed.

14. More recent country information indicates those involved with Kurdish groups in Turkey are at risk of arrest and detention including human rights defenders, journalists and those publicly voicing dissenting views on Kurdish issues.[17]  The applicant does not belong to a Kurdish political group in Turkey and has not engaged in political or public activities in Turkey (or Northern Cyprus) in which he has expressed dissent against the government.  The Tribunal infers from this country information that the risk of the applicant suffering significant harm because he is Kurdish (even considered cumulatively with the fact that he is an Alevi) is remote.

    [17] See Country of Origin Information Services Section (COISS), Department of Home Affairs, Turkey Treatment of “Gulenists” and Kurdish Groups, 25 May 2018, 20-21:

    “Kurds and members of Kurdish opposition-groups have been arrested since the attempted coup in July 2016. Turkish human rights monitoring group, iHop reports that 31 per cent of all people arrested in government operations under the state of emergency in place since October 2016, were allegedly associated with Kurdish or leftist groups.

    According to the HDP, between July 2015 and July 2017, 10,639 HDP executives, members and supporters were detained with 2,983 arrested, including deputies, district chairs and members. Since the attempted coup, 6,380 were detained and 1,570 were arrested. By contrast, the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression reports that approximately 2,000 HDP members have been detained since the attempted coup. In March 2017, the DBP reported that since July 2015, 3,547 of its party officials had been placed in pretrial detention.

    In November 2016, the two co-leaders of the HDP, Selahattin Demirtas and Feign Yuksekdag, were arrested along with 13 other HDP members of parliament (MPs) on terrorism-related charges. In May 2016, the co-leader of the DBP, Kamuran Yuksek, was arrested on terrorism charges. He was convicted and sentenced to nine years’ imprisonment in absentia in March 2017. In April 2018, more than 40 HDP members were arrested at an election meeting in Istanbul. During 2017, HDP members were also prosecuted for ‘insulting the president’ and several HDP MPs were expelled from parliament for failing to attend parliament and for alleged links with the PKK.

    More broadly, those who voice dissenting views on Kurdish issues, whether they be Kurdish or not themselves, have been arrested. For example, many human rights defenders, journalists and people who posted comments on social media opposing the government’s recent military offensive in Afrin, Syria were arrested and labelled by President Erdogan as ‘lovers of terrorism.”

    See also DFAT Country Information Report Turkey, 9 October 2018, where a similar position is expressed at 3.7, 3.43 – 3.48, 3.49 – 3.73.

15. The Tribunal put this to the applicant after discussing the country information with him. In response, the applicant claimed that the government had a list of people that it watched and would get rid of.  For the reasons given above, the Tribunal finds that there is no credible evidence that the Turkish government holds any adverse interest in the applicant.  The Tribunal does not accept that the applicant is on any such list held by Turkish authorities.  Accordingly the risk of the applicant suffering significant harm because he is an Alevi Kurd is remote.

16. The applicant had also claimed to fear harm for being the victim of a terrorist attack in Turkey.  Country information indicates that over recent years a number of terrorist attacks have occurred in Turkey with Kurdish opposition forces and Islamic state claiming responsibility.[18]  Away from the south east of Turkey where the government has engaged in conflict with Kurdish opposition forces, these attacks take place in public areas and also target military or police.[19]  Because such attacks have taken place, the Tribunal accepts that any person living in Turkey risks being a victim. However, the number of attacks, specifically, those in which members of the public have suffered harm, has to be considered in the context of the population of Turkey.  On that basis, the Tribunal considers that the risk of the applicant suffering significant harm as a victim of a terrorist attack in Turkey is remote.

    [18] DFAT, Country Information Report Turkey dated 5 September 2016 at 2.14, 3.41- 3.42.

    [19] DFAT, Country Information Report Turkey dated 5 September 2016 at 2.14, 3.41- 3.42.  See also DFAT Country Information Report Turkey, 9 October 2018, where a similar position is expressed at 2.51 and 2.52:

    Turkey has experienced a number of serious terrorist attacks in recent years that have claimed hundreds of lives, including bomb attacks and shootings in Istanbul, Ankara, and the south-east. Attacks have targeted tourist sites, locations associated with the security forces (including military barracks and police vehicles), government and judicial offices, political parties, businesses, places of worship, and tourist sites. Several groups have claimed responsibility for the attacks, including Kurdish rebel groups such as the PKK and the Kurdistan Freedom Falcons (TAK) and external organisations such as Islamic State. Security authorities frequently report that they have succeeded in preventing other attacks across the nation.

    Since the collapse of a ceasefire between the government and PKK in July 2015, security forces have conducted operations in a number of provinces in south-eastern Turkey. These operations have involved thousands of troops in infantry, artillery, and armoured land divisions, as well as the air force. The International Crisis Group (ICG) reported that, as of the end of September 2018, conflict since the end of the ceasefire had caused over 4,114 deaths of PKK militants, state security force members and non-combatants. Clashes continued throughout late 2017 and early 2018.

17. The Tribunal put this to the applicant after discussing the country information with him. In response, the applicant then said that because he had been in Australia a number of years he was at risk in Turkey.  According to DFAT, there are many Turkish people who live away from Turkey and regularly return there.[20] DFAT states that there is no ‘significant stigma against returnees who have failed to gain asylum elsewhere’.[21]  Failed asylum seekers who have a criminal record or who are of adverse interest to the government will likely come to the attention of authorities on return.[22] For the reasons given above, the Tribunal does not believe the applicant has any adverse record in Turkey and does not believe that he is of adverse interest to Turkish authorities. Accordingly, the Tribunal infers from the country information that the risk of the applicant suffering significant harm in Turkey because he applied for protection in Australia and because he has been away from Turkey for 18 years is remote.

    [20] DFAT, Country Information Report Turkey dated 5 September 2016 at 6.28.  See also DFAT Country Information Report Turkey, 9 October 2018, where a similar position is expressed at 5.25.

    [21] DFAT, Country Information Report Turkey dated 5 September 2016 at 6.28.  See also DFAT Country Information Report Turkey, 9 October 2018, where a similar position is expressed at 5.25.

    [22] DFAT, Country Information Report Turkey dated 5 September 2016 at 6.28.  See also DFAT Country Information Report Turkey, 9 October 2018, where a similar position is expressed at 5.28.

1. The Tribunal put this to the applicant after discussing the country information with him. In response, the applicant simply maintained that the Turkish government would know he has applied for protection and on arrival they will harm him. The government would allege that the applicant had been to other countries and spoke adversely about the government.  In his statutory declaration of 12 September 2018, the applicant repeats these claims and also states that in view of his absence and being deported from Australia, Turkish authorities will think that he has been involved in pro-Kurdish activities.[23] The Tribunal rejects those claims as they are not supported by country information. The Tribunal does not believe that the applicant has an adverse record with Turkish authorities and so the risk of him suffering significant harm on return to Turkey is remote.

   [23] The applicant makes a similar claim in his statutory declaration of 28 August 2015.

2. In written submissions, the representative also contends that the applicant is at risk because he is an Alevi Kurd who has been away from Turkey for a number of years and will return there as a failed asylum seeker.  For the reasons given above, the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm on return to Turkey on any of those grounds (or considered cumulatively).  In submissions of 31 August 2015, the representative advanced a great deal of country information but it all precedes the country information relied on in this decision which the Tribunal prefers because it is more recent and, therefore, provides the most up-to-date position on the issues in question.

3. In submissions of 18 September 2018 the representative provides country information about human rights practices in Turkey generally.  This country information refers to official discrimination against Kurds and those Kurds living away from the south-east of Turkey where they constitute the majority of the population, being afraid to actually disclose that they are Kurds.  However, at the same time, this country information provides that there are millions of Kurds who are not politically active who live in Turkey without any difficulty. This information refers to conflict taking place between the government and the Kurdish opposition groups in the south-east of Turkey but the applicant lived in a different part of the country.

4. The country information mentions the crackdown by the government following the attempted coup in 2016 and, generally, the arrest and maltreatment of Kurds suspected of opposing the government. However it is clear from this country information that this suspicion and consequent harm does not arise solely from Kurdish ethnicity.  Rather, this country information makes clear that it is those Kurds who are politically active in some way, in either opposing the government or promoting Kurdish identity, who are at risk.  There is no credible evidence before the Tribunal that this applicant has ever been politically active in Turkey and Northern Cyprus and the Tribunal has no credible evidence about his political opinions.

   Accordingly, the Tribunal remains of the few that the risk of the applicant suffering significant harm in Turkey because he is an Alevi Kurd who will return there after seeking asylum in Australia and having been away for 18 years, is remote.

5. In submissions 18 September 2018 the representative also claimed that DFAT ‘sanitises’ its assessments of human rights practices in the countries on which it reports.  The Tribunal rejects that submission and regards the reports produced by DFAT as comprehensive and balanced.  DFAT, in both reports relied on in this decision, is willing to discuss and disclose those instances where human rights harm is carried out, by whom it is carried out and on whom.

6. In submissions of 28 May 2018, the representative submitted that the Tribunal should consider the ‘humanitarian’ aspects of the applicant’s case.  She submitted that the applicant has lived in Australia for 18 years and his daughter who lives in Australia and her children would face hardship without him due to the emotional support he provides to them.  To the Tribunal, the applicant’s daughter made similar claims.  To the Tribunal, the applicant also submitted a marriage certificate indicating that he married an Australian citizen in November 2015 though no further evidence or submissions were advanced about this.

7. The Tribunal can appreciate that the applicant’s return to Turkey and separating from family in Australia could be distressing for him and family.  However, that is a consequence of the applicant’s inability to be able to remain in Australia on a legal basis.  That distress does not amount to a real risk of the applicant suffering significant harm in Turkey.  The Tribunal is also aware that the applicant will return to Turkey after having been away from the country for a number of years.  However, for the reasons given above, the risk of the applicant suffering significant harm in those circumstances is remote.  His family here, be it his daughter, grandchildren or current spouse, will be free to visit him in Turkey.

8. The most recent medical evidence submitted about the applicant indicates that he suffers from anxiety and depression, but, for the reasons given above, there is no credible evidence as to the cause of this.  He also has injuries [but] no claim was made (and no such claim arises on the evidence before the Tribunal) that any of those ailments or his mental state will lead to a real risk of the applicant suffering significant harm as that term is defined in the Act.  The applicant will have to re-establish his life in Turkey at his age and after a lengthy absence.  However, the Tribunal has explored all bases on which it was asserted that the applicant will suffer significant harm and, for the reasons given above, finds that risk is remote.

9. Following the conclusion of the Tribunal hearing, the Tribunal provided to the applicant the most recent assessment of Turkey by DFAT. [24]  In response, by letter dated 21 December 2018, the representative made submissions on behalf of the applicant.  In these submissions the representative repeats claims dealt with above that there is a real risk that the applicant will suffer significant harm on the basis of being Alevi Kurd who has sought asylum in Australia.  The Tribunal has dealt with those claims above and for the reasons given above finds the risk of the applicant suffering serious harm on these grounds is remote.

   [24] DFAT Country Information Report Turkey 9 October 2018.

10. The representative submitted that the applicant had a past criminal record as well as a judgement against him entered in absentia.  For the reasons given above, the Tribunal finds the applicant is not a witness of truth and therefore disbelieves his claims about having a past criminal record in Turkey.  While he claims there is a judgement against him in Turkey, for the reasons given above, the Tribunal disbelieves that claim and finds that there is no credible evidence that Turkish authorities hold adverse interest in this applicant. 

11. In these submissions, the representative advances a new ground on which the applicant claims protection which is that he is a pro-Kurdish political activist.  The representative refers to various parts of the DFAT assessment that relate to how the Turkish government treats political activists including pro-Kurdish political activists.  In this respect, the representative submits that since 2001 the applicant has been involved with a Kurdish community centre in the city in Australia where he lives.  For this centre he has undertaken pro-Kurdish political activities which include attending protests some of which have been held outside the Turkish Consulate.  He has attended activities at the community centre where pro-Kurdish conferences have taken place.  He has made financial donations to a pro-Kurdish radio station associated with the community centre.  In support of these claims, the representative enclosed a letter from the Kurdish community centre in which these claims were made as well as photographs of the applicant undertaking these pro-Kurdish activities.

12. It was submitted that these activities demonstrated that the applicant is a pro-Kurdish political activist who had firmly held beliefs about the rights of his people and his opposition to the way they are treated by the Turkish government.  It was submitted that he will therefore suffer significant harm return to Turkey in view of the country information about how such people are treated in Turkey.  It was further submitted that Turkish authorities monitor the activities of Turkish nationals where they reside abroad and they would be aware of these activities undertaken by the applicant and will harm him on return because of them.  She submitted that the Turkish Consulate could be expected to photograph and make video footage of any protests held outside its premises at least for security purposes if not to also monitor those involved. The representative provided some reports about certain Kurdish activists being arrested on return to Turkey and one report about Kurds being spied on in Germany.  In its supporting letter, the Kurdish community centre also asserts that ‘several Kurdish activists’ have been imprisoned on return to Turkey.

13. The representative submitted that neither she nor the applicant had previously mentioned his activities in Australia and that was because, essentially, the applicant did not understand their significance.  She submitted that it was only after the contents of the most recent assessment from DFAT were explained to him and he was specifically asked if he had undertaken activities in Australia that the applicant mentioned them.  The representative submitted that the fact that the applicant had not hitherto raised a claim about undertaking political activities in Australia until this late stage should not be held against him.

14. The Tribunal has carefully considered the representative’s submissions and supporting evidence enclosed with them.  The Tribunal finds that the risk of the applicant suffering significant harm in the light of these activities in Australia is remote.  The Tribunal finds that the applicant is not a witness of truth.  The Tribunal has no credible evidence that the applicant engaged in pro-Kurdish or political activities in Turkey or Northern Cyprus.  Accordingly, while the applicant appears to have been involved in such activities in Australia there is no credible evidence before the Tribunal as to why he has done this.  Accordingly, the Tribunal does not believe that this applicant is a political activist as the representative claims who will or who will want to undertake such activities in Turkey.

15. The Tribunal has nevertheless assessed the risk of the applicant suffering significant harm because of the activities undertaken here but finds that risk remote.  It is highly likely that how Turkish nationals are treated on return to Turkey because of activities undertaken abroad depends on the particular circumstances of the nationals concerned.  Those harmed may have been of interest to Turkish authorities for reasons other than or in addition to their activities abroad.  The information provided by the representative and even the assertions made by the Kurdish community centre relate to ‘activists’ or ‘leaders’.  No assertion is made in the evidence before the Tribunal that the applicant himself has undertaken activities here as a leader of any kind or activist of prominence.  In addition, although it is claimed the Turkish consulate would be aware of those who participated in protests outside its office, there is no credible evidence before the Tribunal that Turkish authorities hold any adverse interest in the applicant on any ground including on the basis of activities he has undertaken in Australia. 

16. For the reason given above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Turkey, there is a real risk that he will suffer significant harm.  While the Tribunal has not been called on to determine whether the applicant meets the refugee criterion, for the sake of completeness, the Tribunal states that for the same reasons that there is not a real risk that the applicant will suffer significant harm in Turkey, there is not a real chance that he will suffer serious harm there and he does not hold a well-founded fear of persecution based on any convention ground.

    CONCLUSIONS  

17. 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)(aa).

18. 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

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

    Paul Millar
    Member