1517541 (Refugee)

[2018] AATA 2522

1517541 (Refugee) [2018] AATA 2522 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517541

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Rodger Shanahan

DATE:1 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2018 at 10:35am

CATCHWORDS
Refugee – Protection visa – Turkey – Race – Kurd – Religion – Alevi – Political opinion – Pro-Kurdish parties – HADEP political activities – Assault by police – Detention – Voluntary return to Turkey – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 91R(3), 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

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).

2. The applicant who claims to be a citizen of Turkey, applied for the visa on 31 December 2013 and the delegate refused to grant the visa on 11 December 2015.

3. The applicant appeared before the Tribunal on 14 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

   CLAIMS AND EVIDENCE

   Protection Visa Application

4. The applicant claims to be a Kurdish Alevi.  His parents told him to hide his Alevi faith when he was in junior school to avoid discrimination and problems.  He had a problem with a teacher at school who insulted the Alevi faith and treated the applicant harshly when the applicant said he was Alevi.  He dropped out of school because he felt discriminated against there.

5. He later enrolled in open high school and finished it in [year] (having started in [year]).  He sat for a university selection test in 2008 and enrolled in a open-learning vocational high school and started studying [a course].  He finished his first year of school in September [year].  In June 2010 he arrived in Australia on a student visa, finished an English course in December 2011 and then studied a diploma in [subject] from February 2012.

6. In April 2012 police raided his parents-in-law’s house and asked for the applicant.  He wanted to get his family to Australia but their visa was refused.  In September 2012 he had to return to Turkey because his son developed psychological problems.  He returned to Australia after 9 weeks to study but there were problems with his re-enrolment and his student visa was subsequently cancelled.

7. After his problems at high school he became more interested in his Alevi faith and read books about the faith.  [As a teenager] he also became interested in politics but was not involved.  During his military service he was discriminated, insulted and even assaulted for being an Alevi Kurd.

8. After military service in [year] he resumed working and began attending the HADEP office in Gaziantep.  He attended activities organised by HADEP in Gaziantep and police stopped and questioned them after attending activities.  In March 1999 he attended Newroz celebrations, was badly assaulted by police and detained.  He was released the next day after being interrogated, but couldn’t go to work for a week due to the psychological effects.

9. His HADEP activity increased and continued to have problems with the police but they weren’t serious.  After HADEP was banned in 2003 he continued with DEHAP until DTP was established in late 2005.  He had a more significant role with DTP, attended more often and undertook duties on political and social committees.  He worked full-time but carried out duties when asked by his friends.  In 2007 he took part in an election committee and was appointed as an observer/co-ordinator at polling centres.

10. He worked closely with the BDP provincial [office-bearer] during the campaign and on election day.  In early July 2007 the police raided his home, confiscated election materials, detained and interrogated him.  He was accused of working for the PKK and assaulted by the anti-terror unit.  He was released the next day, signed a document he couldn’t see and threatened with more severe punishment if he was detained again.  He continued his political duties despite this.

11. In 2008 he and others were returning from Newroz celebrations when the police stopped them and tried to take their flags off them.  They refused and were hit with batons but they escaped.

12. In 2009 he was again helping DTP during local elections doing door-to-doors and distributing pamphlets, attended party meetings and acting as a polling station observer.  [Several] days after the election the police picked him up off the street and forced him to get in their car.  They told him that they knew his role with DTP at the election and began punching him, saying he had already been warned.  He was dropped off and caught a taxi home but he was obviously bruised.

13. In later months he saw a police car following him.  In early September 2009 a police car stopped and two men came to talk to him and forced him into the car.  They told him that they wanted his help to provide them with information about people in the party but he refused.  They warned him that if he refused he and his family would face serious consequences.  He then asked them to give him some time to think.

14. He talked to his wife about it and she was scared that they would harm their child so he decided to leave the country for a while.  He obtained his passport and applied for a student visa so he could stay away for a long time, hoping that he would be forgotten.  Before he left he was again approached by the police for a response to their request and he said that he would help them.

15. DTP was closed soon after this.  The police called him and then took him in a car for a talk.  He told then that DTP was now closed and he wasn’t a member of BDP.  They suggested that he become a member and they gave him the names of people who had a connection with PKK/KCK.  He said he would apply to join BDP but in May 2010 his visa was granted so he left the country after he placed his wife and child at his parents-in-law’s house.

16. His wife told him that his parent-in-law’s house was raided in April 2012 and asked where the applicant was.  She told the police they were separated and she didn’t know where he was.  The police also asked his sons where he was – [one son] began crying and has since developed psychological problems.  His wife and child applied for student dependent visas around August 2012 but they were refused.  His son’s psychological problems became worse and he believed that his father was in prison.  As a consequence the applicant returned to Turkey in 2012 and returned to Australia in November that year.  During his time in Turkey he stayed at a relative’s house - they didn’t tell anyone he was in Turkey.

17. Soon after his return he contacted [an agency] and asked about what assistance he could get.  He believed that his student visa would continue so he decided to reassess once he finished his study.  He found out that he had a problem with his re-enrolment in early 2013 and he applied for a protection visa so he wouldn’t be sent back to Turkey.

    AAT Hearing

18. The applicant was asked whether he knew everything that was in his protection visa application and knew it to be true and correct and he agreed that he did and that it was.  He was asked about some untranslated documents in his file and he said that one was a card saying that he had been assigned as election monitor for DTP in the 2009 general election.  The applicant then gave the original card to the member to examine.

19. Another document was his previous Turkish ID card (later said to be a drivers licence) but he now had an Australian licence.  He also worked at [a named business] in Australia.  Asked about a prescription that he had included dating from 2012 he said that his son had psychological problems that forced the applicant to return to Turkey.  He said that he also had other documents that he needed time to prepare.  It was put to him that he had been here for years and had plenty of time. 

20. He claimed that he had been asked for documents to prove that he was a member of communities and he claimed he had been active with the Kurdish community in [a named suburb] and the Alevi one on [another suburb].  He had videos of him being active but they were on his laptop.  He was reminded that he was trying to convince the Tribunal that he was owed protection and it was assumed that he would have been preparing his evidence to present to the Tribunal at his hearing.  He said he only learnt about the hearing three days ago so hadn’t had time to prepare everything.   

21. He claimed that if he returned to Turkey it was a chaotic situation there.  Being an Alevi he could be imprisoned by the police without justification.  Claims that the government is helping some Alevi institutions but government departments are trying to destroy this.  He was also Kurdish and he could be imprisoned.  They may also follow and keep track of him.  He had previously been detained and taken away by car but had no documents to show this.

22. Regarding his Alevi claim, he stated that he took part in cem house activities and got into fights because of this.  These fights were in 1997 or 1998.  Asked if there was anything more recent, he claimed that there was tracking by police after this.  He was asked how he knew he was being tracked, he said that an unmarked car came and he was taken inside it – this was around 2009.  This was about his HDP activity, but he was told to concentrate on his Alevi claim at the moment.

23. Since 1997/98 there had been some arguments in meetings he had attended.  It was later understood that this referred to political meetings.  Asked again to concentrate on his Alevi claim, he said that there were thousands of people whose doors had been marked a long time ago.  It was put to him that the Tribunal wanted to know his claims.  Country information indicated that there were over 8 million Alevis in Turkey so the Tribunal wanted to know why he would be singled out. 

24. Country information also indicated that there was a very low risk of violence against Alevis in Turkey and he had claimed that parts of the government were against the Alevi, and he was asked if he had any country information to support this claim.  He had also not provided any country information about violence against Alevis.  He didn’t appear to be making much of a substantive claim about his fear of harm for being Alevi.

25. He claimed that many people accused him of having no religion because he was Alevi – this was a general reaction to denigrate them.  This happened to all of them.  He was asked to provide country information to support this.  He said he would find some and submit it.  He also said that millions of Alevi had left Turkey and they wouldn’t have done so if they wanted to stay, that he hadn’t seen his children for years [since] he had come to Australia.

26. Regarding his Kurdish political activism claim, he claimed that the police followed him because of his Kurdish political activities.  He used to distribute flyers to houses in 2007 and 2009 but had been active prior to this during elections (1997, 2003) when he would distribute pamphlets.  He was asked to tell the Tribunal what years he was involved with what political groups.  He replied that he couldn’t recall what years he was involved. And was asked to describe what groups.

27. He claimed after 1997 friends suggested that they help HADEP but he was never a member.  He helped them until they closed one or two years after he started.  He then said that he remembered nothing about dates or years.  It was put to him that he had been in Australia for years and had a long time to get dates sorted out before he came to the Tribunal.  If he came and claimed he was a Kurdish activist in Turkey but couldn’t remember anything about dates then it may raise questions as to whether he had been active at all.  He claimed he was in such a condition that he may not be able to go to work – with all these stressors he had been unable to think straight.  If he could have an hour he would be much better. 

28. Asked if he had any medical condition, he pointed out a letter that the Tribunal read and it was put to him that it was from 2016, and he was asked if he had continuing treatment to which he replied that he did.  He was asked what condition he had and said that he couldn’’t sleep.  The member said that it would not give him an hour break to come up with information that it was reasonable to expect he would have prepared before he came to the hearing.

29. Asked again about his political activity after beginning with HADEP in 1997, he said that it closed or they changed their name to DTP.  He was not a member of DTP but he did the same stuff such as distributing papers and worked with them during elections and brought the elderly to the voting stations.  Asked if he was on any committees or had any leadership roles he said that he didn’t.  It was put to him that in his statement he said that, with respect to DTP, he was ‘undertaking duties in committees for political and cultural events to be organised by the party’ and that on election day he ‘worked closely with the BDP provincial [office-bearer]’ and that this was pretty significant.

30. He claimed that they were helping the people around him (headed by someone called [name]) who told them what to do.  He worked for DTP for one year before he came to Australia.  He worked for them in 2008.  He worked for DTP, HADEP and was asked if there was anyone else.  He claimed that until 2009 he was involved in all the organisations but couldn’t really express himself and the dates may not check out with what was written.  He asked if he could provide a written list after the hearing – it was put to him that he may be given time however he had had years since he had been in Australia to have this information sorted out.

31. Asked if he had any photographic evidence that he was active in Kurdish political groups in Turkey he said that he did but didn’t know how to find it.  His wife had changed their address and he was going to ask about additional evidence but now couldn’t.  It was put to him that he must know people in DTP/HADEP or the community who would have photos.  He said he would have to ask them but many people moved as things changed. 

32. Asked if he had been active in Kurdish political associations in Australia, he claimed he went to picnics and listened to speakers.  Asked if he had a social media profile in which he advanced Kurdish political causes, he claimed he had a [specified] site and just shared photos.  It was put to him that he claimed to have been very active in Turkey advancing the Kurdish political cause and was asked why he wasn’t active politically in Australia.  He said he was and was again asked if he posted Kurdish political comments or information on his site.  He claimed he didn’t use it this way because he was fearful for his wife and child in Turkey.  He was asked what had happened to them because of his Kurdish political activism in Turkey and he claimed that his being away from home affected them mentally.

33. Asked what happened to him in Turkey because of his activism, he claimed that he had been detained and his house was raided in late 2008 or early 2009.  In 2007 or 2008 he had been taken into a car and this caused him to investigate leaving Turkey.  He was asked to outline his experience with the authorities chronologically.  He claimed that in 2001 or 2002 he had been warned by police not to get involved in Kurdish political activities.  It was given by plain clothes policemen – he was on the way back from work and the policemen came up and warned them verbally.

34. He also remembered being taken away in a car but nothing else.  Three of them were walking and two others moved away and he was bundled into the car.  They said that if he provided information about the internal workings of the party they would leave him alone, but they threatened him if he didn’t do this.

35. It was put to him that he was never a member of DTP and asked why they would have thought he could give them information on DTP.  He claimed that they saw him as being active with DTP.  He had never been assaulted by the security authorities except for the time he was taken in a car and beaten up.  He claimed that it could have been in 2004 on the way back from Newrooz.  He was physically injured with bruises on his back but he didn’t report this to anyone.  He was asked if he took photos and gave them to DTP to publicise and he claimed he never thought of this as he didn’t even have a phone at the time.

36. He returned to Turkey in 2012 but nothing happened to him because they stayed as visitors in different houses with friends.  He wasn’t detained at the airport.  He was asked why he couldn’t relocate given that simply by not staying at his house he was able to avoid security.  He could go to a bigger city.  There was no arrest warrant for him and he entered and left through the airport without problems.  He claimed that he only went back because of his sick child and if he went back he would become involved politically and the problems would re-start.  He was asked why he would be politically active given he had been in Australia for years and not undertaken any political activity, nor was he active on social media.

37. He claimed that he could provide information about his activities in Australia.  Asked whether he had siblings in Turkey, he claimed he had [siblings].  [Details of siblings’ occupations deleted.]  It was put to him that they appeared to have normal lives despite also being Kurdish Alevis.  He claimed they weren’t involved as he was and his [siblings] were married young.  Everyone had different political views.  Asked if his wife and children were at risk of harm, he claimed he didn’t think so until his son was hit.  They had moved to an address owned by [a relative].

38. Asked why they hadn’t tried to leave Turkey, he claimed they wanted to be with him.  They were still married and his wife was on the phone to him every day.  He had no problems getting a passport in 2009, and it had been extended since then.  It was put to him that he had a passport issued in 2012 and he claimed that he thought it was an extension.  It had been renewed in Australia – there were no problems in doing the extension.

39. He was advised about s 424AA and it was put to him that he had been asked twice whether he was a member of the DTP and he had said on both occasions that he wasn’t. Yet in his DIBP interview he was asked the same question and said that he was. He was also asked by DIBP to confirm that he was a formal member and he again said that he was a member. He also said that he was a DTP member in 2008 and went to every meeting and that he didn’t have a membership card because only some, not all members had cards.

40. The inconsistency could call into question his credibility as a witness and raised concerns that he was fabricating his claim to have been active politically in Turkey.  In response he claimed that he meant he was a helper and didn’t believe that he said he was a registered member.  He was given the opportunity to provide an alternative translation from the interview if he believed the interpreter at the interview was wrong.

41. He was also told about s 91R(3) and it was put to him that there were concerns that his interaction with the Kurdish community in Australia may have been done to give himself a profile within the community, particularly given the vagueness of his claims regarding political activity in Turkey. He claimed that he was a friend of the person from the executive committee here in Australia, who knew about the applicant’s activism in Turkey. He was advised that whatever he provided would be taken into account.

1. The Tribunal needed to give weight to evidence and letters for example couldn’t be proven truthful very easily so would be unlikely to carry much weight.  The card he showed to the Tribunal as well, could have been easily produced anywhere so was also unlikely to carry much weight.  Social media videos and photographs and the like were much harder to fabricate. It was confirmed that he wished to provide additional information and he confirmed that he did – he was given additional time post-hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The applicant arrived in Australia on a student visa on 31 May 2010, and applied for a protection visa on 31 December 2013.  I have sighted copies of his passport and accept that Turkey is the applicant’s country of nationality. 

3. The applicant is a married [age] year-old man.  He claimed that if he returned to Turkey because of his Alevi identity he would be imprisoned by the police or denigrated by the public.  He also claimed that he would be harmed by the security forces because of his Kurdish political activities.  To the extent that it is relevant I have taken into account the DFAT Country Report – Turkey.

4. 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 document shown to me by the applicant at hearing that was a prescription but note that it was dated 2016.  I lend it little weight as evidence that he may have any medical reason that could account for the inconsistencies in his claims.  He claimed he had had other treatment for an unspecified complaint but offered no other medical documentation at or post-hearing to support this claim. 

5. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below, including vagueness, lack of supporting evidence and inconsistency I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claim in order to be granted a protection visa.

   Alevi Identity

6. Although he failed to bring along a senior member of the [local] Alevi community to attest to his membership of the faith community as he was requested by letter to do prior to the hearing, I am willing to accept that the applicant is an Alevi.  I do not, however accept that there is a real chance that the applicant will face serious harm on return to Turkey simply for being Alevi.

7. Country information[1] indicates that Alevis face low levels of societal discrimination, are at a low risk of violence and are able to freely access health care and education.  I am satisfied that, given his lack of political or other profile, the ease with which he has been able to obtain travel documents and to enter, re-enter and leave the country the likelihood of him being discriminated against or being targeted for violence to be so low as to constitute a remote possibility. 

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

8. The applicant’s siblings in Turkey all appear to be living normal [lives].  I note that he claims this was because his [siblings] weren’t politically active as he was.  I do not accept, however, that the applicant was himself ever politically active and as a consequence it follows that the applicant would himself be able to live a normal life on return to Turkey in the same way that his siblings have.

9. His claims regarding persecution based on his faith were also vague, and when asked to outline his Alevi faith claim he regularly sought to talk about his political claim. Nor did he provide any country information to support a claim of violence against Alevis in Turkey despite being requested and given time to do so post-hearing.   I do not accept that the applicant got into fights because he was an observant Alevi, that he had a hard time and had to drop out of school because of his Alevi identity, that the police would follow and track or imprison him or that a section of the government would target Alevis as this relies on his oral testimony which, as I show below, lacks credibility. 

   Fraudulently Claiming to be a Kurdish Political Activist

10. I do not accept that the applicant was, is or would be active in Kurdish political groups or would be perceived so.  To begin with, he was asked by letter to bring a senior member of the Kurdish community in Australia to answer questions about the applicant’s community activities yet failed to do so. 

11. His claims to have been a Kurdish political activist in Turkey rest nearly entirely on his oral claim.  He has provided no photographic or video evidence that would place him with any Kurdish political groups in Turkey or at any Kurdish political activities there.  I do not accept that this was because his he had some at home in Turkey but his wife had moved house and he could no longer ask her. 

12. He later said that they had moved to an address owned by [a relative], and that his wife spoke to the applicant every day.  It should have been very easy to ask his wife during one of her daily calls to forward such evidence.  It was also open to him to seek such evidence from HADEP/DTP members whom he knew in Turkey and who may have photographic records of him.  I have taken into account a card (folio 4) that he claims was issued to him as a DTP election monitor, but lend it little weight.   The card has virtually no security features and could easily have been produced by him or given to him by anyone.

13. I lend more weight to the inconsistency in his information.  During the hearing he claimed or agreed on two occasions that he was never a member of DTP.  Yet in his DIBP interview when asked the same question on two occasions he stated that he was a member of DTP.  He also claimed that he went to every DTP meeting and that he undertook duties on committees.  I do not accept that he meant that he was a helper or that he had been mistranslated – he was given an opportunity to provide an alternate translation yet failed to do.

14. Because he was never a political activist or member of DTP, it follows that he was never followed by police vehicles, never taken into an unmarked vehicle by Turkish security forces and asked to provide information about the internal workings of the party.  I do not accept that the security authorities saw him as being active within the party; given his self-claimed limited role in the party it lacks credibility that the security agencies would have then thought that he was of sufficient importance to have access to information regarding the inner workings of the party.

15. He was vague about his non-DTP Kurdish political activism.  He variously stated that he couldn’t recall what years he was involved, and that he began with HADEP in 1997 but they closed one or two years after he started (country information[2] however, indicates that they were active from 1994-2003, and he claimed in his initial application that HADEP was banned in 2003).  It also follows that he was never detained nor was his parents-in-law’s house ever raided by the police looking for the applicant’s whereabouts.

    [2] DFAT Thematic Report – Kurds in Turkey dated 2 June 2014, p 6.

16. The lack of interest in him by Turkish authorities and his lack of fear of serious harm in returning to Turkey is evidenced by the fact that he did not apply for protection for three and a half years after first arriving in Australia, and the fact that he voluntarily returned to Turkey in 2012 for nine weeks.  I do not accept his claim that he didn’t apply for protection because he believed that his student visa would continue. His student visa was cancelled in July, five months before he applied for protection.  Regardless of this, the student visa would never be permanent so his delay in applying for protection even if he had a student visa remains problematic.   

17. In addition, he was able to enter and exit the country without a problem and live in his home town for several weeks, also without a problem.  I do not accept that he had to return because of his child’s psychological problems or that he avoided detection by staying at different houses. 

18. The only medical evidence provided (folio 88) regarding his son is a note from a family health centre in August 2012 prescribing five days’ rest for his son for ‘depressive behaviour disorders’.  This doesn’t appear on the face of it to be a serious psychological condition that would warrant a nine-week stay in a country in which he allegedly feared serious harm, and there is no evidence of any specialist follow-up, let alone treatment for a chronic condition.  His claim to have been staying at different houses relies entirely on the applicant’s oral testimony which I have found lacks credibility.

    Kurdish Identity

19. 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[3] indicates that there is a moderate level of official discrimination and of societal discrimination but that this varies across Turkey.  I note that the applicant was employed from 1987-2000, and then combined work and study.  He received a passport in 2009 which has since been renewed, and was also able to apply for an overseas student visa. 

    [3] DFAT Country Information Report – Turkey, 5 November 2016

20. I am satisfied that, given his lack of political or other profile, the ease with which he has been able to obtain travel documents and to enter, re-enter and leave the country the likelihood of him being discriminated against socially or officially to be so low as to constitute a remote possibility.

21. For someone who claimed to have been such an active member of Kurdish political groups in Turkey, he has produced no evidence to which I can lend any weight that he has displayed any interest in becoming involved in Kurdish political activism in Australia.  He claimed that he had videos of his activism on his laptop but hadn’t brought them, nor did he provide any videos post-hearing.  Although he claimed that he went to picnics and listened to speakers, even if I were to accept that he did, these are anonymous social activities and inconsistent with the degree of Kurdish activism he claimed to have been part of in Turkey.  Neither his travel, employment history in Turkey nor his actions in applying for protection in Australia are indicative of someone who has experienced or fears serious harm in Turkey based on their ethnic identity as a Kurd.

    Other Issues

22. Because these claims rely solely on his oral testimony which I have found lacks credibility, I do not accept that he and others were stopped by police and hit with batons after a Newrooz celebration, or that he was stopped and verbally warned by police not to become involved in Kurdish politics.

23. I have taken into account a letter from Dr Ozcan attesting to the applicant’s character (folio 89) but lend it little weight as he has apparently accepted his need to be protected by the Australian government, whereas I have found these claims to have been fabricated.

24. I have also taken into account some photos and a note (folios 35 to 51) provided post-hearing but also lend them little weight.  The note was written by the applicant and makes little sense due to his poor command of English.  The photos appear to be of the applicant and friends/acquaintances in social circumstances, along with some photos of what may (or may not) be an Alevi gathering in some type of hall/centre (although the applicant doesn’t appear to be in any of these).  No context or description of any of the photos is given.

25. 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 Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

26. Because I do not accept that the applicant was or would be targeted because of his Alevi faith, was ever or would ever be involved in any Kurdish political activities, was ever detained, interrogated or beaten, was ever approached by police to provide information about Kurdish political activists, or would be targeted simply for being a Kurd, 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.

27. 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 Turkey, 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

28. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

29. 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).

30. 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

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. 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.

    2. 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).

    3.        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.

    4. 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’).

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