1600932 (Refugee)

[2017] AATA 678

1600932 (Refugee) [2017] AATA 678 (31 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600932

COUNTRY OF REFERENCE:                  Turkey

MEMBER:David Corrigan

DATE:31 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2017 at 11:21am

CATCHWORDS
Refugee – Protection visa – Turkey – Particular social group – Homosexuals – Family rejection – Police attacks – Physical assault – State protection – Internal relocation

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R(1)(b), 499
Migration Regulations 1994

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Turkey, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] January 2016.

3. The applicant appeared before the Tribunal on 2 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

   RELEVANT LAW

4. 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.

   Refugee criterion

5. 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).

6. 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.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    State protection

15. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Relocation

16. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Particular social group

17. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

18. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    Complementary protection criterion

19. 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

22. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The applicant’s claims can be summarised as follows.  He was born in [year] in [his home village in] Erdine, Turkey.  His family moved to Istanbul when he was one year old and that is where he grew up.  He worked in a variety of jobs including on [projects].  He arrived in Australia and [remained] in September 2013.

24. The applicant realised he was homosexual during military service.  He met a man called [Mr A] at an Izmir nightclub during this time and they had a 6-8 month relationship.  He then entered into a relationship with a man called [Mr B] for nearly nine months while at university.  He has not been in any long term relationships since though he has met people over the internet.  He has had physical relationships with men he met in [a location] where there are discos and bars.

25. On one occasion, the applicant got into a public fight with [Ms A], the fiancée of a work colleague after she stopped his colleague from hanging out with him and told people he was gay.  The applicant was taken to a police station along with the fiancée and two other men who had informed the police he way guy.  He was subjected to verbal abuse by the police for being a homosexual and was eventually released the next morning without being physically mistreated though he was poked with a stick.  He later received a letter from the court although he is not sure what actually happened and it is his belief he received a [term] good behaviour bond.

26. About 10-15 days after this incident at the police station, he received threatening phone calls on his mobile phone and was told he would be killed.  He changed his phone numbers as a result.  The applicant’s parents began receiving phone calls saying bad things about the applicant.  His father had a confrontation with him and swore at him and hit him.  His head was injured but he did not to hospital as he did not want stiches in his head.  He packed his bags and left home and did not have anything to do with his family after that.  His friends helped him with accommodation.  He has not been hurt or attacked by anyone else since and he thinks this could be because Istanbul is a big city and his father could not find him.   He did not update his address with the authorities in order to protect himself and prevent people from finding him.  He worked for various employers and tried to get employment in other parts of Turkey but was unsuccessful.  He then started working on [projects] where he felt safe.  When he returned to Istanbul he stayed with friends.  His friends would tell him his family were trying to contact him to know where he is. 

27. The applicant only contacted his [sibling] [who in 2013] told him that relatives had said that his family did not want him to live as a homosexual and they would end his life.  He fears his family will be able to find him and will kill him or engage someone else to do so.

    Country of reference

28. The applicant has claimed to be a citizen of Turkey.  He has submitted documentation (a copy of his passport) that supports this this and I find that he is a national of Turkey.

    General credibility

29. The applicant has given consistent and detailed evidence in his written claims, interview with the delegate and Tribunal hearing and I find that he is a credible witness.  I accept that he was born in Erdine and that not long afterwards he and his family went to live in Istanbul.  I accept that he lived in Istanbul until he went to work on [projects]. 

30. At the hearing, a friend of the applicant gave oral evidence by telephone to the Tribunal.  The applicant said she was a Turkish and Australian citizen.  She stated that she did not know the applicant when he was in Turkey but she had come to know him since he came to Australia and she knew he had issues with his family and he had told her his family would not accept him and she knew that being gay in Turkey was not acceptable.  She stated that the applicant did not speak that much and was a caring, lovely and genuine guy.  I consider the witness’ evidence supports his general credibility.

    Gay claims

31. I accept that the applicant is gay and that he realised he was homosexual during military service.  I accept that he had gay relationships in Turkey.  I accept that he met a man called [Mr A] at an Izmir nightclub during this time and they had a 6-8 month relationship.  I accept that he then entered into a relationship with a man called [Mr B] for nearly nine months while at university.  I accept that he has not been in any long term relationships since though he has met people over the internet.  I accept that he has had physical relationships with men he met in [a location] where there are discos and bars.

32. I accept that on one occasion, the applicant got into a public fight with [Ms A], the fiancée of a colleague after she stopped his colleague from hanging out with him and told people he was gay.  I accept that the applicant was taken to a police station along with the fiancée and two other men who had informed the police he way guy.  I accept that he was subjected to verbal abuse by the police for being a homosexual and was released early the next morning without being physically mistreated though he was poked with a stick.  At the hearing, the applicant stated that he was not charged with any offence and he expressly disavowed that he later received a letter from the court but he said when he was released he was told that if he did anything in the next year he would be fined.  He said he found this out when he later went to get paperwork for employment.  I accept the applicant’s account at the hearing.

33. I accept that about 10-15 days after this incident at the police station, the applicant received threatening phone calls on his mobile phone and was told he would be killed.  I accept that he changed his phone numbers as a result.  I accept that the applicant’s parents began receiving phone calls saying bad things about the applicant.  I accept that his father had a confrontation with him and swore at him and hit him.  I accept that his head was injured but he did not to hospital as he did not want stiches in his head.  I accept that he packed his bags and left home and did not have anything to do with his family after that.  I accept that his friends helped him with accommodation.  I accept that he has not been hurt or attacked by anyone else since and he thinks this could be because Istanbul is a big city and his father could not find him.  

34. I accept that he did not update his address with the authorities and and tried to get employment in other parts of Turkey but was unsuccessful.  I accept that he then started working on [projects] where he felt safe.  I accept that when he returned to Istanbul he stayed with friends.  I accept that his friends would tell him his family were trying to contact him to know where he is.  I accept that the applicant has had contact with his [sibling] and in 2013 [they] told him that relatives had said that his family did not want him to live as a homosexual and they would end his life.  

1. The Australian Department of Foreign Affairs and Trade has made the following comments on homosexuals in Turkey:

   4.107 There is little official discrimination against people on the basis of their sexual orientation or gender identity. Homosexuality is not illegal and sodomy is not a crime. However, Turkish non-discrimination legislation does not explicitly prohibit discrimination on the basis of sexual orientation and gender identity. There is no legislation in relation to hate crimes against lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals. In practice, societal and cultural barriers can preclude LGBTI people from living openly, with the exception of a few enclaves in Istanbul, Ankara, Izmir and other large cities where population numbers mean that it is easier to find a social circle or community. DFAT assesses that the vast majority of Turks have conservative views about sexual orientation and gender.

   4.108 Few support mechanisms for LGBTI individuals exist, especially in rural areas. Some NGOs work in support of LGBTI rights but they are mostly based in the big cities. In the past they have faced difficulties becoming registered organisations but are now able to formally register and operate openly, including with public websites and workshops. However, authorities routinely audit their offices, a practice which many LGBTI organisations consider a form of monitoring. Rights activists have commented that the prominence of LGBTI organisations in the Gezi Park protests led them to believe that the situation for LGBTI people was improving. However, in June 2015 Istanbul’s annual gay pride march, which had taken place for 12 years, was banned by Istanbul’s Governors and stopped by police who broke up the parade with tear gas and water cannons, described by the European Commission as a ‘disproportionate use of force’.

   4.109 LGBTI people reportedly have difficulty securing public sector employment should their sexual orientation or gender identity become known. While gay men can seek exemption from mandatory military service on the basis of their sexual orientation, they have been forced to “prove” their homosexuality through demeaning and invasive tests. The current Government has reportedly objected to references in draft anti-discrimination legislation to protecting ‘gender’ rights, on the basis that this would offer protection to LGBTI people.

   4.110 Many LGBTI people can normally live safely in neighbourhoods in Istanbul, Izmir and other progressive cities, but substantial social stigma against LGBTI people remains, negatively affecting their prospects for employment. DFAT has been told that LGBTI people are at risk of harassment by police or other Government officials. Police harassment and extortion for sexual favours from transsexual persons have been reported to human rights organisations.

   4.111 Credible human rights contacts told DFAT that transsexual men in particular have been subject to violence, ranging from verbal abuse to physical attacks, and murders in a number of instances. One rights group reported 41 deaths of LGBTI people due to hate crimes from 2010-2014. Contacts praised the Turkish police and judicial system for responding effectively to one apparent homophobic attack in Diyarbakir, in the southeast of Turkey (a young gay man was killed by his father and uncle, who have both now been found guilty of murder and sentenced to life imprisonment). However, LGBTI rights groups told DFAT that the police and justice systems did not normally respond this effectively to attacks against LGTBI people.

   4.112 Overall, DFAT assesses that LGBTI individuals in Turkey face a moderate risk of official discrimination and a moderate level of societal discrimination. The level and frequency of discrimination depends on the socio-economic status and, to some extent, the geographic location of those involved. Some middle and upper class, educated and urban Turks are open about their sexuality within their family and community circles. However, many LGBTI individuals continue to hide their identity to avoid harassment. Transgender individuals face a high risk of official and societal violence. [1]

   [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey, 5 September 2016.

2. The United Kingdom Home Office has stated:

   3.1.1 LGBT persons may experience societal discrimination and stigmatization and occasional violence by non-state actors. Most societal violence is directed at transgender persons, particularly transgender sex workers.

   3.1.2 However, in general, LGBT persons are not subjected to any action on the part either of the authorities or society which would amount to persecution within the terms of the Refugee Convention or otherwise inhuman or degrading treatment.

   3.1.3 There have been reports of police interference in the lives of some LGBT persons, and harassment of, and violence towards, LGBT organisations, LGBT sex workers and people attempting to celebrate Pride.

   3.1.4 LGBT people may experience discrimination in accessing health services, education and employment.[2]

   [2] UK Home Office, Country Information and Guidance Turkey: Sexual Orientation and Gender Identity, March 2016.

3. The United States Department of State have commented:

   While the law does not explicitly discriminate against LGBTI individuals, legal references to “offenses against public morality,” “protection of the family,” and “unnatural sexual behavior” sometimes served as a basis for discrimination by employers and abuse by police. LGBTI prostitutes reported police detained them to extract payoffs. LGBTI advocates accused courts and prosecutors of creating an environment of impunity for attacks on transgender persons involved in prostitution.

   …

   During the year LGBTI individuals continued to experience discrimination, intimidation, and violent crimes.

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

   …

   There were active LGBTI organizations in Istanbul, Ankara, Izmir, Adana, Mersin, Gaziantep, Eskisehir, and Diyarbakir, and unofficial groups in smaller cities and on university campuses. Groups reported harassment by police and government authorities. Many university groups in small cities complained that rectors had denied them permission to organize.[3]

   [3] United States Department of State, Country Reports for Human Rights Practices for 2015.

4. In 2011, Amnesty International stated that the LGBTI individuals to whom the group had spoken “consistently stated that they did not seek the assistance of the authorities to offer protection in the case of threats of violence or to report violent offences because they believed that due to their sexual orientation or gender identity the authorities would not assist them”.[4]  According to Amnesty International, “[g]ay, bisexual and transgender Turks face widespread discrimination and homophobia, often suffering beatings by the police which leave them too frightened to report hate crimes”.[5]  In 2008, HRW reported that Turkey should “urgently change law and policy to protect lesbian, gay, bisexual, and transgender (LGBT) people from extensive harassment and brutality on the streets, in homes, and in state-run institutions”. HRW noted that despite a wide body of documented cases of LGBTI individuals being subject to acts of violence and intimidation, in most cases the “response by the authorities is inadequate if not non-existent”.[6]  In a separate report, HRW reported that abuses against gay men are often “abetted and at times perpetrated by the police themselves”.  Gangs reportedly go to cruising areas “looking for chances to inflict violence or robbery, and driven by prejudice against those who are not ‘masculine’ enough”, while police rarely respond adequately, sometimes blaming or further harassing victims.[7]

   [4] Amnesty International 2011, Not an Illness Nor a Crime: Lesbian, Gay, Bisexual and Transgender People in Turkey Demand Equality, Amnesty International website, 21 June, p.34 – Accessed 11 June 2013.

   [5] ‘Amnesty International condemns Turkey over gay rights record’ 2011, Al Arabiya News, source: Reuters, 22 June – Accessed 11 June 2013.

   [6] Human Rights Watch 2008, ‘Turkey: Homophobic Violence Points to Rights Crisis’, Human Rights Watch website, 21 May – Accessed 11 June 2013.

   [7] Human Rights Watch 2008, We Need a Law for Liberation – Gender, Sexuality, and Human Rights in a Changing Turkey, Human Rights Watch website, May, p.5 – Accessed 11 June 2013.

5. On the basis of this above country information I find that the applicant is a member of a particular social group of “Homosexuals in Turkey”. 

6. I accept that the applicant’s family are angry with the applicant on account of his homosexuality and that his relationship with them (other than his [sibling]) is over.  However, I cannot dismiss as remote the chance or risk that his father or any family member will attempt to locate the applicant and seriously harm him given his father’s past physical violence towards him and the family’s ongoing interest in him.  I have taken into account that that the incident with his father occurred a long period of time ago (nine years) and that he hadn’t had any contact with his family (other than his [sibling]) during that period and that he also told the Tribunal that his last contact with his [sibling] was two years ago.  However, I note that the applicant has been in Australia since September 2013 and was previously working on [projects] and that after he left his family home he did not register a new address with the authorities.  I have taken into account that the applicant told the Tribunal that his family had very strong religious beliefs (but not like those in Saudi Arabia).   Whilst I note that his [sibling] now has a relationship with the family after marrying a [partner] against their wishes, I am of the view that this is a different matter to his homosexuality.

7. The applicant stated that he was concerned that his family would be able to find him through the electoral website ( which he said listed the city and suburb of a person and that they could call the local mayor and use bribery and he would give them the details including the street name.  He said he was also concerned that they could use the central hospital system to find him.  I accept that the applicant would be have to register his address with the authorities to avoid a fine and to access government services as per the country information set out on the Departmental file at folio 75.  I note that reports indicate that corruption is widespread in Turkey’s public sector.[8]  In all the circumstances, I find that the chance or risk that the applicant’s father and other family members would seek to locate him and be able to locate him through any of these channels is a real one and not remote.

   [8] GAN Business Anti-Corruption Portal, Turkey Corruption Report, >

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

   State protection

8. I have taken into account that DFAT have stated that Turkey’s judicial system and police force are well-established and benefit from a long tradition of public service and that the police generally provide effective state protection and that they have undertaken training in relation to vulnerable and minority groups and in relation to new laws.[9]  However, country information set out above indicates substantial shortcomings in the investigation and prosecution of crimes against gays in Turkey.  Indeed there are credible reports of the police and government authorities harassing and using occasional violence against gays.  Given this country information I find that the applicant would not be able to access state protection in accordance with the principles laid down in MIMA v Respondents S152/2003.

   Relocation

   [9] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey, 5 September 2016.

9. I have considered whether the applicant to relocate to another part of Turkey where he would not be an appreciable risk of persecution.  However, I consider he faces a real chance of being located and targeted by his family throughout Turkey and the country information set out above, particularly country reports from the US Department of State and Amnesty International indicate the pervasive nature of violence towards LGBT individuals and limited police protection throughout Turkey.  Based on this information I consider that it would not be reasonable to expect the applicant to be able to relocate within Turkey as he would have a well-founded fear of persecution throughout the country.

   Overall assessment

10. Considering the applicant’s individual circumstances and country information on a cumulative basis, I find there is a real chance that he would be persecuted for reason of his membership of a particular social group of homosexuals in Turkey.  His fear of persecution is well-founded.

    Third country protection

11. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

    Conclusions

12. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    David Corrigan
    Member