1602770 (Refugee)

[2018] AATA 5233

1602770 (Refugee) [2018] AATA 5233 (6 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602770

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Jane Marquard

DATE:6 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first-named applicant and second-named applicant satisfy s.36(2)(a) of the Migration Act; and

(ii)that the third-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second-named applicant.

Statement made on 06 November 2018 at 11:39am

CATCHWORDS
REFUGEE – Protection visa – Turkey – first named applicant – particular social group – women in turkey – fears harm from father – victim of physical and psychological violence – second named applicant – fears harm from Turkish authorities – attends Gulenist school – fear of military service – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499


CASES
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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

OVERVIEW

1. The first-named applicant is a woman from Denizli, Merkez, in the west of Turkey. The second-named applicant is her husband, also from Denizli, and the third-named applicant is their child, born in [year] in Australia.

2. The second-named applicant arrived in Australia on February 2008 as the holder of an [temporary visa] which ceased on 6 May 2009. The first-named applicant arrived in Australia [in] January 2009 as the holder of [temporary visa].  The first and second-named applicants were married in Australia [in] February 2009. They both became unlawful in 2010.

3. The first-named applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 31 October 2013, with her husband and child as dependants.

4. A delegate of the Department of Immigration (the Department) refused to grant the visas on 25 February 2016. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

5. The first-named applicant claims that she fears harm from her father, who is a violent man who opposes her marriage to the second-named applicant. The second-named applicant also claims that he fears harm from the Turkish authorities due to his connections to a Gulenist school in [City 1] where he has been playing soccer and attending lectures.

6. The Tribunal must determine whether the applicants meet the refugee criteria or complementary protection criteria. A summary of the relevant law is set out in Attachment A.

7. After consideration of the evidence summarised below, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the first and second-named applicants satisfy s.36(2)(a) of the Migration Act. A summary of the claims, evidence, findings and reasons are set out below.

   CLAIMS AND EVIDENCE

   Evidence before the Department and Tribunal

8. The first-named applicant provided evidence to the Department in an application, supporting documents and at an interview. The applicants also provided written submissions to the Tribunal, and appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicants were represented in relation to the review by their registered migration agent.

9. A summary of the evidence provided to the Department and Tribunal is as follows:

   ·     The first-named applicant is a Sunni Muslim and an ethnic Turk and was born in Denizli in west Turkey. She has one sister.

   ·     She came to Australia to join her husband who had arrived a year earlier. In Turkey they had conducted their relationship secretly and the purpose of coming to Australia was to escape harm from her father who had discovered the relationship.

   ·     In Turkey, she lived with her father, mother and sister. Her father worked in a [factory]. ‘Ever since she knew herself’ her father inflicted violence on her, her mother and her sister. They never received any love from him. He was an alcoholic, ‘drinking all the time’. Her father retired at around [age] years old. After that he was home, and became a burden to her mother and the daughters. His drinking became worse and he would not let her mother leave the house for social visits. He told her he had had people monitoring her when he was out, and she would be punished if she left. He also checked telephone calls. He fought with her mother and with her. He threw them out of the house sometimes at midnight. Neighbours would care for them. She feels that he is psychologically unwell. At certain times it was serious, and police would need to be called. Her father would come home drunk and aggressive and start a fight about ‘simple things that meant nothing’. Once his sister was coughing, and he said to her ‘are you still alive, aren’t you dead yet?’ She said that there was both mental cruelty and physical violence. Very often she had bruises on her body. She did not receive love from her father, ‘even for one day’. The physical violence would occur four to five times a week. Her younger sister grew up very disturbed in this atmosphere, wetting the bed until she was a teenager and waking from nightmares, calling for her father not to hit her.

   ·     Her grandparents also lived in the same city. She does not know if they are still alive, as her father did not allow their family to see their grandparents. He did not allow her mother outside the house much. They also did not have family visits with extended family, who were intimidated by her father, but she saw them at religious festivals and from time to time. Her father did not spend any time with his siblings or her mother’s siblings. When she ran away from home her father enlisted his family to help search for her. Asked why they would join in searching for her if they did not see her parents on a regular basis, she said that she is not sure, but maybe to support her parents. He had problems with most of the extended family and his own mother is fearful of him.

   ·     Her father was not interested in religion, but she and her mother are Muslims, and her mother was devout. Her father never went to the mosque, even on the religious holidays.  When they were young, her mother read the Quran. Her father would swear at God. They did fast at Ramadan. Her father had a large group of friends and connections, but she only knew two of them. Her mother hardly went out and had very few friends.

   ·     When she was around [age] or [age] one night her father arrived home drunk at about 2 am and began to beat her mother very badly.  When the applicant tried to intervene he beat her as well. Her body and face were covered in bruises. Her father is ‘solidly built’. After he beat them, he kicked them out into a winter night. They were injured and crying and taken in by neighbours.

   ·     When the applicant finished high school, she went to university for one year, but then because she came to Australia she did not finish her course. Her father did not support her to go to university but her mother assisted her. She did well at school and got a scholarship so the family did not have to pay.

   ·     She was asked if she or her mother ever went to hospital after they were beaten. She said that her mother’s ribs were broken on one occasion. Her mother went to hospital, even though she was under threat from her father, and told doctors that she had fallen down the stairs. Asked if her teachers or people in the community ever asked her why she had bruises, she said that she covered the bruises on her face with foundation. Her husband later saw the bruises on her body and was furious. She had a photograph of her mother after she was burnt by water from a pot. The pot of water was on the table and her father threw it on her mother, and she suffered burns. The applicant no longer has the photograph as she did not bring this telephone to Australia.

   ·     The police were called on a number of occasions by neighbours, who lived in close proximity in apartments, and could hear the violence. Her father would throw things around and break things. The police came to their apartment three to four times. They would have a look around and then say that it was a ‘family matter’ and that they could not do anything. She does not know if the police made official reports. The neighbours were scared of her father too. Once her father had a knife and broke windows, but after the police interrogated him, they let him go. Her father was never charged with domestic violence offences.

   ·     She was asked if she ever told friends, parents, teachers or doctors about what was happening. She said that she did tell her friends. She was asked if anyone ever suggested to her or her mother that they move out or get a restraining order. She said that once when he was out, she, her mother and her sister went to her maternal grandfather’s house. But her father arrived with a knife and threatened to kill them and they were all ‘so afraid’ and went back. Her grandfather was afraid too, and the grandmother was a stepmother and not very supportive.

   ·     Her sister is now working at a [workplace] as [an occupation], and she ‘suffers psychologically’. She hates her father and they are ‘almost hoping he will die’. Asked if her sister has considered moving out, she said that she is afraid as he will find her sooner or later. He is still inflicting violence on her and her mother. She said: ‘It is difficult to describe him, it is very unique’ and ‘you just have to live ‘it’. If anyone insulted him, he took it to heart. He always wanted sons but only had daughters. She never felt loved by him. She and her sister were treated like ‘nuisance house-pets’ or possessions.

   ·     Her mother attempted suicide twice. The applicant once stopped her from drinking a bottle of [chemical]. On the second occasion her mother turned the gas on in the kitchen and the applicant found her. Her mother does not dare leave her father.

   ·     She met the second-named applicant [in] April 2006, through a mutual [friend]. He came from a different village. When she met him, he was already planning to travel to Australia to study. His family welcomed her, but she hid the relationship from her own family. She would see him at school or after school. While at university she was at his house five times a week after classes. Wednesday was a short day, finishing before noon. She did not tell her family.

   ·     Sometimes she would have bruises on her face, which would infuriate the second-named applicant. When the relationship got stronger she told her sister about the relationship, and swore her to secrecy. Around October 2007 the applicant returned from university to find that her father had discovered a love letter from the second-named applicant. Her father beat her until she was nearly unconscious. The next day she told the second-named applicant that they could not carry on. The second-named applicant was upset about seeing her this way. He said he would save up money to get her to Australia. Her father then told her she would be married to her cousin [who] lived in [another country]. However he did not arrive [as] expected.

   ·     The second-named applicant left for Australia on his student visa in February 2008. She skipped class to see him off, and they kept in touch. While he was gone, she visited his parents frequently on the pretence of attending a [class]. Her friends would ask her why she was visiting this ‘old woman’ and she would say that she felt peace there and liked it there. In mid-2008 her father discovered she was visiting them.  There was a break in the semester and she had to make up a story to tell her father in order to see her husband’s mother. She told her parents that she needed to improve her [skills] and she gave them the name of a place that ran the courses. Her father was suspicious and went to the [college], and found out that she was not there. Her mother then called her, asking where she was and told her that she knew she was not at the college. The applicant was scared and switched off her mobile phone. She went straight to the second-named applicant’s mother’s house. She took nothing from her house. After that semester break she did not go back to school. She never retrieved her clothes, papers, books or any other items from her house. Her husband’s family bought clothing for her to use.

   ·     The night after moving in with the second-named applicant’s family, a group of people including her father, knocked on the door, making a lot of noise and trying to bash the door down. The second-named applicant’s father opened the door to see her father holding a knife, swearing and yelling. He managed to shut the door but they were trying to force entry. The applicant hid, but could see her father, mother, [aunt], [uncle], [cousin] and two of her father’s friends outside. She has no idea how they got the address but thinks they could have found out where she was from a friend. She did not speak to them. They stood outside and she was scared and hid.

   ·     After 15 or 20 minutes the police arrived. They were all taken to the police station. She told the police that she had left her parents’ house of her own free will and was not kidnapped as claimed by her father. The police told her father that as she was of legal age, she could choose where to live. Everyone was released that night. When she left with the second-named applicant’s family, he was still there, so she did not have to face him.

   ·     The next day she went to live with the second-named applicant’s sister, [Ms C], in the small village [about] one and a half hours’ drive away. The second-named applicant’s mother took her there in the hope that she would be safe. Two weeks later, her father went to the second-named applicant’s parents’ house with a group of friends. They broke the windows and harassed the family. The scene was broken up by police, but no charges were laid. After this, the second-named applicant’s father became afraid to leave the house.

   ·     The second-named applicant began arranging a student visa for the first-named applicant with financial support from his sister in Australia, and her employer. The first-named applicant did not have a passport so she applied for one, using an agent. The process did not take long. She was asked how she got a birth certificate or identification documents in order to obtain a passport. She said that she had her identification documents with her as they are bound to carry them in Turkey. She had to get a document from school without going home. They did not ask for additional documents.

   ·     The second-named applicant’s mother was followed to [Ms C’s] apartment by her father a month after she moved there. He demanded that she come out of the house. He had two friends with him, one carrying a knife.  [Ms C’s] husband went out of the house, holding a large plank of wood to defend himself. He told her father to leave. Her father yelled that he would find her wherever she went and would show no mercy, that she had forced him to break his word to their cousin, and that this was a matter of family honour. [Ms C’s] husband then chased him away with the piece of wood.

   ·     Following this incident, the applicant remained indoors like a prisoner with the doors locked. Her father did not return, perhaps believing that she had relocated. However he continued to threaten and harass the second-named applicant’s parents, demanding that they produce her, until the police or neighbours intervened. He was never charged. She stayed with [Ms C] for five to six months. Asked why her father did not come and get her during that five to six months, she said that he may have come but not seen her as she did not come out of the house. She does not think he gave up looking for her. She did not speak to her mother or sister during this time. She was too scared to speak to her sister to check on her or to say goodbye. After she left she is aware that her father continued to harass the second-named applicant’s family.

   ·     Her student visa was granted on 5 December 2008.  She could not organise a flight until [a date in] January 2009. She was very afraid that her father would stop her at the airport.

   ·     She married the second-named applicant the day after she arrived in Australia. One month after arriving in Australia, they held a formal ceremony in [City 1] with members of the second-named applicant’s family present.

   ·     Since she has been in Australia, her father has continued to threaten the second-named applicant’s family to find her. The second-named applicant’s mother had a heart condition and passed away [in] August 2009, and the applicants attribute this to the stress caused by the threats. She has had no contact with her father since being in Australia. She did not contact her sister until April 2017 for her birthday, because she was ‘totally frightened’. She did not want her father to pick up the telephone when she called. She has also felt guilty about leaving her mother and sister behind. She knows that her father would have inflicted more violence on them since then. Since the telephone call, she has been in contact with her sister, who speaks to her while at work in a hospital. She was asked about comments by the delegate of the Department about contacting her sister on [social media] when she had said she was not in contact. She said that perhaps they were friends on [social media] but they only spoke after her birthday. Her sister has told her that her father is still furious with her and determined to find her. The applicant constantly worries about the safety of her mother and sister.

   ·     Her husband was given 28 days to leave after his visa expired in 2009, and he stayed on, in hiding. Her visa expired on 5 May 2010 and she also became unlawful. She was asked why if she had come to Australia to escape harm, she did not investigate how to stay in Australia lawfully. She said that her husband had a one year visa which could not be extended. She accepts that she behaved stupidly. She feels very remorseful about it. They were very young and did not think logically and were unfamiliar with immigration laws. They did find a lawyer who made an application for a further student visa, but they did not have all the documents as the lawyer had not advised them properly. She was a good student, and if she ‘re-thinks the whole thing’ she would never have left school. She did not know about protection visas. She did not go on the internet or ask the Department about it. She said they relied on the Turkish lawyer and then they got scared. Five years ago she fell pregnant unexpectedly as she had had ‘ovary problems’. They panicked as they did not have Medicare and could not go to hospital, so the day after becoming pregnant they went to see a lawyer.

   ·     She fears that if they returned, her husband would be taken by the Turkish authorities to do his compulsory military service, and also because of his activities with the [College] in [Australia]. The college is known to be aligned with the Fethullah Gulen movement which the Turkish government have designated as a purported terrorist organisation dubbed Fethullah Terrorist Organisation (FETO).

   ·     She was asked if she could not relocate to a different area where her father may disassociate from her. The Tribunal said it is possible to move around freely and Turkey is a large country, with many urban areas. She said that if they returned her husband would be arrested as he did not complete his military service and she does not know where she would go and would have no social services. She is also concerned because her husband has been associated with the [College], which has connections with the Gulenist movement. Her father would locate her right away as the police would know that she has been missing. 

   ·     Her life is peaceful and happy in Australia, and her child was born in Australia. She knows that her father would find her wherever she is in Turkey.

1. The second-named applicant gave evidence that when they first met, they were just girlfriend and boyfriend and as they progressed in the relationship, she told him that her father was inflicting violence on her, her mother and her sister. He was aware that this was happening most of the time. When she came to see him, she would be upset and then would be happy to be away from her father. She had been introduced to his parents, and they knew that he was violent and evil. The neighbours were always calling the police so his family did not call the police more, as the police did not do anything. He did see a photograph on his wife’s telephone of her mother after her husband had poured boiling water on her. He also saw bruises on his wife. She also talked all the time about the swearing and shouting and abuse. He felt very bad as he loved her and he did not want her to be hurt.

2. The second-named applicant was asked why he thought that her father would continue to seek her out if they returned. He said that her father wanted her to marry a cousin, and his pride and dignity had suffered, concepts which are strong in Turkey. Her father went nearly every day to his parents’ house threatening to kill them and damaging property. He was sometimes taken to the police station but for only a few hours then would be released. He has threatened both of them with death since they married. His mother had [medical conditions] issues and the doctors told her to be free from stress. His father-in-law caused so much pressure on her, and she could not handle the stress and passed away. He could not go to see her. He was asked why they did not apply for protection considering his wife had come to Australia to escape her father, rather than becoming unlawful. He said that the Tribunal is ‘right to ask the question’. At the time they were very young, only around [age] or [age] years old, and spoke no English and did not understand how things worked. Before his visa expired they went to a lawyer to apply for a visa, and there were missing documents which he did not tell them about. When told to leave within 28 days, he did not know what to do. They thought it was impossible to return because of the violence. They were not knowledgeable and thought it was better to be safe even if unlawful. He apologised on behalf of them both for staying unlawfully in Australia.

3. The second-named applicant heard about [the] College through the Turkish community around four years ago. [The] College is an independent school [that] supports the teachings of Fethullah Gulen.   He has always loved soccer and his friend played soccer there on Saturdays and the applicant joined him on a team. He provided copies of a number of photographs of this team.  He met many people there. He has been a high scorer and loves playing soccer there.

4. Some of his friends, including his sister’s husband asked if he would come to lectures at [College], and he thought ‘why not?’ He started attending lectures there around that time. Now he attends once a week. The lectures focus on different aspects of Islam for about two hours with a one hour break. They are attended by six to ten people. The lectures are about service, about being good people and helping people. They are not run by the school, but by friends and teachers, to try and improve people. His aunt’s husband works at the school and is known to be a Gulenist.  After the lectures he talks about what he learnt with his sister’s husband, who is the only person in his family who follows Fethullah Gulen’s teachings. He likes the concept of Islam taught in the lectures. It is a modern interpretation of religion, cleansed of superstition. The movement encourages members to send daughters to school and university. The teachings are simple, to be kind and nice and create a harmonious world. The Gulenist movement is not a terrorist organisation.  There is no such thing as Gulen philosophy but there are Gulenist schools internationally, and Gulenists help poor people in many countries. He became part of this school community before there was a crisis with Gulenists in Turkey, about four years ago. One morning he woke up and heard about the coup in Turkey. He has now heard that there are many Gulenist schools in Turkey, and that many Gulenists have been arbitrarily arrested.

5. He has many awards to show that he has been playing soccer with these people for many years. He has no documents to show that he attended the lectures, because they are informal. The soccer league has a website and the people associated are all now known as associates of the Gulenists.

6. The second-named applicant said that he has no relatives in Istanbul and no contact with his distant relatives who live in Izmir and Afyon. He said that his wife would feel absolute terror if she had to return. He would also feel afraid for his child. If he was sent back he would be arrested because he has not completed his military service and he would need to complete his service for 15 months. This would mean that his wife and child would be on their own with no support. He would be thinking every single day about whether her father had found her and his child, and hurt them. With every door knock and bell ring, she would be thinking ‘is that him, has he come to get us?’ While shopping she would constantly be thinking that he would be behind them. It is impossible to live with that fear. He sees her living peacefully in Australia, and he does not want his son to be in a violent environment. Australia is now their home.

7. [Mr A] and [Mr B] provided letters to the Tribunal, and evidence at the Tribunal hearing. [Mr A] said that he is the cousin of the second-named applicant, and was born in Australia. He met the first-named applicant when she arrived in Australia but prior to her arrival he had heard of her family problems from the second-named applicant. [Mr A] said that the second-named applicant had told him that she and her mother were beaten up by her father. The second-named applicant told [Mr A] that ‘he could not stand seeing her like that’.  Since her arrival he has helped support her and they see each other frequently. She has told [Mr A] how her father would randomly beat her during her childhood. Once he threw the family out after battering them, and would not let the neighbours take them in. She told [Mr A] that she is very afraid of returning as she fears that her father will kill them. She is concerned that her father would hear through the local police that she had returned. She is afraid that she will be alone. He is very concerned for the first-named applicant’s safety knowing Turkish culture as he does.

8. [Mr B] said that he is the maternal cousin of the second-named applicant and was born in Australia. He stayed with the second-named applicant’s sister when he first arrived in Australia, and has spent time with and supported the second-named applicant. Prior to her arrival, the second-named applicant told him that he had a girlfriend in Turkey and that she was staying at his parents’ house. Gradually he started explaining to him what was happening in her life. Now he is aware of everything that went on.  The second-named applicant was very worried at the time about the trouble she was having with her family. At the time he spoke to her as often as he could at his parents’ house. [Mr B] has played in the second-named applicant’s soccer team on a few weekends when the team has been short of players. He knows that the second-named applicant has been playing there for a long time and that he spends time with the team and goes to lectures with them. [Mr B] said that he has been witnessing the applicants’ stress for over five to six months. He understands how serious it is that if she returned she would live in fear knowing it is just a matter of time before her father found them. He does not know how she would be able to survive.

9. [Mr D] also gave evidence at the Tribunal hearing. He is a maternal cousin of the second-named applicant. The second-named applicant told him when he first arrived in Australia that his father-in-law did not approve of his relationship with his girlfriend in Turkey. [Mr D] has spoken often to the first-named applicant about her fears of returning. He said that unfortunately, in Turkish culture violence against women in families is prevalent. He said that it is terrible to be threatened with life by one’s own father, something that does not happen in Australia. He is aware that the first-named applicant had to leave her sister in order to survive. He has not really been involved with soccer and is not aware that the second-named applicant has attended lectures. He is a strong believer in people having a second chance and said that the applicants are a very good couple and he is happy to support them in any way.

10. The representative submitted that this is a unique claim for protection. The representative also argued that not everybody knows that private harm can be capable of giving rise to protection claims, and this also may be why the applicants did not seek protection earlier. Assessment of credibility is at the heart of the issue and the applicants are credible witnesses. There is a real chance the first-named applicant’s father will find her. He may have put her on a missing persons list, or might find her through her sister, as the applicant may feel compelled to contact her sister. The first-named applicant has post-traumatic stress syndrome and needs to be safe. Returning to an environment of subjective harm will set off triggers. She feels that her father is in Australia even though clearly he is not. It would not be reasonable for her to relocate for these reasons.

11. The applicants provided the following documents:

    ·     Medical report and death certificate for the second-named applicant’s mother, indicating cause of death was cardiac arrest.

    ·     Marriage certificate.

    ·     Photographs of the soccer team.

12. In her student file, her mother was named as her closest relative. Letters on file indicated that the second-named applicant’s relatives would provide financial support to the first-named applicant.

13. In the decision by the Department in this matter, the delegate noted that the Department file in relation to her student visa application did indicate that she did not receive financial support from her father, but instead from her sister-in-law’s employer. The Department noted also that the applicants did not return to Turkey to attend the second-named applicant’s mother’s funeral. The delegate accepted that the applicant suffered abuse from her father. The delegate noted however that she did not suffer harm after she moved out. While finding that there was a real chance of serious harm in her region, the delegate was satisfied that she could safely and reasonably relocate.

    Independent Country Information

14. The Tribunal has taken into consideration information about Turkey from a range of independent sources. The key sources are referred to in the findings set out below.

    FINDINGS AND REASONS

    Nationality/receiving country

15. The first and second-named applicants provided copies of their passports and gave evidence that they are citizens of and were born in Turkey. It was clear that they are familiar with the culture, history and geography of Turkey and the Tribunal is satisfied on the evidence before it including their personal particulars, that they are citizens of Turkey and that Turkey is the receiving country for the purposes of the legislation. The third-named applicant was born in Australia in [year] and it’s a Turkish citizen by virtue of the citizenship of his parents.

    Refugee criteria

16. In order to meet the refugee criteria the applicants must have a well-founded fear of persecution for one of the reasons set out in the Convention relating to the Status of Refugees as amended by the 1967 Protocol (together, the Refugees Convention), were they to return to Turkey in the reasonably foreseeable future.

    Was the first-named applicant abused by her father in the past?

17. The Tribunal must make findings of fact in relation to the applicants’ claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1] 

    [1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

18. While the Tribunal is not required to accept uncritically any and all claims made, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

19. Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998):

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

20. The Tribunal is guided by these decisions, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings. The Tribunal has also taken into account the Tribunal’s Guidelines on the Assessment of Credibility[2] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [2] Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility

21. The Tribunal has also had particular regard to the Tribunal’s Guidelines on Vulnerable Persons[3], in conducting the hearing and evaluating the evidence, in light of the first-named applicant’s evidence of domestic violence and the mental health problems she has suffered as a result.

    [3] Administrative Appeals Tribunal, Guidelines on Vulnerable Persons

22. The Tribunal found both applicants to be credible and consistent witnesses. The Tribunal made this finding notwithstanding the fact that the applicants stayed in Australia unlawfully for a number of years after their visas expired. While deceiving government authorities in such a manner may sometimes indicate that individuals have the propensity to act dishonestly, in this case the Tribunal is satisfied that the applicants did not intend to deceive, instead they were desperate not to return to Turkey in fear of the first-named applicant’s father, were young, inexperienced and did not speak English. Furthermore, they received poor advice from an agent about their options. When these matters were discussed with the applicants, they expressed deep remorse for staying in Australia unlawfully, with the second-named applicant, saying that the Tribunal was ‘right to ask questions’ about it. They gave consistent accounts about the events which took place in Turkey and presented their evidence in an open and straightforward manner.

23. The first-named applicant related her story of horrific abuse at the hands of her father with the kind of emotion often commensurate with telling the truth. She spoke persuasively of how ‘ever since she could remember’, her father had beaten her, her mother and her sister. She said that he was ‘psychologically unwell’ and never gave them love, ‘even for one day’. Her evidence that for someone to experience this kind of violence, one must ‘live it’ was persuasive, and she gave an example of how they returned terrified from her grandparents’ house after her father arrived with a knife, and how the grandfather too was afraid. She also mentioned how guilty she feels for leaving her mother and sister behind, emotions which are consistent with a person who has been through such abuse, and escaped it. She was able to recall specific details such as conversations and sequences which indicate that she had the direct first-hand experience she says that she had. Her evidence about her father’s dislocation from his family, and how neighbours were afraid of him, and how she covered up the bruises, and tragically of her mother’s suicide attempts, all accord with the picture she has painted of a dangerous and violent man who abused the women in his family throughout their lives.

24. Her story was corroborated by the evidence of her husband, who persuasively told the Tribunal how he found bruises on his wife and saw photographs of her mother who had been burnt when her father threw boiling water on her. Three other witnesses in Australia have recounted how they heard about her abuse from the second-named applicant and then first-hand from her, and how the second-named applicant hated seeing her hurt. Her student visa file indicates that financial support was not provided by her family, and how rather it came from her husband’s family as claimed.

25. The Tribunal is satisfied therefore that the first-named applicant suffered violent physical and mental abuse from her father in her childhood and that he beat her ‘until she was nearly unconscious’ when he discovered that she had been having a relationship with the second-named applicant. This evidence is also convincing as she explained how she ended the relationship after the beating took place. The Tribunal is satisfied that while she lived in her sister-in-law’s house, he continued to harass and abuse her husband’s family. The Tribunal is satisfied that he has continued to abuse her mother and sister since the applicant has been in Australia.

26. In accepting the applicant’s evidence that she was seriously harmed by her father, the Tribunal has taken into consideration independent information which indicates that violence against women, including family based violence and honour killings is a serious problem in Turkey, as summarised in the information below.

    Violence against women in Turkey

27. The Department of Foreign Affairs and Trade (DFAT) reports that gender based and family violence is widespread in Turkey in both urban and rural areas. According to research undertaken by the Ministry of Family and Social Policies, 86 percent of women surveyed stated that they had experienced physical or psychological violence from their partners or families. 70% of women reported having been physically assaulted by partners, family members or neighbours. While severe cases attracted media interest and public condemnation, most people accepted lower levels of violence such as a man slapping his wife in public, as a private affair. The Report noted that there were no reliable statistics for honour killings but women’s advocate groups stated that they were common among conservative families. DFAT assessed that women face a moderate risk of gender based violence.[4]

    [4] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey,  9 October 2018

28. The United States Department of State has reported that violence against women, including honour killings, remains a serious and widespread problem in rural and urban areas of Turkey. The report notes that the law includes a sentence of life, however non-governmental organisations reported that actual sentences were reduced due to mitigating factors. The law allowed judges to take into account anger or passion caused by misbehaviour of the victim[5]

    [5] United States Department of State, Country Reports on Human Rights Practices for 2017 Turkey, type="1">

29. A number of reports have also found that women who marry against the wishes of their family may be considered as having ‘dishonoured’ their family, an act which may be punishable by ‘honour crimes’ including death and injury.[6] In one of the cases of honour killing, a 19 year old was killed by her brother, with the father’s condonation, for marrying without her parents’ approval.[7] In another case, a family believed that the daughter had dishonoured them for marrying from a rival sect.[8]  In April and March 2011 Christian Science Monitor and The Guardian reported the case of Hatice Firat, a 19 year old woman who was reportedly killed by her brother after ‘running away to live with her boyfriend – an offense her relatives saw as staining the family’s honor.’[9] Further, a 2007 article by Hurriyet Daily News makes reference to a study conducted by the Turkish women’s rights group, KA-MER, which found that 23 female participants had ‘faced verdicts of death simply because they met with or escaped with the men they love.’[10] Sources suggest that refusing an arranged marriage may also be justification for an honour killing;[11] however, no specific cases of this occurring were located.[12]

    [6] Sev’er, A, In the Name of Fathers: Honour Killings and Some Examples from South-Eastern Turkey, 2005, Ghosh, P,  ‘Honor Killings: The Scourge of Turkey (Part 2), International Business Times, 10 July 2011, Shafak, E, ‘Turkey Opens its Eyes to Domestic Violence’, The Guardian, 23 August 2011, Moore, M,  In Turkey “Honour Killings” Follows Families to Cities, The Washington Post, 8 August 2001, Cornell Library, Shafak, E, ‘Turkey Opens its Eyes to Domestic Violence’, The Guardian, 23 August 2011, Christie-Miller, A, ‘Turkey Grapples with spike in ‘honour’ Killings’, Christian Science Monitor, 14 April 2011, An original version of the report could not be located. See: ‘Report Reveals Horror of “Honor-Killing”, Hurriyet Daily News, 24 September 2007, Chesler, P, ‘Turkey Calls for Campaign Against “Violence against Women” while Honor Killings Remain Rampant’, Breitbart, 16 February 2015, US Department of State, 2008 Country Reports on Human Rights Practices Turkey,2009, Searches were conducted of Turkish and international news media, major humans rights reports, major foreign government reports, the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and UN Women websites for Turkey, DIBP and tribunal resources. General internet searches were also undertaken. 

During a 2011 interview with International Business Times, Bingul Durbas[13] similarly reported that honour killings are ‘widespread’ and occur across the country and do not only occur in Kurdish communities:

IBTIMES: Is it fair to say that the majority of honor killings in Turkey occur in the rural southeast, where Kurds dominate?
DURBAS: No, through the interviews I have conducted and the court cases I collected during my field-work, I can confirm that honor crimes occur across all regions in Turkey.

Honor crimes are not unique to the Kurdish communities. Linking honor crimes to Kurdish culture leads to the stigmatization of entire Kurdish communities and it “ethnicizes” honor crimes.

Such stigmatization disregards the fact that honor crimes take place in all regions, across all ethnic groups, social classes, professions and among all age groups in Turkey.

It is important to note that honor crimes are a particular manifestation of universal patriarchal violence against women and are used as a means of controlling women’s lives and thereby maintaining male control over women.[14]

[13] According to the article, Bingul Durbas is a doctoral researcher in Sociology/Gender Studies at the University of Sussex in England, about honor killings in Turkey. She is also affiliated with the Humboldt University zu Berlin in the Diversity and Social Conflict department, working as a PhD researcher for the United Nations Research Institute for Social Development-supported project on honor crimes, Ghosh, P, ‘Honor Killings: The Scourge of Turkey (Part 1), International Business Times, 10 July 2011, Ghosh, P, ‘Honor Killings: The Scourge of Turkey (Part 1), International Business Times, 10 July 2011,>

A 2007 Turkish-language report by the Turkish Government[15] (quoted by a December 2013 article published by the Law & Justice Review journal) found that the three big metropolises of Turkey (Istanbul, Ankara and Izmir) ‘have come across the vast growth of honor killings in the last five years.’[16]

[15] A copy of the original Turkish-language report by the Turkish Government is available at:

[16] Tokdemir, S, Honor Crimes in Turkey: Rethinking Honour Killings and Reconstructing the Community using Restorative Justice System, December 2013, p.259, Law & Justice Rewiew, Vol. IV, Issue. 2, >

Honour crimes are generally underreported in Turkey; such issues are often considered to be ‘private matters’ and are not reported, or they are incorrectly recorded as accidents or suicides.[17] As a result, there is a lack of reliable data about honour crimes in Turkey.[18] Notwithstanding this, most of the sources indicate that there is significant violence against women in Turkey, as well as societal condonation of low impact violence, and that honour killings do take place across Turkey.

Does the first-named applicant face a real chance of serious harm from her father for the Convention reason, membership of a particular social group, if she returned to Turkey in the reasonably foreseeable future?

[17] Ghosh, P, ‘Honor Killings: The Scourge of Turkey (Part 1)’, International Business Times, 10 July 2011, Ghosh, P, ‘Honor Killings: The Scourge of Turkey (Part 1)’, International Business Times, 10 July 2011, >

The Tribunal is satisfied that the applicant has suffered serious harm in the past from her father, while living in Turkey, on the basis of all the evidence, and given the country information set out above.

The next issue is whether the applicant has 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 he or she has a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.

In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[19]

… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

[19]    Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

The Tribunal is satisfied, given her father’s persistent and frequent violent conduct and the fact that he searched for her consistently when she was hiding as well as harassing other family members, that there is a real chance of serious harm if she returned to Turkey in the reasonably foreseeable future. Her real fear of her father was evident throughout her evidence, and in her fears for her mother and sister whom she says she worries about constantly. In order to meet the refugee criteria, however, the persecution that the first-named applicant fears must be for a Convention reason, race, religion, nationality, membership of a particular social group or political opinion.

The Tribunal is not satisfied that the persecution the applicant fears is for reason of membership of a particular social group of ‘women in Turkey’, or ‘women who have married against their family’s wishes’, or any similar group.  The harm the applicant fears would be directed at her because her father perceives her as having brought dishonour to the family and because of his own alcoholism, psychological state and violent tendencies.  The Tribunal is not satisfied that her father would harm her because of her membership of the particular social group of ‘women in Turkey’, or ‘women who have married against their family’s wishes’, or any similar group, or for race, religion, nationality or political opinion.

Does the applicant face a real chance of serious harm based on a discriminatory withholding of state protection for reasons of membership of the particular social group of ‘women in Turkey’?

Women suffering violence from family members may nevertheless, depending on the circumstances, come within the scope of the Refugees Convention: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. A majority of the High Court in Khawar held that the Refugees Convention test may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related.  Importantly, there must be systematic and discriminatory conduct, and  mere inaction will not suffice.

The applicant has contended that she will not be afforded protection by the Turkish authorities from harm at the hands of her father, as she has been denied this in the past because she is a woman.  The Tribunal has considered whether the country information supports a finding that there will be selective and discriminatory withholding of state protection for a Refugees Convention reason.

According to DFAT, the judicial institutions in Turkey are well established, civilian run and benefit from a long tradition of public service. This includes the Turkish National Police. Article 10 of the Turkish Constitution states that all individuals are equal without any discrimination before the law, and this is respected in many areas of life. However, according to DFAT, societal, cultural and religious barriers continue to limit women’s participation in society. In its July 2016 review of Turkey, the Committee on the Elimination of Discrimination Against Women (CEDAW) expressed concern about the persistence of deep rooted discriminatory stereotypes concerning the roles and responsibilities of women and men in the family and society. These roles emphasised the traditional role of women as mothers and wives, thereby undermining women’s social status, autonomy, educational opportunities and professional careers as well as constituting an underlying cause of gender-based violence against women. CEDAW noted that patriarchal attitudes were on the rise within state authorities and society, including from senior political figures. The DFAT Report states that gender-based and family violence is widespread in Turkey, and that domestic violence is not specifically criminalised. Protection orders were insufficiently monitored and rarely enforced. The Report states that courts often hand lenient sentences to perpetrators of sexual violence. In April 2016 the Minister for Justice defined domestic violence as an internal family matter and questioned whether the state had a role in interfering in disagreements between husbands and wives. There were only 101 women’s shelters nationwide as of 2015. In relation to honour killings the Report stated that in practice, individuals convicted of honour killings often had their sentences reduced due to mitigating factors, including anger and passion caused by the victim’s ‘misbehaviour’. Human rights observers reported a degree of societal acceptance that an ‘honour’ violation could justify relatives killing women.[20]

[20] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey,  9 October 2018

According to the United States Department of State, the authorities do not effectively or fully enforce laws prohibiting violence against women. While courts regularly issue restraining orders, police rarely enforce them. The law provides for violence-prevention and monitoring centres offering economic, psychological, legal and social assistance but NGOs asserted that there were not enough shelters and they did not provide adequate care or service. NGO’s also asserted that the quality of services provided on helpline calls was inadequate. Women’s counsellors also suggested that government counsellors sometimes encouraged women to remain in abusive marriages at their own personal risk. Courts also gave reduced sentences to some men found guilty of committing violence against women, sometimes citing provocation by women.[21]

[21] United States Department of State, Country Reports on Human Rights Practices for 2017 Turkey, >

In one case where a brother killed his sister because her family believed she had dishonoured them for marrying against their wishes, the brother spent 11 months in prison.[22]

[22] Moore, M,  In Turkey “Honour Killings” Follows Families to Cities, The Washington Post, 8 August 2001, Cornell Library, >

Although Law No. 6284 addressed many of the legislative gaps in protection for victims of domestic violence, implementation of the law by Turkey’s legal and judicial bodies has been criticised. In early 2015 the United Nations Country Team for Turkey reported in regard to Law No. 6284 that ‘effective implementation, particularly within the police and the judiciary system, remains a challenge’.[23] Moreover:

Though the number of shelters has doubled since 2010, it still remains too low to cover all victims. The UN regrets that the Municipal Law No. 5393 was changed in December 2012 and the population threshold for the establishment of shelters for women and children in metropolitan municipalities and municipalities was increased. Specialised shelters, special needs groups, a dedicated hotline and women’s counselling and monitoring centres need to be established. More efforts are needed for the effective access of victims to appropriate legal information, legal aid and judicial proceedings.[24]

[23] United Nations Country Team in Turkey, Universal Periodic Review of Turkey 2015 - UNCT Submission, 1 January 2015, UNHCR Refworld, United Nations Country Team in Turkey, Universal Periodic Review of Turkey 2015 - UNCT Submission, 1 January, UNHCR Refworld, >

Furthermore, the Office of the United Nations High Commissioner for Human Rights (OHCHR) reported to the Human Rights Council Working Group on the Universal Periodic Review in January 2015 that CEDAW ‘was concerned about violence against women, including domestic violence’; the Committee on Economic, Social and Cultural Rights was ‘concerned that domestic violence was not criminalized, and called on Turkey to criminalize it’; and that CEDAW ‘considered that Law No. 6284 did not contain provisions for prosecution and punishment of perpetrators and recommended its amendment.’[25]

[25] United Nations Human Rights Council 2015, Compilation prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21: Turkey, 12 November 2015, UNHCR Refworld, >

The World Post reported in February 2015 that despite significant legislative reform in the area of preventing violence against women, and regional initiatives such as being the first country to ratify the Council of Europe’s Convention on Preventing and Combating Violence Against Women and Domestic Violence in 2012, violence against women in recent years has increased.[26]

[26] Noi, A. U ‘Will the Reinstatement of the Death Penalty in Turkey Prevent Violence Against Women?’, World Post, 24 February 2015, >

This country information about the withholding of state protection for women, accords with the experiences of the applicant. Police were called by neighbours to the home of the second-named applicant on a number of occasions after her father had assaulted her and her mother, and when he had pushed them out of the house. However on no occasion was her father charged or was any action taken against him or to protect the applicant, her sister or mother. She said that police would ‘have a look around’ and then leave saying it was a ‘family matter’. On one occasion he had a knife and had broken windows, but still the police took no action. Police also attended when her father harassed the family of her husband, and damaged property, but again, he was never charged and no protection was afforded to the applicant, her mother or sister.

In light of the country sources set out above considered cumulatively, and the applicant’s personal experiences, the Tribunal is satisfied that the Turkish government or authorities withhold protection from women who are being threatened with domestic violence in a systematic and discriminatory manner, and that there is State toleration or condonation of the persecution. 

The Tribunal finds that the harm the applicant fears from her father would be persecution because of selective and discriminatory withholding by state authorities of state protection for a Convention reason, membership of a particular social group of ‘women in Turkey’.

Findings on well-founded fear of persecution

The Tribunal is satisfied on the basis of the extensive harm inflicted on the first-named applicant, her mother and sister in the past, and the repeated searches her father made to find her, as well as country information about familial violence against women, that there is a real chance that the first-named applicant’s father would seriously harm her if she returned to Turkey in the reasonably foreseeable future.

The Tribunal is also satisfied that there is a real chance that the state would discriminatorily withhold protection from her for reasons of her membership of the particular social group ‘women in Turkey’.

The Tribunal is satisfied therefore that the first-named applicant has a well-founded fear of persecution for a Convention reason were she to return to Turkey in the reasonably foreseeable future. The Tribunal is satisfied therefore that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Accordingly, the applicant satisfies the criterion set out in s.36(2)(a).

Could the first-named applicant safely relocate?

1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality 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.

2. The applicant claims that she could not safely relocate as her father has actively sought her out in the past and would continue to do so. She is also concerned that her father may find out from local police that she had returned, and that this would make it easy to find her wherever she is.

3. The applicant also claims that it would not be reasonable to relocate given that she is highly vulnerable and psychologically ‘infirm’. A report from [a] Clinical Psychologist from [a] Medical Centre, dated [in] July 2018 states that the applicant was referred by her general practitioner in April 2018 for anxiety and depression. The diagnosis was for post-traumatic stress disorder consistent with her reported history. The psychologist said that if she returned then this would have a detrimental impact on her health which could lead to unintentional harm towards her son. She also provided an opinion that the applicant would not have an ability to work with a heightened level of anxiety, and would have little to no social functioning fearing that her father would locate her. She concluded that ‘living in hiding will immensely be destructive to her psychological state and consequently that of her son’. The applicant claims that she has limited work experience and is the mother of a young child. She would be forced to live alone as the second-named applicant would be required to undertake compulsory military service, and could be detained by Turkish authorities because of links to the Fethullah Gulen movement. Further, the level of mental health care and treatment in Turkey is inadequate.

4. DFAT, in its report, states citizens of Turkey can and do relocate for a variety of reasons. Turkish citizens are formally required to have their electoral registration transferred and to receive a certificate of residence issued by the local muhtar, an elected village or neighbourhood representative, without which it may be difficult to access government services. DFAT states that women fleeing family violence, are less likely to have access to sufficient support services and are likely to face societal discrimination. [27]

   [27] Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey,  9 October 2018

5. UNICEF states that ‘if the victim hides or runs away, she is likely to be pursued’ by her family.[28] The Tribunal recognises that in the applicant’s particular circumstances, her father is likely to pursue her, given that he has done so regularly in the past, and given his violent, alcoholic and unpredictable personality. As the applicant would need to access social services and obtain a certificate issued by the muhtar, and would also want to contact her mother and sister, it is likely that the father would be able to locate her.

   [28] UNICEF, Honour Crimes and Forced Suicides, 1 January 2014,  >

   The Tribunal is not satisfied therefore that the first-named applicant could safely relocate to another part of Turkey.

   Does the second-named applicant have a well-founded fear of persecution for reasons of attending the Gulenist school?

6. The second-named applicant claims that he will be harmed if he returns to Turkey because of his connections with the [College]. An article in [November] 2017 referred to [the] College being linked to FETO, which is the name used by Turkish authorities for the Gulen movement.[29]

   [29] [Source deleted.]

7. The Gulen movement started as a religious movement in Turkey during the 1960s through the sermons of Muslim cleric, Fethullah Gulen. Gulen has been in self-imposed exile in the USA since 1999. The Gulen movement has since then transformed into a civil society movement that includes a cluster of religious, educational and social organisations in Turkey and abroad. Although the movement has criticised the ruling AKP and President Erdogan, it is not a political movement.[30]

   [30] Glenn, C, Wilson Center, Profile: Fethullah Gulen, 18 July 2016

   Has the applicant been involved with the Gulenist community in [Australia]?

8. The Tribunal is satisfied that the applicant has played soccer and attended lectures at the [College] for about four years, as well as socialising with Gulenist supporters. The Tribunal is satisfied that currently he attends Gulenist lectures once a week. For reasons outlined earlier, the Tribunal has found the applicants to be credible and consistent witnesses. The applicant’s evidence about his associations with the college are persuasive in that he has associated with the community since well before the coup d’état in Turkey, when the first animosity against people associated with the Gulenist movement began. The Tribunal is satisfied therefore that he engaged in this conduct for reasons other than bolstering his refugee claim. He has spoken of first getting involved with the school because of connections with the Turkish community, and now ‘wonderful’ it was to play soccer and to ‘meet so many people from Turkey’. He also did not try to exaggerate his involvement with the community, but rather outlined in a straightforward manner his participation in the soccer team, his social and familial associations with Gulenist supporters, and his attendance at lectures. He was able to provide information about the Gulenist movement and the lectures he attended, stating that he liked the concepts of Islam taught, as it was a ‘modern interpretation of religion, cleansed of superstition’. He praised the approach to girls’ education, the focus on kindness and service, and discussed with the Tribunal the lack of revolutionary intent and political agenda.

   Treatment of Gulenists in Turkey

9. In April 2018 the European Commission reported that since the attempted coup in Turkey, over 150,000 people have been taken into custody and 78,000 arrested on terror-related charges.[31] Most are alleged to have ties to the Gulenist movement.[32] Tenuous links are sufficient, including sending a child to a Gulenist school.[33] According to DFAT, the Gulen movement has been designated as a terrorist movement after there were corruption charges in 2013 implicating AKP government members including President Erdogan. Civil society organisations say it is a witch-hunt. People with perceived links to the movement are removed from the public service, dismissed or reassigned to remote areas. During 2015, prosecutors, judges and police officers suspected of being Gulenists were charged with being members of a terrorist organisation. Schools were closed down and journalists arrested. According to DFAT, Gulenists are at risk of imprisonment, and would find it difficult to get jobs.[34] In the aftermath of the attempted coup, 100,000 suspected Gulen linked academics and teachers, civil servants and other professionals were fired from their positions, with 48,000 court actions commenced.[35]

   [31] European Commission, Turkey 2018 Report, 17 April 2018, Al Monitor,  Erdogan vows to continue global manhunt for Gulen affiliates, 9 April 2018, European Commission, Turkey 2018 Report, 17 April 2018, Department of Foreign Affairs and Trade, DFAT Country Information Report Turkey,  5 September 2016

   [35]Freedom House,  Freedom in the World 2017 – Turkey, 31 January 2017, p. 4; Hurriyet Daily News,  State of emergency ends amid proposal of new anti-terror law,  18 July 2018,

10. Prior to the attempted coup, there were over 1,000 Gulenist linked schools and 15 universities in Turkey, with enrolments of around 135,000 and 65,000 students respectively. The anti-Gulen crackdown notwithstanding, reports indicate that following the forced closure of these institutions after the attempted coup, the students were permitted to enrol in other schools.[36]

    [36] BBC, Turkey's post-coup crackdown hits ‘Gulen schools’ worldwide, 16 September 2016, p. 13, ARC Asylum Research Consultancy, on ecoi.net, ‘Turkey Country Report – Update November 2017 [3rd edition]’, 21 November 2017, p. 62,

11. There have also been arrests of foreign students studying in Turkey.[37]

    [37] Daily Sabah, ‘48 police serving military officers detained for links to FETÖ’, 04 September 2018, of Gulenists outside Turkey

12. Following the attempted coup in 2016 the Turkish government closed down Gulenist linked schools and universities in Turkey, and pressured various other countries to shut down such schools in their countries, sometimes successfully.[38]

    [38] BBC, Turkey’s post-coup crackdown hits ‘Gulen schools’ worldwide, 16 September 2016, p. 13, , ARC Asylum Research Consultancy, on ecoi.net, ‘Turkey Country Report – Update November 2017 [3rd edition]’, 21 November 2017, p. 62, Al Monitor, Turkey snatches Gulenist teachers in Moldova, 6 September 2018, Foreign Affairs, The Remarkable Scale of Turkey’s Global Purge, 29 January 2018

13. No reports were located to indicate that students who have simply attended Gulenist linked schools, either in Turkey or abroad, or who have attended sports or other events at Gulen linked schools overseas, are being arrested or harmed by the Turkish authorities for this reason alone, on return to Turkey.[39]

    [39] Sources consulted include Google and Yahoo internet search engines; the European Country of Origin Information Network (ECOI); the European Asylum Support Office (EASO) COI Portal; Relief Web; the Immigration and Refugee Board of Canada (IRB) and UNHCR Refworld.

14. Turkish agents have reportedly abducted Turkish citizens, including teachers at Gulenist linked schools abroad, conducting forcible renditions back to Turkey.[40] The Turkish government has pressured countries to deport accused Gulenists back to Turkey, including teachers at Gulenist-linked schools abroad. The Turkish authorities have also conducted extraordinary renditions of individuals accused of links with the Gulenist movement, sometimes without the approval of the host country. A January 2018 Foreign Affairs magazine report stated:

    Since the failed coup attempt, Turkey has exerted diplomatic pressure on various governments to arrest or deport hundreds of individuals from around the world. By my count, 15 countries have arrested or deported various representatives of the movement, ranging from supposed financiers to school teachers.Those countries include Angola, Azerbaijan, Bahrain, Bulgaria, Georgia, Indonesia, Kazakhstan, Malaysia, Morocco, Myanmar, Pakistan, Qatar, Saudi Arabia, Sudan, and Turkmenistan. Their diversity gives a sense of how dispersed the Gulen movement is and how aggressively the Turkish government has behaved. In at least three cases—Kazakhstan, Myanmar, and Sudan—individuals appear to have been turned over to Turkey without judicial proceedings, perhaps through the operation of a special National Intelligence Organization unit that Turkey’s state news agency says was established to trackdown “high-value” Gulenists.There have also been multiple cases in which those deported were apparently seeking asylum and thus had protected status at the time they were sent to Turkey: news reports say this was the case in Azerbaijan, Bahrain, Bulgaria, Malaysia, and Pakistan. Bulgarian Prime Minister Boyko Borissov admitted that the August 2016 deportation of a software engineer who had applied for asylum before the coup attempt was “on the edge of the law.” In other cases, like in Angola, Pakistan, and Qatar, there were mass deportations following the closure of Gulen schools.[41]

    [40] Al Monitor, Turkey snatches Gulenist teachers in Moldova, 6 September 2018, Foreign Affairs, The Remarkable Scale of Turkey’s Global Purge, 29 January 2018, >

    In a recent case regarding Moldova, Al Monitor reported of six Turkish nationals, linked to a private Gulenist associated school in Moldova, being detained in a joint action by Turkish and Moldovan intelligence services in September 2018, and rendered back to Turkey. Those deported reportedly included the school deputy principal, the school accountant, who had reportedly applied for asylum in Moldova, as well as a student.[42] Commenting on such renditions, the report stated that Erdogan himself declared at a public rally in April that Turkey had as of then snatched 80 FETO members abroad. “We will chase them no matter where they flee,” he said. Erdogan’s comments followed the March 29 renditions of five school teachers and a medical doctor associated with Gulen-affiliated schools from Kosovo. The forced repatriations via a private jet owned by MIT (Turkish Ministry of Intelligence) provoked an outcry in the tiny Balkan state. Turkmenistan, Gabon and Bulgaria are among several countries cooperating with Turkey against Gulen, either arresting and extraditing teachers or closing down their schools. This week Erdogan told reporters he had submitted a list of 130 FETO operatives to Kyrgyz authorities during an official visit to the Central Asian state. In July, Mongolian authorities grounded an airplane that was allegedly carrying Turkish school teacher Veysel Akcay, who had lived in the country for 24 years. He was reportedly abducted outside his apartment in the capital Ulaanbaatar. The Turkish Embassy denied involvement in the scheme.[43]

    [42]  Al Monitor, Turkey snatches Gulenist teachers in Moldova, 6 September 2018, Al Monitor, Turkey snatches Gulenist teachers in Moldova, 6 September 2018, >

    In March 2018 another six Turkish citizens were rendered back to Turkey from Kosovo, and Reuters reported that the Kosovo Prime Minister had said that he was not informed about the operation to deport the six, which he said was carried out by the secret service agency and police. Local media have dubbed the move a “kidnapping.”[44]

    [44] Reuters, Six Turks arrested in Kosovo over Gulen links, 29 March 2018, in Australia

15. Turkish authorities have monitored suspected Gulen supporters living abroad, including in Australia. Public statements made by the government confirm this. In April 2018, President Erdogan vowed to continue to pursue and repatriate Turkish nationals linked to the Gulen movement, stating ‘no matter where they run or how much they run, we will go after them’.[45] In October 2017, President Erdogan also stated: Neither in the East nor the West is a single member of this organization comfortable as before, nor will they be. If not today, then tomorrow, one day every member of the FETO traitors’ front will pay for his treason against the country and the nation.[46]

    [45] Vice News, Turkey’s spy agency has secretly abducted 80 Turkish citizens living abroad,11 April 2018

    [46] Foreign Affairs, The Remarkable Scale of Turkey’s Global Purge, 29 January 2018, >

    In November 2017, state news agency Anadolu reported that the government was ‘operating a special unit that operated worldwide exclusively against the Gulen movement.’[47] Credible sources including Jane’s Intelligence and Foreign Affairs have confirmed that the Turkish state is actively monitoring its opponents abroad, particularly suspected Gulenists.[48]

    [47] Jane’s Intelligence Review, Turkey’s intelligence service projects influence abroad, 31 January 2018, Foreign Affairs, The Remarkable Scale of Turkey’s Global Purge, 29 January 2018, Jane’s Intelligence Review, Turkey’s intelligence service projects influence abroad, 31 January 2018, >

    The Turkish government has monitored suspected Gulenists in Australia. In March 2017, German newspaper, Spiegel Online reported that documents produced by overseas Turkish embassies revealed that Turkish diplomats were collecting information on suspected Gulen supporters in several countries, including Australia.[49] This is supported by news reports that state confidential documents leaked by an Australian politician revealed that the Diyanet had asked Turkish consulates in 35 countries, including Australia, to gather information about Gulen supporters.[50] Turkish embassies in these countries, including in Australia, reported on schools they believed are affiliated with the Gulen movement, as well as documenting the organisations Gulen supporters are active in, the media they write for and relationships between alleged Gulen supporters and the country’s government.[51] According to the report, ‘the result is a more than 100-page compendium of suspected enemies of the state around the world – an imposing document that provides evidence of global espionage activities against suspected members of the Gulen movement.’[52]

    [49] Spiegel Online, Turkey’s Worldwide Monitoring of Suspected Gulen Supporters, 31 March 2017, Huffington Post, Turkey’s influence network in Europe is leading to tension, 5 June 2017, The Australian, Ankara-supplied clerics spy on Turkish-Australian communities, 20 December 2016, Spiegel Online, Turkey’s Worldwide Monitoring of Suspected Gulen Supporters, 31 March 2017, >

    In Australia while there are no reports of students from [the] College being harassed, there are reports of pressure being placed on members of the Turkish diaspora to remove students from these schools, and one campus had to close because of declining student numbers.[53] The Turkish consulate [unsuccessfully] lobbied politicians from having contact with Gulen associated groups.[54]

    [53] [Source deleted.]

    [54] [Source deleted.]

16. A number of reports suggest that the Turkish authorities monitor the Turkish diaspora in Australia, gathering information on people associated with Gulenism and the [College].[55]

    [55][Source deleted.], ;The Australian, Ankara-supplied clerics spy on Turkish-Australian communities, 20 December 2016, Spiegel Online, Turkey’s Worldwide Monitoring of Suspected Gulen Supporters, 31 March 2017, Saturday Paper, Turkish cleric Gulen’s Australian supporters fear reprisals, 25 March 2017, type="1">

17. In April 2017, Turkey Purge reported that Salih Arslan, a member of the board of the Diyanet-funded Süleymaniye mosque in Perth, incited worshippers to spy on followers of the Gulen movement and its affiliated institutions, including schools.[56] According to the report, in video footage taken at the mosque, Arslan can be heard asking people to report ‘every kind of information’ about Gulen movement activities in Australia to Turkish consulates. In December 2016, The Australian similarly reported that Turkish imams preaching in Melbourne and Sydney mosques had been instructed to ‘spy on Australian supporters of Fethullah Gulen’. According to the article, Turkish mosques in Australia have traditionally used imams supplied by the Diyanet in Turkey.[57]

    [56] Turkey Purge, Turkish gov’t imam in Australia mobilizes worshippers to spy on Gulen movement, 7 April 2017, The Australian, Ankara-supplied clerics spy on Turkish-Australian communities, 20 December 2016, in relation to the second-named applicant

18. The Tribunal notes that it has not located information which indicates that the Turkish authorities target students who have attended schools or sporting events associated with these Gulenist schools. However, in this case, the second-named applicant has been associated with the school since well before President Erdogan’s crackdown on Gulenists, and has attended lectures over that period relating to Gulenist thought. He also associates with members of the Gulenist community in Australia.

19. Given the fact that the independent sources indicate that the Turkish government actively monitors the Turkish community in Australia generally, and the [College] specifically, it is likely that the second-named applicant would be known to Turkish authorities as a person with associations to the Gulenist community in Australia over a period of at least four years. The Turkish government has taken the extreme steps of abducting Turkish citizens including teachers associated with Gulenist schools back to Turkey, including asylum seekers, and in one case a student. The sources indicate that the authorities arbitrarily arrest individuals tenuously associated with Gulenists in Turkey, including students, teachers and parents. Large numbers of people associated with Gulenists have been arrested and charged. The Tribunal is satisfied, on the basis of this wide-ranging independent information, that there is a real chance of serious harm for this applicant, based on his perceived political opinion, if he were to return to Turkey in the reasonably foreseeable future. Given that the harm he would suffer was from the authorities, the applicant could not relocate or avail himself of state protection, and there is no information before the Tribunal that he has the right to enter and reside in a third country.

20. The Tribunal is satisfied therefore that the second-named applicant has a well-founded fear of persecution based on political opinion were he to return to Turkey in the reasonably foreseeable future.

    CONCLUDING PARAGRAPHS

21. For the reasons given above the Tribunal is satisfied that the first-named applicant and second-named applicant are persons in respect of whom Australia has protection obligations. Therefore the first-named and second-named applicant satisfy the criterion set out in s.36(2)(a).

22. The Tribunal is not satisfied that the third-named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the third-named applicant is the child of the first and second-named applicants and is therefore a member of the same family unit as the first-named and second-named applicants for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first-named and second-named applicant’s application. It follows that the third-named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

    The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first-named applicant and second-named applicant satisfy s.36(2)(a) of the Migration Act; and

    (ii)that the third-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named and second-named applicant.

    Jane Marquard
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

23. 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

24. 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.

25. 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.

26. 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.

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

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

    Complementary protection criterion

100. 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’).

101.   ‘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.

102.   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

103.   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.

Member of the same family unit

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.

Hurriyet Daily News, ‘Foreign students detained over FETÖ links in Turkey's south’, 30 June
2018, Anadolu News Agency, ‘30 PKK terrorists neutralized in 1 week across Turkey’, 04
June 2018,  Daily Sabah, ‘Dozens detained, 122 face life for links to FETÖ, coup attempt’, 24
May 2018,

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1602770 (Refugee) [2018] AATA 5233

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Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55

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