1605495 (Refugee)

1605495 (Refugee) [2019] AATA 6815 (30 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605495
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Peter Vlahos
DATE:30 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 30 October 2019 at 6:49am
CATCHWORDS
REFUGEE – protection visa – Turkey – religion – Alevi – Christian convert – particular social group – women – victim of family violence – race – Kurd – fear of killing – state protection – divorce – complementary protection – gender based violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Turkey, applied for the visa on 11 August 2014. The delegate refused to grant the visa on the basis that that the application did not satisfy subsection 36(2) of the Migration Act.
The applicant sought review of the delegate’s decision on 11 April 2016. She provided the Tribunal with a copy of the delegate’s decision records.[1]
[1] See AAT File Folio [1]-[20]
The applicant appeared before the Tribunal on 15 October 2019 to give evidence and to present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicant was represented at the hearing by their registered migration agent via telephone link.

CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if she was to return to Turkey.
Identity
Considering the copies of the applicant’s passport provided to the Department of Immigration and Border Protection, and noting the delegate’s findings in this regard, the Tribunal accepts that the applicant is a citizen of Turkey. Accordingly, the Tribunal finds that Turkey is her country of nationality for Convention purposes and is her ‘receiving country’ for complementary protection purposes.[2]
Migration History of the applicant
[2] See Folios [72] – [87] of the Department of Immigration and Border Protection File [Number]
[In] July 2014 the applicant applied for a [Transit] visa at the Ankara diplomatic post (Australia) on the basis that she intended to transit through Australia to New Zealand (she had a New Zealand visa label in her passport). The [visa] was granted on the same date. [In] August 2014 the applicant arrived in Australia and has not departed. On 11 August 2014 the applicant lodged a Protection visa and was granted the associated bridging visa.
Claims of the applicant for Protection
The applicant’s claims for protection are as follows:
·The Applicant was born an Alevi, Kurdish Muslim in [Town 1], Erzincan, Turkey and converted to the Christian faith.
·She fears returning to Turkey on account of an extremely abusive former spouse.
·She suffered [injuries] at the hands of her former spouse and a result of long abuse has memory problems and difficulties recounting dates and events correctly.
·Alevi Kurds are discriminated against in Turkey – her native village is all Kurdish in its ethnic composition but her family moved to Istanbul when she was young.
·Her life unravelled when she reached the age of [age] years. She was kidnapped and sexually abused by a man called [Mr A]. He was a Turkish Sunni Muslim and the applicant told him she was an Alevi Kurd to put him off but he abused her at his house in [his suburb] for a week.
·After this, the two families came together to discuss what had happened. [Mr A] wanted to marry the applicant and told her she belonged to him as though she was his possession.
·The applicant’s family was afraid of [Mr A’s] brother ‘[named]’ as he was a [rank] in the Turkish police, and threatened her family that if they tried to take her back, they would cause problems for they were Alevi Kurds.
·The applicant’s family could not go to the authorities as they feared the applicant would not be protected as she is a woman, and would also be discriminated against because she was also an Alevi Kurd.
·She married [Mr A] to avoid an honour dispute between the two families.
·The applicant suffered domestic violence at [Mr A’s] hands. She had two children and when they were older he would beat them too. The applicant on many occasions was badly beaten while trying to defend her children.
·The applicant was on occasions allowed to visit her family. Her father and sister told her they were considering converting to the Evangelical Protestant Christianity and suggested that she should also convert.
·While still in Turkey, the applicant attended a ‘house church’ with her family and would pray and light candles. However, the applicant was fearful of being baptised a Christian.
·On one occasion when her husband was drunk, he threatened the applicant and her children – warning her, that he will “kill her”.
·The applicant befriended her neighbour, called [Neighbour A] (also an Alevi Kurd) who had relatives in Antalya in a village where her husband and his family could not find her. [Neighbour A] and her husband decided to help the applicant and her children to flee and hide in Antalya, where she settled with [Neighbour A’s] relatives and received a lot of support from the Kurdish Association.
·The applicant started to practice Christianity in Antalya, but too fearful of Muslim extremists to convert officially. [Neighbour A’s] relatives had also converted from Alevi to practising Christians.
·On or about 2009, a Kurdish Association lawyer encouraged the applicant to divorce, which was granted. The applicant thereafter changed her address because she was scared her former husband might find her.
·The divorce certificate[3] has an error as it lists both parties living in the same place. The applicant’s children tried recently to amend the certificate but were told that its amendment was not possible as the judge who was responsible for its certification had retired.
[3] See Department File, Folio [90]-[91]
·Sometime later, the applicant was walking to a shop and she saw [Mr A] – located her in Antalya and tried to persuade her to reconcile with him. When the applicant refused, he beat her and she woke up in hospital. The applicant was told that he ([Mr A]) nearly beat her to death, and that believing she was dead, left her there. The applicant spent 2-3 days in hospital before moving to another friend’s place fearing [Mr A] would know where she lived.
·Police took some details from the applicant and her neighbours but did not follow up with an investigation.
·The Kurdish Association came to visit the applicant and decided she should leave Turkey for her own safety. The applicant told them that she had a sister in [Country 1] and one in Australia. The applicant preferred Australia because in [Country 1], her former husband had relatives.
·Kurdish Association arranged for her passport and visa which took a year to issue the document.
·During this time, the applicant was supported by the Kurdish Association.
·After the applicant arrived in Australia, she telephoned her children in Turkey – her son told her that [Mr A] had found him and asked about the applicant’s whereabouts. The son told him that he did not know where the applicant is and [Mr A] became very angry and told him that he would kill her when he found her whereabouts.
·The applicant was baptised in [a named church] [in] September 2014.[4]
·
The applicant fears domestic violence and being killed by her former spouse if she returns to Turkey. The authorities in Turkey do not protect women in such situations and she cannot relocate.

EVIDENCE AT THE HEARING
[4] Ibid, Department File, see Folio [92}
The applicant is [an age] year old divorced female born in [Town 1], Erzincan, Turkey. She has resided in her birthplace as well as in Istanbul and Antalya. She considers her ethnicity as Kurdish and her religion as Christian. The applicant understands Turkish and Kurmanji[5] (a Kurdish dialect). She has two adult children living in Antalya, Turkey.
[5] CIS2F827D91265: ‘DFAT Thematic Report, Kurds in Turkey, 2 June 2014, DFAT, 2 June 2014
The applicant told the Tribunal that her life from a very young age was full of difficulties. In her recollection of the past, the applicant spoke about her family being forced to relocate from their village to the larger city of Istanbul because of ethnic tensions between Kurds and the Turks. However, the applicant’s details of this relocation were difficult to comprehend because of her difficulty in remembering precise details. Nevertheless, the Tribunal understood from what was said by the applicant that the family [at that time] was experiencing many difficulties because of their ethnicity and religion as ‘Alevis’ and the move to a large city provided some secure living because of its diversity in population numbers.
While still living in her village the applicant recalled that she attended primary school for no more than three years. Thereafter, the Tribunal was told she did not go to school (even when in Istanbul) because “her parents did not choose to send her.” Having her school years cut short by her parents, the applicant began working in the agricultural sector as a ‘farm employee’ and continued to do so until her marriage to her former husband, [Mr A].
The applicant told the Tribunal that her mother and father are deceased. The only direct family that she has living in Turkey is her two now – adult children – a boy and a girl. Both live in the Antalya. Both children are independent and living on their own.
The Tribunal asked the applicant if her children had experienced any problems with their father since the applicant’s divorce. Her response to the Tribunal was that her former husband is a constant concern for her children. His family has relatives in the Turkish police force and the whereabouts of the children can be easily ascertained if her former wanted to locate them. So the children rarely remain in the same home for a considerable period of time and tend to move residences often. The applicant stated that her children had converted to Christianity whereas their father is a Sunni Muslim and she was concerned of what might happen if her former husband found out about this. However, the applicant provided no other details concerning her children’s conversion to Christianity except to tell the Tribunal that “the children were raised according to her beliefs….”
The applicant was asked to provide details concerning her relationship with her former husband. The applicant recalled that her life began being conscious of her ethnicity as a ‘Alevi Kurd’. She was about [age] years of age – “very young” when she came to the attention of her former husband who was in his twenties and was “ready to get married” (as the applicant described him). The applicant then told the Tribunal that her husband with the help of “neighbours” successfully abducted her and following her abduction took her to a relative’s house (husband’s) and she remained there for a week. Throughout her incarceration in this relative’s house the applicant “beg to be allowed to go home…” but her pleas were ignored by her husband and her captors.
The Tribunal asked the applicant to recall (if she was able) any details as far as it concerned her forced incarceration. The applicant recalled that in that week of captivity her (later to become) husband repeatedly forced himself upon her and engaged in repeated sexual acts which the applicant had no chance to resist because of fearing for her life. Recalling the past caused the applicant to break out into tears before the Tribunal. Her recollection ended by the applicant telling the Tribunal that what she remembered was her husband telling her “either you become mine, or I will kill you…”
A period of time ensued and the applicant’s parents were called and a meeting was called to discuss a proposal of marriage. The applicant told the Tribunal that her parents did not approve of her husband or of his actions but could do very little because her husband’s family were Sunni Muslims and had extensive networks of influential contacts in Istanbul and would cause the family many problems. Hence, the family (parents) agreed to her marriage to her husband. Moreover, matters became even more difficult for the applicant and family because the applicant discovered she was “pregnant” also and being unmarried and having a child would bring unwanted shame on the entire family.
The applicant and her husband married. The applicant could not recall any details of her marriage except to say that the “marriage was legal…”
The Tribunal asked the applicant if she could describe her life with her former husband. The applicant recollected that “life from the beginning was hard” and “difficult” for her. In the early days of her marriage, she and her husband “lived with his mother”. Her husband, the Tribunal was told, was never friendly or kind. He always would refer to her as “…dirty Kurd…” never by her name and he would at times (more often than not) commit acts of violence against her person. After a considerable period of time, the applicant told the Tribunal she became mentally “traumatised” by the violence and not having anyone to help her, while also having the daily care of two underage children. What made matters more difficult for the applicant was the fact that when the children became old enough to understand what was occurring in the family they would seek to defend their mother (when beaten by the husband) resulting in them being physically beaten.
In this traumatic period, the applicant remembered that she was on the ‘rarest occasion’ to “visit her parents and family”. On such visits, the applicant told her parents her trials and tribulations but her parents told her that they were unable to assist her.
On or about 2009, the applicant through a friend (a Kurd) called “[Neighbour A]” decided to leave her husband and to commence divorce proceedings against citing abuse and family violence over a number of years as her reasons. Her friend, [Neighbour A] organised for the applicant and her children to relocate to Antalya and for lawyers from the Kurdish Association to organise matters as far as it concerned the applicant’s divorce.
As far as the divorce was concerned, the applicant told the Tribunal that her husband (initially) was not told about the divorce. The applicant went on to say that she “…did not know whether her former husband knew about the divorce…” She did say, that he did acknowledge her leaving him and wanting to live a ‘separate life.’
Then, the applicant referred to an ‘incident’ that occurred in 2013 while she was living in Antalya, when her former husband found her and proceeded in public to plead with her to reconcile with him. The wife told the Tribunal that she told her husband that the marriage had ended and that she had no desire to reconcile with him. In response, the applicant’s husband (the Tribunal was told) became enraged and proceeded to beat the applicant to the point that the applicant fainted and to this day remembers very little of the incident. She did however tell the Tribunal that ‘others’ intervened to stop her husband’s beatings but had not details except to say that she ‘woke up in hospital’. The applicant also recalled that “police’ did attend the scene of her beating (who were called by ‘others’ unknown to the applicant) but ‘nothing’ was done to her husband by the police.
The applicant explained to the Tribunal that in Turkey very little is done by the police when it concerns Turkish husband’s assaulting their wives. Indeed, the applicant expressed sincere fears on returning to Turkey because her husband had ‘links’ with the Turkish police. The applicant told the Tribunal, that her former husband’s brother was a police officer with some importance in the Turkish police and could locate her whereabouts if she was to return in the future to Turkey.
Claim that the applicant converted to Christianity

30. The Tribunal was told that while the applicant was living in Istanbul with her family, she had converted to Christianity. She claimed to be an ‘Evangelical Christian’. Her conversion to the Christianity was kept a ‘secret’ from her husband while their marriage lasted because he was Sunni Muslim and would not (according to the applicant) tolerate a wife who was a Christian.

The applicant was asked – how did she practice her religion? Her response was to tell the Tribunal that she would try to attend local house churches and pray there with likeminded Christians. However, the applicant conceded that her attendance was minimal and difficult to arrange because of her circumstances being married to an abusive and dominant husband who was a Sunni Muslim. That being the case in Turkey, when the applicant arrived in Australia, she told the Tribunal she willingly submitted to being baptised[6] and has attended a few prayer meetings and functions arranged by her local Anglican church. Her difficulty in speaking English, the Tribuanl was told had limited the frequency of her attendances at her church. In discussing her claim to being a ‘convert to Christianity’, the Tribunal asked the applicant to identify certain religious fundamentals of her Christian faith. The applicant (through the interpreter) proceeded to tell the Tribunal that “…Jesus Christ was the Son of God…” and that “Mariam” (Mary) was “his mother…” ‘Mary’ was the chosen one by God to give “virgin birth” to Jesus. The applicant also told the Tribunal that she reads the ‘Bible’ in its ‘Turkish language translation’. Finally, she told the Tribunal that her favourite biblical passage was the recollection of Jesus’ birth and how ‘Jesus’ the child was to the “…messenger of God” on earth. The applicant believed that if she was to return to Turkey, she would suffer danger from society in general and from the Turkish authorities because she had chosen to adopt Christianity as her religion.
[6] See Department File, Baptism Certificate Folio [92]
The applicant’s claim that she faced discrimination because she was an Alevi Kurd
The applicant was asked by the Tribuanl to explain how she, being ethnically an Alevi Kurd had suffered discrimination while living in Turkey. Her response was to say that when she was living in Istanbul in [1983] police gathered “…all Alevi Kurds and took them away for questioning…” Some Alevi Kurds, in the applicant’s opinion were “…tortured”.
The Tribunal asked the applicant – if she had been detained for questioning and tortured by the Turkish authorities in the period she claimed this was happening? In response, the applicant told the Tribunal she remembered “…dirty looks…” from unknown persons with the community and being very careful during the Muslim holy days of Ramadan.
The applicant was asked by the Tribunal did she have any political involvement with any Kurdish political group. The applicant’ response was “…No…”
What were the applicant’s fears, in the foreseeable future she was to return to Turkey?
The applicant told the Tribunal that if she was to return to Turkey her major fear was her former husband finding her whereabouts with his family contact within the Turkish police and beating her or even taking her life. The applicant did not have confidence in the Turkish authorities safeguarding her – being now a divorced woman with an Alevi Kurd ethnic background and a Christian convert. In the applicant’s opinion, her country, Turkey, offered no assistance to women.
The applicant believed there was not a place in Turkey that she could relocate and feel safe and at peace. Though, she could return and live with her children, she did not think that was appropriate first, her child had their own lives to live and second, her children’s whereabouts could be known to her former husband and their home would be the first place he would look for her.
The issue of credibility
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:
....care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted…
The Tribunal also accepts that “….if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]. However, the Handbook states at (paragraph [204]) that:
….The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts….
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing this, it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion of an applicant has not been made out (see, Randhawa v MILGEA (1994)52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994)34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998)86 FCR 547).
In general, the Tribunal found the applicant to be a credible witness.

FINDINGS AND REASONS

Assessment of the applicant’s claims
Is the applicant a refugee as is provided for in s.36 (2)(a) of the Act?

At the hearing, the applicant provided oral evidence that while she lived in Turkey; she had endured together with her family members’ societal discrimination and had encountered difficult instances throughout her life was not experienced by other Turkish citizens but particularly endured by her because of her ethnicity as a Kurdish Alevi woman who had also converted together with other members’ of her family to the ‘Christian faith.’ This difference of treatment of ways and means caused her not to feel a part of her community and was of the opinion that Turkey a country for her to live. Hence, the applicant was of the opinion that Australia owed her protection as a refugee. In presenting her case before the Tribunal, the applicant’s claims talked about a number of issues she considered fundamental to making her claim for refugee status.
First, she claimed that she had encountered discrimination in Turkey as an Alevi Kurd and that was the reason why her family and the applicant had relocated in Istanbul. The applicant also claimed that she had a ‘fear’ and ‘distrust’ of the Turkish authorities because of her ethnicity – as a ‘Kurd’ and because many male relatives had been ‘harmed’ during the 1980s. However, the applicant admitted to the Tribunal that she was not in any way involved politically with any Kurdish nationalist party organisation.
Second, she claimed to have converted from the Alevi faith to Evangelical Protestant Christianity. She also claimed that she was afraid to be baptised in Turkey – because she feared reprisals. The applicant made it clear that her family was very careful in not exhibiting their religious beliefs and prayers and meeting were done in what the applicant described as ‘house churches.’
Third, the applicant claimed that she also was of an Alevi background but provided very little information concerning this aspect of her claim but told the Tribunal that she had been an ‘Alevi’ who had ‘converted to Christianity.’ Her concerns were that she feared a reprisal against her if it was made known that she was an ‘Alevi’ who had willing ‘converted to Christianity.’ Nevertheless, the applicant’s information concerning this claim was very disjointed and in the very little evidence was provided to the Tribunal in order to assist it to properly assess the applicant’s claims of persecution or the fear of persecution if she was to return to Turkey.
Finally, the applicant claimed that her ethnicity coupled with the fact that she was an Alevi who had chosen Christianity as her religion and the fact that she was a woman who had divorced her Sunni Muslim husband placed her directly in harm’s way if she was to be returned to Turkey. She told the Tribunal, she was a woman – a divorced woman, who feared her former husband finding her (if she returned to Turkey through his family’s connections with the police) and causing her harm – even death. The applicant was of the opinion that the Turkish authorities would not and provide her with any protection or assistance because ‘women’ were much devalued as persons in Turkey.
FURTHER EVIDENCE PROVIDED BY THE APPLICANT AT THE HEARING
·The applicant provided a letter from [a named service] dated 1 October 2019 in the name of [a named] Consultant Psychiatrist concerning her present mental health and treatment for trauma caused by years of enduring violence in her home.[7]
[7] AAT File
COUNTRY INFORMATION – TURKEY
In considering whether the applicant faces a real chance of suffering persecution involving serious harm given her personal circumstances, the Tribunal has considered the following country information, drawn from the most recent DFAT Country Information Report on Turkey, and discussed with the applicant at the hearing:[8]
[8] DFAT Country Information Report, Turkey, 9 October 2018
Background
·Turkey has a population of approximately 80.8 million people.
- It is reported that between 70-75 per cent of the population is ethnically Turkish and around
19 per cent (approximately 15 million people) Kurdish.
·    The overwhelming majority of Turkish citizens are Muslim, with most (75-80 per cent) being
Sunni.
·    Estimates of the size of the Alevi population vary considerably. Some Alevi leaders estimate
that Alevis comprise between 25 to 31 per cent of the Turkish population (20 to 30 million);
             academic estimates suggest the number is closer to ten to 15 per cent (eight to 12 million).
·    Many Alevis are also Kurds, although estimated numbers again vary considerably (between
half a million and several million). DFAT understands that Kurdish Alevis are more likely to
             identify primarily as Alevi.
Political Situation
·    Following the June 2018 elections the ruling conservative Justice and Development Party
(AKP) holds 290 seats in the 600 seat Turkish parliament (Grand National Assembly). AKP
             governs in an electoral alliance with the far right Nationalist Movement Party (MHP), which
             holds 50 seats.
·    The left-wing Kurdish aligned People’s Democratic Party (HDP) holds 67 seats.
Security Situation
·    On 15 July 2016, elements of the Turkish military, likely aided by elements of the Gulen
movement, attempted a coup d’état against the government, deploying tanks in the streets of
             Istanbul and Ankara, bombing parliament and opening fire on protestors. At least 251 citizens
             and security personnel died in the fighting, and around 2,000 people were injured. The coup
             failed as most of the military remained loyal to the government.
·    In response to an extraordinary event in a democratic country, the government implemented
exceptional measures after suppressing the attempted coup. These measures included a
             state of emergency that remained in place until July 2018 and which gave the government
             enhanced powers.
·    Kurdish resistance to central rule in majority Kurdish areas has been a recurrent feature of
modern Turkish history. An insurgency led by the Kurdistan Workers’ Party (PKK) killed an
             estimated 40,000 people between 1984 and a ceasefire in 2013. The ceasefire collapsed in
             July 2015, leading to a resumption of security operations.
·    Since the collapse of the ceasefire, security forces have conducted operations in a number of
provinces in south-eastern Turkey. These operations have involved thousands of troops in
             infantry, artillery, and armoured land divisions, as well as the air force. The International Crisis
             Group (ICG) reported that, as of the end of September 2018, conflict since the end of the
             ceasefire had caused over 4,114 deaths of PKK militants, state security force members and non-   combatants. Clashes continued throughout late 2017 and early 2018.
Alevis
·    Alevism is a heterodox branch of Islam that emerged in the medieval period and incorporates
Shi’a, Sufi, Sunni and local traditions.
·    The Turkish state does not recognise Alevism as a separate religion and considers Alevis to
be Muslims. Cemevis (Alevi prayer halls) are not recognised as official places of worship and,
             unlike mosques, do not receive public funding to support their construction or maintenance.
·    While most Alevis regard their faith as a separate religion, some identify as Shi’a or Sunni or
see their Alevi identity predominantly in cultural rather than religious terms. Alevis are mostly
             secular, supporting strict separation of religion and politics. Alevis report they are generally
             able to conduct their religious ceremonies and celebrate their religious festivals without official
             interference.
·    Although the Alevi community suffered significant societal violence in the past, DFAT is not
aware of any instances of significant societal violence against the community in recent years.
             Like other religious minorities, Alevis have occasionally been the subject of negative portrayal
             in state media, and to low-level societal threats of violence.
·    DFAT assesses that Alevis face a low risk of official and societal discrimination. While they do
not enjoy the benefits of official recognition as a separate religion, they are generally able to
             worship freely and participate in most areas of Turkish life (including politics).
             Kurds
·    International and domestic observers have reported that the government’s response to both
the resumption of conflict in the south-east between the government and the PKK, and to the
             July 2016 attempted coup, have significantly affected the rights and freedoms of Kurds. In
             particular, security operations since 2015 have resulted in significant hardship for local
             residents in the south-east. OHCHR reports in 2017 and 2018 detailed extensive human
             rights violations arising from the conflict, including killings, torture, violence against women,
             excessive use of force, destruction of housing and cultural heritage, prevention of access to
             emergency medical care, safe water and livelihoods, and severe restrictions on freedom of
             expression.
·    The government has used state of emergency powers to target a wide range of Kurdish
individuals, journalists, politicians and political activists, and civil society organisations
             accused of supporting the PKK.
·    One domestic human rights group reported in January 2018 that 31 per cent of all people
arrested in government operations since October 2016 were allegedly associated with
             Kurdish or leftist groups.
·    Kurds in western Turkey do not face the same risk of conflict-related violence as those in the
south-east. Many Kurds who are not politically active, and those who support the AKP, are
             integrated into Turkish society, identify with the Turkish nation, and live their lives in a normal
             fashion. Human rights observers report, however, that some Kurds in western Turkey are
             reluctant to disclose their Kurdish identity, including through speaking Kurdish in public, for
             fear of provoking a violent response.
·    Notwithstanding government efforts to wind back discriminatory restrictions on the public
expression of minority identity, DFAT assesses that Kurds in Turkey face both official and
             societal discrimination based on their ethnicity. The extent and form of this discrimination
             depends on geographical location and personal circumstance. Those residing in the southeast,
             Kurdish women and those active (or perceived to be active) in Kurdish political or civil
             society organisations are at higher risk than men and those who are not politically active or
             who support the AKP.
Religion
· Article 2 of the Constitution defines Turkey as a secular state. Article 10 states that all individuals are equal before the law regardless of their philosophical belief, religion, or sect; Article 15 states that no one may be compelled to reveal his or her religion; and Article 24 guarantees the right to freedom of conscience, religious belief and conviction. The state has traditionally interpreted secularism to require state control over religious communities, including their practices and houses of worship. The Diyanet manages the practice of Islam (see also Education), while the General Directorate for Foundations (Vakiflar) manages all other religions.
·    The government does not maintain population statistics based on religious identity. Observers concur, however, that the overwhelming majority of Turkish citizens are Muslim, with most (75-80 per cent) being Sunni. The Shi’a Ja’fari community reports that approximately three million Shi’a live in Turkey, predominantly in the eastern provinces. Up to 500,000 Alawites reportedly live in the southern regions neighbouring Syria, particularly Hatay province (this number does not include Syrian Alawite refugees who have fled to Turkey since 2011). Relations in Turkey between Muslim communities (Sunni and non-Sunni) have generally been harmonious, without the sectarian divides experienced in other countries. Some community leaders have expressed concern that tensions between the Turkish and Syrian governments over the Syrian civil war, combined with hostile rhetoric, may lead to increased tension between Sunnis and Alawites in particular. This concern has not been realised to date. President Erdogan publicly blamed the Alawite Syrian regime for a double car bombing in Hatay in May 2013 that killed at least 43 and wounded many more. DFAT is not aware of any recent cases in which tensions over Syria have led to significant incidents of sectarian violence between Sunni and non-Sunni Muslims. DFAT assesses that non-Sunni Muslims (excluding Alevis) do not face significant official or societal discrimination on the grounds of religion.
·    Turkey’s non-Muslim religious communities are small. There are fewer than 150,000 Christians across various denominations, the largest of which are Armenian and Greek Orthodox, Syriac Christians, Jehovah’s Witnesses, and Protestants. The Jewish community numbers fewer than 20,000. Small Baha’i and Yazidi communities live in Turkey, although their numbers are unclear.
Registered Religious groups (The ‘Lausanne Minorities’)
·    The Treaty of Lausanne (1923), which formalised the break-up of the Ottoman Empire and laid the foundation for modern Turkey, guarantees the rights of ‘non-Muslim minorities’. The government has traditionally interpreted this phrase as referring solely to the three major religious minorities in Turkey at the time, which were the Armenian Apostolic Orthodox Christians, Jews, and Greek Orthodox Christians (the ‘Lausanne minorities’). The Lausanne minorities, whose populations have all decreased significantly through emigration since 1923, reside primarily in Istanbul and other major urban centres in western Turkey. They enjoy certain rights, including the right to maintain existing religious foundations, build new houses of worship, and establish and run religious schools. The government has contributed funding to the upkeep or restoration of some minority properties, including the Greek Orthodox Sumela Monastery currently under renovation. The Lausanne minorities report that they are able to worship freely. The government does not, however, recognise the leadership or administrative structure of Lausanne minorities (such as the Christian patriarchates or chief rabbinate) as legal entities, which prevents them from buying or holding title to property, and from pressing claims in court. The Lausanne minorities (and other religious minority communities) rely on independent foundations with separate governing boards to hold and control individual religious properties. These foundations have reportedly been unable to renew the membership of their governing boards because the government has not promulgated new regulations since repealing previous rules in 2013.
·    DFAT is not aware of any recent significant incidents of violence against members of Lausanne minority communities or properties. Community representatives have expressed concern, however, about negative speech in the state media, which tends to peak at times of heightened tension between Turkey and Greece, Armenia, or Israel. Where Lausanne minorities have received threats, the government has provided security protection to their houses of worship, particularly synagogues.
·    The state expropriated a significant amount of property from Lausanne minority communities (and other religious minorities) in the early years of the Turkish Republic. Since 2001, and especially since a 2011 governmental decree, the government has returned more than 1,000 properties valued at more than USD 1 billion, and paid compensation. The process continues, and communities have complained about delays or denials: by some counts, only 20 to 25 per cent of expropriated properties have been returned or compensated to date. The communities have also expressed concern that the government has characterised return of the properties as a magnanimous gesture, rather than as a right of equal citizenship. The 2011 decree does not apply to other religious minorities, nor to properties seized before 1936.
· No official restriction prevents members of Lausanne minorities (or other religious minorities) gaining public sector employment or promotion: Article 70 of the Constitution specifically states that every Turk has the right to enter public service, and no criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service. Notwithstanding, some non-Muslims claim to have been denied government employment for not including a religious identity or for listing an identity other than Muslim on employment applications. Community representatives have commented that it is rare to see religious minority members in senior government roles.
· In August 2013, the government confirmed the existence of a secret categorisation system for Lausanne minorities that had been in existence since 1923. The system used information taken from Ottoman-era documents and was used by the Education Ministry to ensure that only members of Lausanne minorities could register their children at minority schools. Although opposition politicians criticised the system as being in breach of the Constitution, officials defended it as helping ensure the protection of the rights of the Lausanne minorities. It is unclear whether the categorisation system remains in use.
·    DFAT assesses that, although their rights are constitutionally guaranteed, members of the Lausanne minorities face a low risk of official discrimination. Notwithstanding a strict constitutional commitment to secularism, Turkish laws and long-standing practices work to the benefit of the majority population, including in relation to public sector employment opportunities. Members of Lausanne minorities face a low risk of societal discrimination, which may increase during periods when external factors come into play.
Other unregistered religious groups
·    Members of unrecognised religious groups (including, but not limited to, Baha’i, Yazidis, and Christian groups such as the Jehovah’s Witnesses) do not enjoy the same rights as the Lausanne minorities in relation to operating schools, officially registering their places of worship, or reclaiming properties expropriated by the state (see Recognised Religious Groups (The ‘Lausanne Minorities’)). Unrecognised religious groups are generally able to conduct religious services without official interference. Their access to public sector employment and promotion is comparable to that of members of Lausanne minorities. DFAT is aware of occasional reports of vandalism against properties owned by unrecognised religious groups, and of threats against clergy via text messages, social media postings, and emails. Police have provided protection in response to such threats, although some communities argue that police responses are not always adequate.
·    DFAT assesses that members of unrecognised religious groups face a low risk of official and societal discrimination, comparable to that of the Lausanne minorities and Alevis.
The position of women in Turkey
·Article 10 of the Constitution states that all individuals are equal without any discrimination before the law, regardless of sex. A May 2004 amendment to Article 10 added a provision stating that women and men have equal rights, and that the state has the obligation to ensure that this equality exists in practice. Women enjoy considerable legal protection in many areas, including on personal safety, participation in the workforce, and mandatory schooling for girls. Marriage, divorce, inheritance, and child custody are regulated by a civil law code that respects gender equality (see Personal Status Laws). Twelve per cent of CEOs in Turkey are female, compared to the OECD average of five per cent. Successive Turkish governments have repealed and reformed provisions of the criminal and civil law codes that discriminated against women to bring them into line with European standards. The AKP government’s removal of headscarf bans in universities and for members of the bureaucracy and the police force has removed an obstacle that previously prevented women and girls from conservative families from gaining access to higher education and participating in public life. The proliferation of internet and social media use has raised the profile and general awareness of issues surrounding gender equality.
·While women participate in all areas of Turkish society, including government, business and civil society, societal, cultural and religious barriers continue to limit that participation. In its July 2016 response to the seventh periodic review of Turkey, CEDAW expressed concern about the persistence of deep-rooted discriminatory stereotypes concerning the roles and responsibilities of women and men in the family and in society. These roles emphasise 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 with concern that patriarchal attitudes were on the rise within state authorities and society, and that discussion focusing on vaguely defined concepts of ‘gender equity’ or ‘gender justice’ openly and increasingly undermined gender equality. Of particular concern was several discriminatory and demeaning statements by senior government figures about women who do not adhere to traditional roles. In June 2016 President Erdogan told a women’s association that a woman who rejected motherhood and abandoned housework was incomplete, however successful her working life. In July 2014, the then-deputy prime minister said in a speech that women should not laugh loudly in public.
·The June 2018 parliamentary elections saw voters elect 103 women to the 600-seat parliament. While this represented a record number of women in a Turkish parliament, it accounted for only 17.1 per cent of seats overall, far below parity, the global average of 22 per cent, and the 33 per cent of seats that women’s rights advocates had called for. Thirty-three of Turkey’s 81 provinces did not elect any female representatives. Two women currently serve in the 16-strong cabinet. The World Economic Forum’s 2016 Global Gender Gap index rated Turkey 130th out of 141 countries. Turkey’s 2017 female labour force participation of 32.3 per cent is the lowest of any European country.
·Article 41 of the Constitution states that the family is the foundation of Turkish society, and is based on equality between the spouses. The state shall take the necessary measures and establish the necessary organisation to ensure the peace and welfare of the family, especially where the protection of the mother and children is involved. Women’s rights advocates have expressed concern that the government has promoted policies and institutional arrangements that promote perceived ‘family interests’ at the expense of women’s rights: the government replaced the Ministry of Women and Families with a newly established Ministry of Family and Social Policy in 2011. This Ministry was itself merged after the June 2018 election, and is now the Ministry of Labour, Social Services, and Family. In May 2016, a parliamentary commission called ‘Protecting the Integrity of the Family’ released a draft report with several recommendations aimed at reducing Turkey’s growing divorce rate. Women’s rights advocates criticised many of the recommendations, including one to limit the time period for alimony: the advocates argued that this would potentially put women leaving their abusive husbands at risk of severe economic hardship. Advocates also criticised a proposal to allow a man who had had sex with a girl aged between 15 and 18 to avoid criminal charges if he married the girl and the marriage lasted five years without physical violence (see Personal Status Laws). The government withdrew a draft bill on the latter proposal in November 2016, following widespread public protests.
·While welcoming the government’s efforts to promote gender equality through legislative reform, CEDAW expressed concern that certain discriminatory legislation remained in place. CEDAW highlighted in particular Article 287 of the Criminal Code on genital examinations, which allows a judge or prosecutor to authorise virginity testing, even if the subject does not consent to it. CEDAW also expressed concern over Article 13 of the Regulation for the Implementation of Uterine Evacuation and Sterilization Services based on the Law on Population Planning (1983), according to which a married woman can terminate her pregnancy only with spousal authorisation.
·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 per cent of women surveyed stated they had experienced physical or psychological violence from their partners or family, and 70 per cent of women reported having been physically assaulted by partners, family members or neighbours. While severe cases of violence against women attract media interest and public condemnation, most people in Turkey accept lower level violence, such as a man slapping his wife in public, as a private affair. The Law on the Prevention of Violence against Women and the Protection of the Family (2012) does not specifically criminalise domestic violence. Women’s rights advocates report that protection orders are insufficiently monitored and rarely enforced. Courts often hand down lenient judgements to perpetrators of sexual violence, including those convicted of raping minor girls, and sentences are often reduced if the defendant demonstrates ‘good behaviour’ during trials. 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. Legal provisions for the establishment of violence prevention and monitoring centres call for a state-funded women’s shelter for every 100,000 persons to offer economic, psychological, legal and social assistance to women seeking to escape violent relationships. As of December 2015, however, the Ministry of Families and Social Policies reported only 133 women’s shelters located nationwide, 101 run by the central government and 32 by local administrations. The number of domestic violence shelters is insufficient to meet demand, and they are not well located. Ankara’s five million people have only three shelters, while many cities with populations over 100,000 have no shelters. CEDAW notes that shelters often seek to reconcile women with their husbands or compel them to part with their children, and that their rules and procedures limit their accessibility and utility to survivors of violence. The government operates a nationwide domestic violence hotline, but NGOs claim the quality of service is inadequate for victims of domestic abuse.
·The July 2016 CEDAW report expressed concern about the situation of Kurdish women, particularly those affected by the resurgence of violence between the security forces and the PKK in the south-east since in 2015 (see Security Situation). CEDAW noted that women displaced from their homes face particular difficulties, including access to housing, education, and health services, and an increased risk of sexual and other violence. CEDAW documented allegations of harassment, sexual violence, and threats against Kurdish women. Security forces have reportedly shared naked pictures of raped or killed civilian and militant women on social media as a means of intimidation. Community representatives in south-eastern Turkey claim that trustees appointed to replace elected representatives (see Political System) have closed women’s centres, particularly in municipalities most affected by security operations in early 2016. Many centres had assisted women and children suffering domestic violence, and had promoted women’s engagement in social and political life. According to NGOs, the closure of the centres has reduced the likelihood that Kurdish women will seek assistance in domestic violence situations. They claim that Kurdish women, fearing police abuse and public shaming, are reluctant to discuss domestic violence outside their community. They also reportedly fear that police involvement will further increase the incarceration of Kurdish men without resolving the underlying cultural, social, and economic causes of violence. NGOs claim police confiscated confidential personal information from closed centres and stored it at an undisclosed location, potentially endangering the privacy and safety of thousands of centre users and their families.
·No reliable statistics exist on the prevalence of ‘honour killings’ in Turkey. Honour killings are defined as a murder committed or ordered to punish a family member who is believed to have damaged the family’s reputation. Actions considered damaging can include extramarital sex, refusal of an arranged marriage, choosing one’s own spouse without family approval, becoming a victim of rape, homosexual acts (see LGBTI (Lesbian, Gay, Bisexual, Transgender, Intersex)), or liberal behaviour and dress. Women’s advocacy groups report that honour killings are particularly common among conservative families in the south-east or among families of migrants from the south-east living in large cities. The July 2016 CEDAW report expressed concern that government efforts to change public perceptions of the concept of ‘honour’ had been insufficient. Individuals convicted of honour killings can be sentenced to life imprisonment, but in practice courts often reduce sentences due to mitigating factors, including anger and passion caused by the victim’s ‘misbehaviour’. Human rights observers report a degree of societal acceptance that an ‘honour’ violation could justify relatives killing women. Family members sometimes pressure girls to commit suicide to protect the family’s honour.
·DFAT assesses that most Turkish women face a risk of societal discrimination that will range from low to moderate dependant on geographic location and socio-economic level. Turkish women face a moderate risk of gender-based violence. Kurdish women residing in conflict-affected areas in the south-east face an additional high risk of conflict-related violence. Most women in Turkey face a low risk of official discrimination in the form of legislation that acts to restrict their participation in the workforce and community.

Indeed, the country information Kurds, Alevis and Christians living in Turkey does describe some discrimination is encountered and experienced as the applicant has claimed before the Tribunal in her evidence. However, the applicant’s evidence and responses to the Tribunal’s questions concerning her claims was very shallow and lacked the detail one would expect of a person who had suffered discrimination based on race, religion or political opinion. In particular, the Tribunal in its questioning of the applicant concerning her fears as far as they attached to her ethnicity as a ‘Alevi Kurd’, her response was to tell the Tribunal that issues in the 1980s forced her family to leave their traditional lands and to re-settle in major city of Istanbul. The applicant recalled no major issues between her family and the Turkish authorities while living in Istanbul only to recall that some of her male relatives “had been harmed by the authorities in the 1980s…” However, the applicant’s details of this ‘harm’ were very limited and lacking in sufficient detail. Nevertheless, the Tribunal did ask the applicant did she have any political involvement as far as it concerned her Kurdish ethnicity and her response was that she understood the Kurdish problems but had not participated in any political demonstrations or activities trying to highlight the human rights issues of her people. Therefore, the claim that the applicant would be in some way harmed or singled out by the Turkish authorities because of her ethnicity as a ‘Kurd’ is not credible.
Also, the applicant claimed fears of being mistreated as an Alevi. It is reported by DFAT in its country information that the Turkish state does not recognise ‘Alevism’ as a separate religion and considers Alevis to be Muslims. The same report (as noted above) reports that although most of the Alevi community suffered significant societal violence in the past, DFAT was not aware of any instances of significant societal violence against this community in recent years. Like other religious minorities in Turkey, Alevis have occasionally been the subject of negative portrayal in the state-dominated media, and to low-level societal threats of violence. However, DFAT concludes that Alevis face a low risk of official discrimination even though, they do not enjoy the benefits of official state recognition as a separate religion, they are (in DFAT’s opinion) able to worship freely and participate in most areas of Turkish life. The applicant admitted in evidence before the Tribunal and in her written claims that both her family, and including herself had abandoned ‘Alevism’ and had become committed Christians. The applicant provided no substantial evidence that her Alevi past might cause her injury or personal harm and it should be pointed out that the country information presents a very favourable set of circumstances for Alevis in Turkey. The Tribunal concludes that if the applicant was to return to Turkey in the reasonably foreseeable future, she would not face a real risk of being persecuted for her past beliefs in Alevism.
In regards to the applicant’s conversion to Christianity, the Tribunal accepts her to have converted from an Alevi Kurd to being a Christian Kurd. Indeed, the applicant in Protection visa interview stated that “she did not experience any problems with the authorities when she had to change her religious status on her personal ID – from ‘Muslim’ to ‘Christian.’ The applicant’s entire family were ‘Christians’ and ‘practiced in Turkey’ by going to house churches and lighting candles and reading the Bible. In her time in Turkey, the applicant did not experience any risk of harm or actual harm because of her religious beliefs. The Tribuanl concludes that if the applicant was to return to Turkey in the reasonably foreseeable future she would not face the real risk of being persecuted for having converted to Christianity.
Overall, it is a fair conclusion to arrive at that if the applicant was to return to Turkey she would face moderate levels of official discrimination. The Tribunal’s conclusions are influenced by the applicant’s own evidence and admissions. The Tribunal accepts that she is an ethnic Kurd, former follower (together with her family) of Alevism and a Christian. Her actions in the past while in Turkey and while here in Australia, do not present her with any particular risks if she was to return to Turkey in the reasonably foreseeable future. The Tribunal sees no real risks targeting the applicant originating from society or the Turkish state. The applicant had lived and worked in Turkey for most of her life and did not present to the Tribunal any particular immediate issues that would have caused her to exit Turkey for reasons that usually dominate the plight of refugees from the Middle East region. Moreover, she had no identified issues with the Turkish authorities who might have precluded her from leaving or entering the country as she wished. That being the case, the applicant in her evidence before the Tribunal and in her submissions did not specifically identify a well-founded fear of persecution as it is set out and defined in s.5J (1)(a), (b), or (c) of the Act and therefore the tribunal does not find that the applicant is a refugee.
For the reasons given above the Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the refugee criterion set out in s.36(2)(a) of the Act.

COMPLEMENTARY PROTECTION

The issue before the Tribunal is whether the applicant is entitled to complementary protection.
The Tribunal considers whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant and his family (as non-citizens) being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
Significant harm will occur if:
- The person 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
- The person will be subjected to cruel or inhuman treatment or punishment; or
- The person will be subject to degrading treatment or punishment.
However, there is taken not to be a real risk that a person will suffer significant harm in a country if:
·It would be reasonable for the person to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or
·The person could obtain, from the authority of the country, protection such that there would not be a real risk that the person will suffer significant harm; or

·The real risk is one faced by the population of the country generally ad is not faced by the person personally.
The Tribunal finds that the applicant if she was to return to Jordan in the reasonably foreseeable future will fall victim to either being arbitrarily deprived of her life, subjected to torture, cruel and inhuman punishment committed upon her by the applicant’s former Sunni Muslim husband.
The Tribunal at the hearing was told that the applicant had instituted on her own initiative with the help of a Kurdish women’s association her divorce from her husband who was a Sunni Muslim Turk. The applicant told the Tribunal that her former husband would have known about the divorce through his family contacts (his brother) in the Turkish police. The applicant in her evidence claimed that her husband during her marriage had repeatedly committed acts of violence on her without reason and would also commit violent acts on her children because of their protestations against him for having witnessed his violent acts on the applicant –their mother. The issue of violence became so difficult for the applicant and her children that caused her through Kurdish friends and with their assistance to seek a divorce. In 2009, with the help of these friends and with the assistance of lawyers the applicant secured her divorce from her husband as allowed for by Turkish law. Thereafter, the applicant lived in relative peace in Antalya at an address she believed would not be discovered by her former husband.
However, despite that anonymity the applicant told the Tribunal that her former husband was able to find her in Antalya. As the applicant recalled in her evidence at the hearing, some time had passed (the applicant was not clear as to when exactly) when, while walking In the street near her home, she was confronted by her former husband. After a considerable period of discussion between the two, the former husband pleading for her to reconcile and to return to the matrimonial home, the applicant refused. Encountering the wife’s refusal, the applicant told the Tribunal (from what she could remember) her former husband ‘man-handled her’ and proceeded to beat her in public until she lost all consciousness.
The next day, from what the applicant remembered, she awoke in the local hospital. The Tribunal was told that the applicant spent two or three days in hospital. The applicant also remembered that the local police attended the scene of her beating, took details but no criminal proceedings were initiated against her former husband [Mr A]. When asked by the Tribunal – how did her former husband discover her actual whereabouts, the applicant told the Tribunal that her husband had a brother in the police and it was possible that his brother would have checked records and had given ‘her address in Antalya’ to him. Following this incident, persons from the Kurdish Association visited the applicant and made arrangements for her to leave Turkey.
After the applicant had arrived in Australia, she received a telephone call from her children in Turkey (from her son, in particular) telling her that her former husband, [Mr A] had approached them and asked them the whereabouts of the applicant. The former husband was told that ‘the children’ did not know the whereabouts of the mother. In response, the husband became agitated and angry, and warned that if ‘he would kill her if he found her whereabouts.’
Having received the warnings amounting to threats from her former husband through her children, returning the applicant to an uncertain environment in which her protection could not be guaranteed by instruments of the law to which her husband may have a direct influence in determining her whereabouts and whether they do provide her with protection may not in reality provide her with protection from a possible kidnapping or even death is significant harm in the opinion of the Tribunal.
The Tribunal gives consideration as to whether there is cruel and inhuman treatment or punishment and degrading treatment by the applicant’s former husband, society at large and elements in the Turkish police which may be influenced or associated with the applicant’s former husband which provided him with a degree of ‘immunity’ from being prosecuted for the violent acts he committed on the applicant in public prior to the applicant leaving Turkey for Australia.
The Tribunal noted the DFAT country information which reported that though Article 10 of the Turkish Constitution stated that all individuals are equal without ant discrimination before the law, regardless of sex and a further amendment to the Constitution in May 2004 to the same Article added the provision that women and men have equal rights and that the state has the obligation to ensure that this equality exists in practice – gender-based and family violence is still widespread in Turkey in both urban and rural areas. Moreover, DFAT reports that research undertaken by the Ministry of Family and Social Policies, 86 percent of women surveyed stated they had experienced physical and psychological violence from their partners or family.[9] The Tribunal also noted DFAT’s description of the Law on the Prevention of Violence against Women and the Protection of the Family (2012) as not specifically criminalising domestic violence. What was an eye-opener description of modern Turkish societal attitude on women was DFAT’s report that ‘…most people in Turkey accept lower level violence …as a private affair…’[10] This, in the opinion of the Tribunal, is not an appropriate environment to consider ‘safe’ or ‘secure’ for an applicant who has encountered cruel and inhumane treatment and punishment inflicted upon her former husband (with connections in the police through family members) appropriately secure for her to return to at some future date.
[9] DFAT Country Information Report, Turkey, 9 October 2018
[10] ibid
Cruel and inhuman treatment or punishment means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or pain or suffering, whether physical or mental, is intentionally inflicted on a person so long, as in the circumstance, the act or omission could reasonably be regarded as cruel and inhumane in nature.
The Tribunal is concerned that the applicant faces a life upon return to anywhere in Turkey where she has the prospect of being a victim of crime and neglect by the Turkish state.
It is clear to the Tribunal that regardless of the Turkish state’s constitutional and legal maturity as far as it concerns the rights and status of women in recent years, elements prevail within Turkish society of considering Turkey a patriarchal society which allows violence against women to be tolerated and when inflicted dealt with in less stringent ways one would expect in proper liberal and democratic society where the rule of law prevails over any attitude or set of values.
It is clear to the Tribunal that women can and are in many circumstances treated differently in Turkey – especially when the issue of domestic violence is involved. The applicant was a vulnerable Kurdish woman with limited education and social standing and this increases the concerns of the Tribunal with regards to whether the applicant would be provided with significant and effective protection from the Turkish authorities if she required it in order to keep at bay any real threats arising from the applicant’s former Sunni Muslim husband. The Tribunal was told that the applicant had little contact with society and her help was only provided by a Kurdish women’s association. Her former husband, on the other hand, had a brother in the Turkish police (ranked officer) who could provide him with information concerning the applicant’s whereabouts if need this information and the applicant feared that that was the case when her former husband found her in Antalya.
The country information available on Turkey and the issue of women makes it clear that ‘most Turkish women face a risk of societal discrimination’ and that ‘will range from low to moderate dependant on geographic location and socio-economic level.’[11] It is further reported that ‘Turkish women face a moderate risk of gender-based violence...’[12] the applicant’s socio –economic level which was that of a person who worked in the fields with limited education and an ethnic Kurd background provides a social and ethnic stigma which could amount to inhuman treatment or punishment, where acts or omissions by which severe pain and suffering, whether physical or mental, is intentionally inflicted on the applicant.
[11] Ibid
[12] ibid
In this, the Tribunal gives mind to the fact that the applicant has displayed serious fears and concerns about whether she would be able to resist her estranged husband’s attacks on her if and when she returned to Turkey. The Tribunal also notes that any support the applicant would expect from her immediate family would be minimal even if she returned to Antalya or Istanbul. They did not provide her with help in the past and would be incapable of doing so in the future. She would face difficulties accessing the police, which might display an indifference to her plight and concerns because of the corrupt influence of her husband’ brother intervening to ensure that the issue between the applicant and her former husband be considered ‘traditionally’ ‘domestic’ or a ‘family issue’.
The cumulative effects of these potential problems leads the Tribunal to conclude that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is the real risk that she will suffer significant harm: s.36(2)(aa) (under the “complementary criterion”)
‘Significant harm’ for these purposes is exhaustively defined in s.36 (2A): s.5(1) of the Act. It includes a situation where a person will suffer significant harm if he or she will be subjected to inhuman treatment. The Tribunal finds that this provision is applicable here. The type of criminality and harm described above would be intentional and aimed at the applicant should it occur. It is sufficiently prevalent in Turkey to pose a real risk and risk is exacerbated by the applicant’s lack of societal influence, position and funds. The applicant’s position is further exacerbated and made difficult by the fact that her former husband has the means and his disposal to locate and inflict his will upon the applicant. Serious assaults including grievous bodily harm are a possibility. Kidnapping of the applicant and holding her in captivity against her will is another possibility. The applicant might well – in a personal sense – be vulnerable to some or all of these crimes, and there is a real risk that she will suffer significant harm. This risk would exist in all the various areas of the country and because of the issues with the police, the Tribunal has outlined that the applicant could not obtain, from any authority of the country, protection such that there would not be a real risk that the person will suffer significant harm. The real risk is one faced by the applicant personally. The Tribunal also does not find that there is a possibility of avoiding the harm described by depending on family assistance.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the complementary protection criterion set out in s.36(2)(aa) of the Act.

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Peter Vlahos
Member

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

[2019] AATA 6815

30 October 2019

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