1609883 (Refugee)

[2019] AATA 4779

1609883 (Refugee) [2019] AATA 4779 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609883

COUNTRY OF REFERENCE:                  Turkey

MEMBER:Christopher Smolicz

DATE:7 June 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 07 June 2019 at 3:56pm

CATCHWORDS
REFUGEE – protection visa – Turkey – ethnicity – Kurdish political membership, opinion and activity – government actions against groups and individuals – fear of persecution well founded – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations (Cth), Schedule 2

CASES

VSAI v MIMIA [2004] FCA 1602

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Turkey, applied for the visa on 12 December 2014 and the delegate refused to grant the visa on 10 June 2016.

3. The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

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

8. 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.

9. 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’).

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

    Issue

11. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds because:

    ·     of his Kurdish ethnicity

    ·     he is a Kurdish political activist

    ·     his relatives have links to the Kurdistan Workers Party (PKK) and other banned Kurdish political parties

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The applicant’s factual claims and the Tribunal’s findings

13. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview and statements of claim and submissions dated 7 May 2019.

14. The applicant presented in a manner the Tribunal perceived to be truthful and credible, and his evidence was consistent with the country information applicable to his particular circumstances which are detailed below. The Tribunal has decided to wholly accept the applicant’s evidence.

15. The applicant is a [age]-year-old Kurdish male born in [Town 1], Gaziantep Province, Turkey. He said he was not religious and described himself as an atheist.

16. He undertook compulsory military service from August 2004 to November 2005. He arrived in Australia [in] November 2014 as the holder of a [temporary] visa which was valid until 15 March 2017.

17. The applicant claims that he has experienced a range of abuse and discrimination from society and the authorities because of his Kurdish ethnicity.

18. He claims to have been singled out by the authorities because his uncles have supported the PKK and he is imputed to have links with the party.

19. His village,[Village 1] (in Kurdish [Alternative name]), is known as a ‘terrorist village’ due to three other families having ties with the PKK. At the hearing the applicant was able to explain that his village was located next to [location]. He explained that PKK fighters would regularly travel through his village back to [Country] to avoid the cold Turkish winters and the village was always closely monitored by the Turkish authorities.

20. The applicant became politically active during his high school years. After completing his high school studies, he and four of his friends established HADEP [Town 1 Village 1] Branch in [2002]. They rented a place for three months before 3 November 2002 General Elections. HADEP [Village 1] branch was opened by [a member] of HADEP, [Mr A].

21. The applicant became [an office bearer] of the Youth Branch of HADEP [Village 1] Branch. As part of his duties the applicant was opening the branch office, sharing the information received from the head office, organising meetings with the members and the Kurdish community to share the party’s projects, recruiting new members to the party, organising protests and celebrations, such as May Day and Newroz celebrations, and organising activities on special days and nights.

22. While [Mr A] was in Gaziantep, [Town 1] for the election campaign, he visited [Village 2]. The applicant was [following] the election campaign bus in which [Mr A] was present. On the way to [Village 2], they were stopped by a military vehicle. The applicant, as well as four of his friends, were taken to the military station. They were detained in the military station for three days. Under detention, three of them who were under 18 were forced to swallow HADEP insignia by the commander. They refused to swallow the HADEP insignia. They were beaten and were placed into a cell. All of the three detainees were released on the third day.

23. The applicant joined the Turkish army in Bornova, Izmir to perform his compulsory Turkish military service in August 2004. He was humiliated and discriminated against by his commanders in the army in Bornova. After 28 days in Bornova, the applicant was sent to [a] city, where there were ongoing clashes between the Turkish army and PKK militants.

24. The applicant returned to his village after the military service and began working as [an Occupation] with his [relative]. At the same time the applicant was to collecting votes for independent candidates ([Political group]) for the July 2007 General Elections. He subsequently became a member of the village council after the election.

25. [In] August 2007, the applicant was picked up by gendarmerie from his workplace and taken to the military station. He was questioned regarding the 15 August PKK Anniversary celebrations preparations. The applicant was physically assaulted and lost consciousness. When he came to he was told by the soldiers that he would be released if he disclosed a few names of those who were involved in the planning of the upcoming celebration. The applicant was kept in custody for two days without food, and released.

26. After this incident, the applicant’s father was concerned, and requested the applicant leave Gaziantep and go to Western cities of Turkey.

27. The applicant returned to his village on New Year’s day 2010, without consulting his father. His father did not let him out of home for three days because he was so afraid something would happen to him.

28. The applicant subsequently worked for independent candidate [Mr B], during the June 2011 election within Peace and Democracy Party (BDP) [Town 1] Branch. The applicant was visiting houses in his village as well as six surrounding villages to explain why BDP was using independent candidates to overcome the 10 per cent election threshold, as well as gathering votes for the candidate for Gaziantep.

29. In February 2012, the applicant went to Antalya and found a job in a [workplace] whose owner was also Kurdish. The applicant was working at Antalya during the spring and summer session for eight to nine months and returning to Gaziantep during the autumn and winter session.

30. While he was in Gaziantep, the applicant was attending to various activities and events organised by the Peoples’ Democratic Party (HDP). At the 2013 Newroz celebrations, he was detained by police with his [sister] and his [relative]. They were taken to [Town 1] Security Headquarters for searching, they were kept in detention for almost an hour, and his sister as well as his [relative] were verbally abused.

31. While the applicant was in Gaziantep during the autumn and winter sessions in 2014, he worked for the election campaign for the March 2014 local elections. He was a candidate for town council and worked as a village representative during the election.

32. [In] August 2014, the applicant worked at the 2014 presidential elections as a ballot box officer. After completion of the counting of the votes he returned to his home. The applicant found out that his motorbike was vandalised. 

33. [In] August 2014, the applicant was picked up by gendarmerie [while] the gendarmerie was doing ID checks. He was taken to the military station. He was assaulted and was asked to collaborate with them. He was released around midnight.

34. The applicant’s father spoke to his [uncle] and decided to send the applicant to Australia.

    New claims

35. The applicant said that while he was in Australia he has become aware that the Kilis Department of Republic Prosecutors filed an indictment to High Criminal Court of Kilis against 18 suspects, including himself. The Tribunal was provided with a copy of the indictment and a translated version into English at the hearing.

36. The indictment stated that an investigation had been carried out regarding the five accused, including the applicant, upon receiving intelligence showing that the five accused were actively operating in YDH-H (Patriotic Revolutionary Youth Movement – The urban militant youth wing of Kurdistan Workers' Party (PKK)), within PKK/KCK terrorist organisation and aiding the members of the group who were active in [Town 2]-[Town 1] region of [a location]. All of the 17 accused named in the indictment said they knew the applicant, but none of them stated that the applicant as well as the other four accused had connections with YDG-H and/or PKK.

37. It was submitted that Section 2/2 of the Fight Against Terror Act No 3713 states: ‘The ones who commit crimes, on behalf of the terrorist group, are deemed as terrorists and are sentenced in the same way with the members of the terrorist organization, even if they are not members themselves’. The indictment confirms that an arrest warrant was issued against the applicant [in] August 2015 and that he is to stand trial.

38. It was submitted that if the applicant was forced to return Turkey, he fears being apprehended at the airport by the Turkish police due to the arrest warrant issued by the [Town 1] Criminal Court of Peace.

39. The applicant said that he was not a terrorist or member of the PKK and the Turkish authorities had manufactured the charges. He said that he knows the accused named in the indictment. Most had escaped from Turkey and sought asylum in Europe. Some have been charged, jailed and released.

40. The applicant fears he will be arrested at the airport and be sent to prison because he is accused of being a member of a terrorist organisation. The applicant fears ill-treatment and torture during the detention, interrogation as well as the prison sentence term, as he will be treated as being a member of the PKK.

41. In assessing the applicant’s claims the Tribunal must determine whether the indictment is genuine and its relevance to the applicant’s claims for protection. The Tribunal is acutely aware that it is unable to practically and meaningfully make enquiries with the Turkish authorities to determine if the indictment is genuine in circumstances where the applicant fears harm from the Turkish authorities. The Tribunal is also aware that it must exercise caution in circumstances where an applicant produces new evidence for the first time at the hearing which did not form part of the original protection visa application.

42. When questioned at the hearing about the indictment the Tribunal found the applicant’s evidence to be credible. The Tribunal found his evidence was given in a natural and spontaneous manner. The evidence was not embellished or rehearsed. The Tribunal has also been able to examine the indictment and is satisfied that it has the appearance of genuine document that was issued by the Turkish authorities.

43. The applicant said he only recently became aware of the existence of the indictment when it was emailed to him by a Turkish school friend ([Mr C]) who worked for the [Town 3] court house. The applicant made clear that this evidence did not exist when he lodged his protection visa application.

44. The applicant was able to show the Tribunal the email communication from [Mr C] on his mobile phone. The applicant explained that [Mr C] was also named in the indictment and had since escaped to [Country 1] where he applied for asylum. The applicant was able to refer the Tribunal to the charges listed in the indictment which name [Mr C] and also confirm his employment with the courts in Turkey. After further questioning the applicant recalled that he had received further communication from [Mr C] on his mobile phone. The applicant was able to show the Tribunal at the hearing correspondence from the [Country 1] authorities dated [October] 2018 which confirmed that [Mr C] was granted asylum in [Country 1].

45. The applicant said that he has been supporting pro-Kurdish political parties from an early age, and has been an official member of HADEP and the successors of HADEP, namely, Democratic Peoples’ Party (DEHAP), Democratic Society Party (DTP), BDP, DBP (Democratic Regions Party) and HDP.

46. It was submitted that since arriving in Australia the applicant has continued to be been an active member of the Kurdish community living in [Australia]. He regularly attends cultural activities organised by the [Community organisation]. The applicant also performs as a [musician].

    Does the applicant have a well-founded fear of persecution for a convention reason?

47. The next issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings and country information detailed below.

48. The PKK is the leading Kurdish opposition group in Turkey. The PKK is listed as a terrorist organisation by Turkey and by many Western countries, including Australia. In advance of the 2014 local government elections, the HDP was established as a sister party to the BDP. It ran to represent Kurdish issues in western Turkey while the BDP continued to run in eastern and south-eastern Turkey. In addition to representing Kurdish issues, the HDP acted as an umbrella coalition incorporating a range of left-wing, trade union and environmental parties. Information confirms that the HDP and a range of other Kurdish groups are also considered terrorist groups by the Turkish Government.[1]

    [1] DFAT Thematic Report Kurds in Turkey 2 June 2014

49. DFAT confirms that political parties representing Kurdish interests have traditionally faced strong opposition from the Turkish state and the government has declared many pro-Kurdish parties illegal on the grounds they have provide support for the PKK. The leading pro-Kurdish parties are the HDP and its regional sister party the DBP.[2]

    [2] DFAT Country Information Report Turkey 9 October 2018 [3.43].

50. Country information confirms that Turkey’s Anti-Terror Law provides a vague yet broadly worded definition of terrorism, which can result in terrorism charges against any member of an organisation which commits criminal activity with the aim of changing the attributes of the Republic. The Anti-Terror Law has been used by the Turkish authorities to criminalise the non-violent expression of political views. These provisions have been relied on heavily to prosecute individuals linked with the PKK.[3]

    [3] DFAT Thematic Report Kurds in Turkey 2 June 2014

51. Human Rights Watch confirms that since the cease-fire agreement between the Turkish government and the PKK ended on 20 July 2015 the Turkish government launched a crackdown on terrorism with the detention of thousands of PKK supporters.  The security operations in the period January to May in towns in the south-east resulted in displacement of up to 400,000 residents. Amidst heavy clashes, hundreds of residents, police, soldiers and PKK-linked militants died.[4]

    [4] >

    In a report updated in June 2018, Minority Rights Group International referred to ‘a process of repression against Kurdish civil society, which was particularly targeted in the wake of the failed coup attempt in 2016 and the subsequent state-led purge. Kurdish NGOs have been closed, private schools with Kurdish language curriculums have been shut down, and Kurdish teachers, academics and officials summarily dismissed.’[5]

    [5] Minority Rights Group International, Turkey, Kurds, Current Issues, updated June 2018, 

52. The US Congressional Research Service (US CRS) published a report in November 2017 which noted:

    Under the post-coup-attempt state of emergency, Turkey’s government has cracked down on domestic political opponents. A primary focus, in addition to the Gulen movement, appears to be Turkey’s Kurdish minority. Heightened ethnic Turkish-Kurdish tensions predated the attempted coup, having been exacerbated since mid-2015 by renewed conflict between government forces and the PKK. Key Kurdish political leaders have been imprisoned since late 2016. Additionally, dozens of elected Kurdish mayors have been removed from office and replaced with government-appointed “custodians.”[6]

    [6] US CRS, ‘Turkey: Background and U.S. Relations In Brief,’ 9 November 2017 

1. The Tribunal finds that the applicant comes from a pro-Kurdish politically active family and his home village is known to be a strong hold of the PKK. The Tribunal finds that the applicant became politically active during his high school years. After completing his studies the applicant was active in the Youth Branch of HADEP [Village 1]. He worked for the independent candidate [Mr B], during the June 2011 election within BDP [Town 1] Branch. While he was in Gaziantep, the applicant was attending to various activities and events organised by HDP. He campaigned for the HDP in the March 2014 local elections. He was a candidate for town council and worked as a village representative during the election. In August 2014, the applicant worked as a ballot box officer during the presidential elections. His pro-Kurdish activities have consistently brought him to the attention of the authorities in Turkey. Having regard to the applicant’s profile the Tribunal accepts that if he returns to Turkey, he will continue to express his views publically, attend protests and meetings to support the Kurdish movement and the current pro-Kurdish political party HDP in Turkey. Therefore, the applicant stands a real chance of being targeted for future harm for reasons of his ethnicity and his political opinion.

2. DFAT’s most recent country information report assesses that pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for both high-level politicians and low-level activists, and applies nationwide.[7]

   [7] DFAT Country Information Report Turkey 9 October 2018 [3.48]

3. The Tribunal finds that the applicant’s Kurdish ethnicity, family membership and engagement with the pro-Kurdish political parties have brought him to the adverse attention of the authorities in Turkey. The anti-government and pro-Kurdish profile has resulted in terrorist charges being issued against him in 2016. Country information detailed above confirms that the Turkish authorities arrested and imprisoned thousands of citizens in the aftermath of the July 2016 coup attempt on the grounds of alleged links with terrorism, particularly from those groups seen as a possible threat to the government. The UK Home Office confirms that Kurds appear to have been specifically targeted by the authorities.[8]

   [8] Minority Rights Group International, Turkey, Kurds, Current issues, updated June 2018  [2.4.4]

4. In conclusion, the Tribunal finds that the applicant’s claims are consistent with country information referred to above which confirms that pro-Kurdish political activists, such as the applicant, face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution. In the circumstances, looking to the reasonably foreseeable future, the Tribunal finds there is a real chance that the applicant will suffer serious harm from the Turkish authorities on his return and that he will be charged with being a member of terrorist group. The Tribunal finds that the applicant’s fear of persecution because of his Kurdish ethnicity and his pro-Kurdish political opinion is well-founded.

5. On the basis of the evidence, the Tribunal accepts the applicant’s ethnicity (race) and political opinion are the essential and significant reason for the harm he fears. Therefore his fear of persecution is for a Convention reason. Accordingly, the requirements of s.91R(1)(a) are met.

6. Having regard to the non-exhaustive list in s.91R(2) of the type and level of harm that will constitute ‘serious harm’ for the purposes of s.91R(1)(b), the Tribunal accepts that the persecution feared by the applicant involves serious harm, including significant physical harassment or ill-treatment and a threat to his life or liberty. It follows that the requirements of s.91R(1)(b) are also met.

7. In relation to the requirements of s.91R(1)(c), the Tribunal is satisfied from country information set out earlier that the feared persecution by the current Turkish authorities would involve conduct which is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicant for the Convention reason of his Kurdish ethnicity and pro-Kurdish political opinion. It follows that the requirements of s.91R(1)(c) are met in this case.

8. As the Tribunal has accepted that the applicant has a well-founded fear of persecution from the Turkish authorities, it accepts that the feared persecution is not localised and that it is not therefore necessary for the Tribunal to go on and make findings as to whether it would be reasonable for the applicant to relocate.

9. In all the circumstances, the Tribunal accepts that there is a real chance that the applicant will face serious harm now or in the reasonably foreseeable future if he returns to Turkey.

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

    DECISION

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

    Christopher Smolicz

    
    

    Member