1610340 (Refugee)

1610340 (Refugee) [2019] AATA 6823 (24 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610340
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Peter Vlahos
DATE:24 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 24 October 2019 at 7:09am
CATCHWORDS
REFUGEE – protection visa – Turkey – political opinion – opposes AKP – race – Kurdish – religion – Alevi – particular social group – Turkish Kurds who protest against suppression of cultural rights – significant anti-government political activities and protests – family killed by Turkish authorities and extremists – state protection not available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 20 June 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 12 February 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy subsection 36(2) of the Migration Act (as amended).
On 9 July 2016 the application for Protection visa was refused by the delegate of the Minister and on 12 July 2016, the applicant made an application to the Tribunal to have the Department’s decision to refuse reviewed by the Tribunal.
The applicant appeared before the Tribunal on 10 October 2019 to give evidence, make submissions and present arguments.
The applicant was represented via the telephone by his registered migration agent.
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
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the ‘Department’) and to the Tribunal at the hearing, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant, is a national of the Republic of Turkey and has had assessed claims against that country in relation to ss. 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (as amended).
On the basis of the above evidence, the Tribunal further accepts the applicant’s identity as claimed.
Background
The applicant is [a] Turkish national (of Kurdish ethnicity) and an Alevi religion, from [Turkey]. He arrived in Australia on a [temporary] visa ([Subclass]) [in] July 2013. He applied for another [temporary] visa ([Subclass]) whilst in Australia on 3 October 2014 and was subsequently granted a Bridging [Subclass] visa on 3 October 2014.
The applicant has family consists of his elderly mother (his father is deceased), his [number of siblings]. One sibling is currently living in [Country 1]. The applicant is not married but is in a relationship currently. While living in Turkey, the applicant was working at [a specified employer]. He had completed all of his primary, secondary and tertiary education in Turkey and had professional qualification – a Bachelor’s Degree in [Subject 1] and [Subject 2].
The applicant told the Tribunal that while in Australia, he completed his studies and gained from a privately-run educational institution – a Diploma in [Subject 3]. He had the intention to do further studies but did not proceed.
He applied for a Protection visa on 12 February 2015 and was granted a Bridging visa [Subclass] on 18 February 2015 which continues to be in effect. He withdrew his [temporary] visa application on 30 March 2015.
The Applicant’s claims for Protection
The applicant’s claims before the Tribunal can be summarised as follows:
§He (the applicant) is of ‘Kurdish’ ethnicity and ‘Alevi’ religion.
§His family originates from [Province 1], Turkey where his parents had migrated there before he was born.
§Family and relatives were exposed to violence by the police and during the 1980 protests – when he was still a child, his mother’s cousin was stabbed to death by the police.
§His [sibling] one day was detained by the police while [coming] home and was released after [some time].
§He was abused by the teachers at school because of his Kurdish ethnicity.
§In 1994 his cousin was killed by soldiers at [Province 1] and police attacked the funeral which he (the applicant) attended.
§His teacher asked if he was related to the deceased, he (the applicant) said yes, and his teach told him that ‘his cousin’ deserved to die because ‘she was a terrorist.’
§He was involved in democratic activities in high school and was exposed to police violence each time.
§He experienced violence and discrimination at university – in 2005, his friends were playing Kurdish music and dancing and he (the applicant) was attacked by ‘fascist’ students, security officers joined in the attack.
§In 2006, friends near the university were singing and dancing and once again attacked by the military because of he is ‘Kurdish Alevi.’
§He remained politically active and in 2012 during a protest he was attacked by police and detained for [a number of] days.
§In December 2012 – his [sibling]’s house was marked as Alevi and a few later he was taken from the street and forced into a car. He was questioned about his involvement with the protests and he was threatened before he was released.
The applicant’s claims for protection were also set out in his statement of 11 February 2015. Relevant additional matters are summarised as follows:[1]
[1] See Department of Immigration and Border Protection [File]
§The applicant’s uncle had to leave Turkey in 1980s, during the military coup. He was an opponent of the military coup and was wanted by the authorities. His uncle took refuge in the applicant’s family’s home for a period of time. As a result of this, the applicant’s parents were abused and mistreated physically by the authorities.
§At the end of 1980s, the applicant’s mother’s cousin [was] stabbed to death by the police and ‘fascists’ in [Suburb 1], Istanbul. The applicant’s family and relatives were exposed to violence by the police during the protests carried out before and after his funeral. The applicant’s father was abused and physically assaulted by the local civilian police.
§One day the applicant’s [sibling] was detained while [returning] home, and was not contactable for an entire week. It later became known by the family, that his [sibling] was taken to [a named] police station. [The sibling] was released [some time] later after being threatened.
§Another incident that caused deep concerns and affected the applicant was the killing of his cousin, [by] soldiers in 1994 in [Province 1]. At that time the applicant was attending primary school. His cousin’s funeral was held in the applicant’s family’s suburb, [Suburb 1]. The police attacked the crowd, who participated in the funeral. The applicant’s mother and [siblings] were physically abused by the police and the applicant was also assaulted when he too resisted the police.
§The applicant was also abused at school by his teacher, telling him that his cousin was a ‘terrorist’ and that ‘she deserved to be killed.’ This disturbed the applicant deeply.
§The applicant faced similar abuses while attending secondary school. On one occasion, an elderly teacher abused him in front of the class by highlighting his ethnic background. The incident was reported by his mother to the local police but little was done. As a result of this incident, the applicant did not attend classes regularly because he feared being abused by his teacher.
§In 1996, the applicant was attending a scripture class (which he disliked). Being an Alevi he did not accept the ways and means of Muslims. On that occasion, the religious instructor was trying to teach students how to pray and memorise prayers from the Koran. The applicant never memorised the prayers and one day the teacher conducted an oral examination and the applicant failed to recite the prayer and was ‘beaten’ by his teacher. After, telling the teacher he was Alevi and not a Muslim, he was abused and thrown out of the class.
§Again, in 1996, will the applicant and his friends was celebrating Newroz by starting a Newroz fire in the street, the group was set upon by police and all were beaten indiscriminately. On this occasion the applicant was severely beaten and injured.
§In September 1997, while at high school the applicant involved himself in many democratic activities and these activities brought him to the attention of the local police.
§[In] March 1998, the applicant and his friends were planning to attend the protests of the ‘Gazi massacre’ when the applicant heard that the police had positioned themselves at the entrance of the suburb and were preventing traffic to enter. Then, it was decided to enter the area by foot. As the applicant and his friends approached the area they were asked by the police to produce their identity cards. Thereafter, they were beaten without reason.
§In November 2000, the applicant together with his friend [and] others attended a concert ‘[named] in ‘[a]’ cultural centre [in] support of the hunger strikes of the inmates in prison. A petition was signed which was later delivered to the Turkish Parliament. Afterwards, the group started dancing traditional songs and this caused the police to intervene. As a result of this police intervention, the applicant was detained [and] was abused and mistreated. The police described the applicant and his friends as ‘they are all terrorists…they raise terrorists from their childhood ages…’ and then released them.
§Again in December 2000, the applicant participated in a [press conference], focusing on prison conditions in Turkey. The press conference was abruptly subdued by the police and those assembled were forcibly dispersed.
§[In] July 2001, the applicant participated in the ‘Sivas Massacre’ public protests in his suburb. The applicant and a group of his friends were walking, when they noticed a car following them. These persons then came out of the car, beat the applicant and his friends and left the scene.
§In 2002, the applicant started his studies at [University]. In May 2003, the applicant and his friend were detained by the police while they were carrying banners that had been prepared for the May Day celebrations. The applicant and his friend were taken to [a] police station was abused verbally and physically and after [some time] in detention they were released.
§In 2005, at the spring festivities held at the university, the applicant and his friends rented a stand and were playing Kurdish music and dancing. After a while a group of ‘fascist students’ attacked the applicant and his friends. The local police was called to assist and the result of this was that the applicant and his friends were removed from the campus.
§In March 2006, the applicant and his friends came together on a piece of vacant land near the university with the intention of celebrating Newroz. At this celebration, there was dancing and signing of traditional songs. This attracted the extremist elements on campus which intervened to put an end to the festivities. A number of the applicant’s friends suffered injuries; while the applicant sprained his foot.
§The applicant’s studies at university were completed in [a certain year]. He was unemployed for a period of time. During job interviews, he was asked about his background and when he told his prospective employers his Kurdish origins, he was always told, that they would call him but never did.
§In 2008, the applicant started working for ‘[Named Employer]’. The work environment was fine until the applicant was asked by another employee about his background. When the applicant explained this, complaints were made to management and he was forced to leave without being paid the wages he had earnt.
§In December 2009, the applicant carried out his compulsory military service. The applicant and his Alevi Kurdish friends were exposed to verbal and physical abuse and mistreatment in the Turkish army. On one occasion, one commander verbally abused all, when a soldier broke the button on a washing machine panel. The applicant protested at this abuse to his superiors, who told him to ‘shut up’ and penalised him by placing him in jail for a week. The applicant was also severely mistreated and abused. The applicant’s living conditions while in prison were not of proper standards and he sustained beatings and abuse until his release.
§In 2011 (after completing military service) he participated in a demonstration in [Suburb 1] to attract attention to the court case of Hrant Dink. On this occasion the applicant and his friends were detained at the [Police] station. Again, the applicant endured abuse and humiliations because of his ethnicity and religion.
§Again, in the same year, the applicant and others heard that a large dam was going to be built in his family’s traditional lands. The applicant protested this development. He was arrested, interrogated by the authorities and told not to get involved in these protests.[2]
§In January 2012, the applicant was involved in the protests concerning the ‘Uludere Massacre’. He was pepper gassed together with other protesters. Later that year, he participated in a demonstration in Guzeltepe protesting against the building of a mosque. The police intervened, the applicant was beaten and he escaped custody by escaping to his [sibling]’s home.
§In December 2012, [a number of] Alevi houses including the applicant’s [sibling]’s house were marked by the authorities as problem areas. His [sibling] and [their family] were scared and they abandoned their house and sought refuse with the [applicant]. Some days after, a group of civilians forced the applicant handcuffed into a car and he was warned to stop his protesting or else the applicant will be not only himself harmed but his family. After this incident, the applicant was under constant surveillance. He felt his life was in danger and decided to leave Turkey.
Key issues
[2] Ibid, see Department File, Folio no. [66]
The key issues in this review are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Turkey, from the Turkish authorities or members of the broader Turkish community, because of his political opinions and activities, Alevi backgrounds and his Kurdish ethnicity( for the purpose of s.36(2)(a) of the Act); and if not, whether there are substantial grounds for believing that, a necessary and foreseeable consequence of him being removed from Australia to Turkey, there is a real risk he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The issue of credibility – some preliminary comments
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.
Assessment of the claims
While the Tribunal accepts that the applicant has an Alevi background, and accepts that he continues to follow some Alevi social and cultural traditions, from his evidence at the hearing and his admission that he did not believe in ‘any religion’, the Tribunal accepts that he is not religious. Indeed, when the Tribunal asked the applicant if he considered himself to be a religious person, he indicated he was an ‘atheist’ and a ‘Socialist’ but an Alevi in culture. The Tribunal accepts that the applicant is a strong supporter of the Alevi community even though not religious and would be outspoken in his support of Alevi rights.
The applicant also identified himself as a ‘Kurd’ or of a ‘Kurdish background’. The Tribunal accepts that the applicant views the Kurdish people as oppressed and supports the ‘Kurdish cause’. The Tribunal also accepts that that the applicant has been a member and has been associated with social groups sympathetic to the Alevi culture and Kurdish national identity and cause. The Tribunal also accepts that, if returned to Turkey, the applicant would become a member of a particular social group comprising Turkish Kurds who refuse to accept and cause political dissent against the suppression of cultural rights, identity and nationality of the Kurdish people.[3]
[3] UK Home Office, Country Policy and Information Note, Turkey: Kurds, Version 2.0, September 2018
After careful consideration of all available evidence, the Tribunal accepts that the applicant has had a history of left-wing agitation and political activism in Turkey and this activism has brought him into adverse contact with the Turkish police. The Tribunal accepts that the applicant’s family in the past had been targeted by elements of the Turkish state and extremists resulting in the deaths of close family members. In particular, the Tribunal heard with concern the applicant discuss the death of his mother’s cousin in 1980 at the hands of extremist elements operating in the Turkish police and security state. This state supported violence took further tolls on the applicant’s family in 1994, when a cousin was killed by Turkish soldiers and his subsequent funeral was subjected to local police intervention. What made it more revealing to the Tribunal as far as it concerned the plight of the applicant as far as it concerned his ethnicity as a Kurd was his evidence before the Tribunal describing his ‘democratic activities’ while he was an undergraduate at University.
The applicant told the Tribunal that while at university he witnessed and experienced ‘discrimination’ and the open suppression by university and state authorities of the ‘Kurdish’ ethnic element. For instance, in 2005 the applicant and his friends were displaying Kurdish traditional dances and music at the university precinct, when the display grounds was invaded by extremist elements and later the police intervened effectively shutting down the public display. Later, in 2006, at another public meeting ‘near the university’ the applicant and his friends were set upon by extremists and the police instead of providing assistance to the applicant and his friends intervened and physically attacked the applicant and his fellow Kurd friends.
Later, when having completed his university studies, the applicant’s political agitation and activism in favour of the Kurdish people, caused him to involved in a series of demonstrations - one in 2011 to attract public attention to the court case of ‘hart Dink’. On that occasion the applicant suffered injuries and abuse inflicted upon him by the police. In that same year, the applicant involved himself in protests against the establishment of ‘dam’ complex (Pembelik Dam) which flooded his family’s and others’ traditional lands. These protests, the applicant told the Tribunal continued even in Istanbul in front of the offices of the company known as ‘Limak’ which was responsible for the dam’s construction. On that occasion the applicant was detained by the local police for [a number of] days, warned about his agitation and then released. In 2012, the applicant told the Tribunal that he was again involved in protests concerning the ‘Uludere massacre’ and subjected while protesting (with others) to ‘pepper gas’ attacks. Further involvement in protests occurred in Guzeltepe against the building of a mosque and demanding that more schools and sports facilities be built in these areas. This protest also resulted in the applicant together with others being beaten by the local police.
The Tribunal noted a letter dated 22 September 2018[4] and a further letter dated 22 October 2019[5] from [a senior official] of the ‘[Kurdish Organisation 1]’ which attests amongst other matters concerning the applicant that “he (the applicant) is a member of the [organisation] and is well-known to our community….and has always participated in community activities and function…” Moreover, the applicant provided a number of photographs involved not only in Kurdish/Alevi cultural events but also in protests concerning the plight, rights and treatment of Alevi/Kurdish people in Turkey.[6] The Tribunal accepts and finds that the applicant has continued to be politically active in relation to left-wing causes in Australia and finds it consistent with their political activism in Turkey. The Tribunal accepts that the applicant if he was to return to Turkey would feel compelled to be politically active and to undertake protest activity in support of left-wing and pro-Kurdish causes.
[4] AAT File Folio No [5]
[5] Ibid see Folio [44]
[6] Ibid AAT File, Folio no [26]-[36]
In considering whether the applicant faces a real chance of suffering persecution involving serious harm given his 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:[7]
[7] 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.
Political activists and protestors
·    In the past, protests were a regular occurrence in Istanbul, Ankara and other major cities. The
Gezi Park demonstrations of 2013 marked a change in official response to public protest.
             These demonstrations initially began as a small-scale protest against the felling of trees in
             Istanbul’s Gezi Park for development purposes, but grew in early to mid-2013 to incorporate
             groups protesting other issues, including human rights violations, increasing authoritarianism,
             and social injustices.
·    At their peak, hundreds of thousands participated in the protests, which occurred nationwide.
The protests were generally peaceful, although there were some incidences in which
             demonstrators used violence against security forces. Security forces responded to the
             protests forcefully, dispersing demonstrators with teargas and rubber bullets. The Turkish
             Medical Association reported eight people were killed during the protests, of whom at least
             four died as a result of police violence. Over 8,000 were injured, including hundreds of
             security personnel.
·    In January 2014, the government introduced legislative amendments which could be used to
criminally punish the provision of emergency medical treatment during protests: a number of
             doctors were disciplined and two were criminally prosecuted for providing first aid in makeshift
             medical clinics.
·    Protests have continued to occur in Turkey since the Gezi Park demonstrations, but none has
approached the same scale. The government has regarded many anti-government
             demonstrations as security threats to the state, and deployed large numbers of riot police to
             control crowds. Authorities have also detained organisers ahead of the event, notably where
             the event has related to a sensitive subject, such as the conflict in the south-east or issues
             relating to sexual orientation or gender identity.
·    Authorities have regularly declined permission for demonstrations or rallies by groups
perceived to be against the government, including ahead of the April 2017 constitutional
             referendum. Where they have granted permission, they have limited access to some sites.
             Security forces have at times responded to protests with force causing large numbers of
             injuries.
·    DFAT assesses that the ability of critics to protest government policies through political
demonstrations has been significantly reduced by measures introduced during the state of
             emergency which remain in place. Those seeking to protest on sensitive issues are likely to
             be denied official permission, and to face a security response involving force if they proceed.
·    DFAT assesses that the government’s active use of defamation laws has limited the ability of
critics to protest government policies. In particular, those perceived to have criticised the
             president personally face a high risk of prosecution and conviction, which may lead to a
             prison sentence.
·    DFAT assesses that human rights defenders face a high risk of official discrimination in the
form of arrest, monitoring, harassment, prosecution, and being prevented from travelling
             abroad. This risk is particularly high for those working on the rights of cultural, religious and
             sexual minorities, and labourers.
·    DFAT 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.
The Tribunal finds that the country information indicates that the government’s tolerance of those who support pro-Kurdish causes, left-wing political activists and protesters generally has declined markedly since the collapse of the ceasefire agreement with PKK in July 2015 and the resumption of ‘security operations’ in south-eastern Turkey, and the attempted coup d’état against the government in July 2016.In this regard, the Tribunal notes DFAT’s assessments that the ability of critics to protest government policies through political demonstrations has been significantly reduced by measures introduced during the state of emergency, which remain in place. DFAT comments that those seeking to protest on sensitive issues are likely to be denied official permission, and to face a security response involving force if they proceed.
The Tribunal noting the applicant’s past involvement in political activities and protests critical of the government and in support of left-wing causes and minority groups (including Kurdish) causes, and the likelihood that they would continue to engage in such activities should he return to Turkey, the tribunal finds that DFAT’s assessments that those perceived to have criticised the President personally face a high risk of persecution and conviction under defamation laws, which may lead to a prison sentence; that human rights defenders face a high risk of official discrimination in the form of arrest, monitoring, harassment, prosecution, and being prevented from travelling abroad; that pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution, and a moderate risk of physical violence from both security authorities and ultra-nationalist supporters, are relevant to the applicant’s circumstances currently before the Tribunal for consideration.

Having considered the applicant’s individual circumstances, the Tribunal finds there is a real chance that he would suffer treatment amounting to persecution involving serious harm from government authorities and/or Turkish ultra-nationalists due to his support for left-wing political parties and engagement in anti-government political activities and protests, including un support of minority groups such as ethnic Kurds and Alevi, should he return to Turkey.
The Tribunal is satisfied that the real chance of serious harm the applicant will face if he was to return to Turkey will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. The Tribunal finds that the essential and significant reasons for the serious harm the applicant faces is his actual and imputed political opinions of opposition to the ruling AKP political party and support for left-wing parties and the Kurdish cause, and his Alevi background and his membership of a particular social group of being a person that believes in no religion in Turkey.
Availability of State protection
In this case the real risk of harm to the applicant faces includes harm from state actors. In this regard the Tribunal notes DFAT’s comments that, while Turkey has a wide range of state protection mechanisms and it security forces and judicial institutions are well established, civilian-run, and benefit from a long tradition of public service, the government’s strong response to the failed coup of July 2016, particularly towards those accused of links with the Gulen movement, has weakened the capacity of the security and criminal justice system to deliver state protection. DFAT comments that while official avenues exist to lodge complaints of human rights abuses and improper treatment by police and other security authorities, DFAT assesses that it is unlikely that a complaint from a high-risk group, such as an ethnic minority or political activists, alleging abuse by a member of the security forces would result in persecution.[8] Against this background, the Tribunal concludes that state protection is not available to the applicant in Turkey.
Relocation
[8] DFAT Country Information Report, Turkey, 9 October 2018, see section 5.1
Although the matter of relocation was not raised by the applicant in his submissions to the Tribunal at the hearing, that being so, for completeness on the part of the Tribunal of its consideration of the applicant’s protection concerns, the Tribunal considered this matter. In the circumstances of this case, where the harm feared includes harm from state actors, and noting DFAT’s assessment that the requirement for a local certificate of residence and the nationwide reach of security services means that an individual facing adverse official attention is unlikely to be able to escape this adverse attention through internal relocation, the Tribunal finds that the applicant cannot remove the real risk of serious harm he faces by relocating to another area of Turkey away from his home area.[9]
[9] Ibid, see sections 5.22-5.24
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 he satisfies the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) 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 6823

24 October 2019

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