1611379 (Refugee)

1611379 (Refugee) [2019] AATA 6004 (3 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611379
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Christopher Smolicz
DATE:3 July 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 July 2019 at 4:08pm

CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurdish – religion – Sunni Muslim – imputed political opinion – Kurdistan Workers’ Party (PKK) activist – subjected to ongoing torture – indictment for terrorist offences – particular social group – failed asylum seeker – provided humanitarian assistance to Syrian refugees – compulsory military service – not a draft evader – not a conscientious objector – treatment of Kurdish conscripts – credibility issues – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
MIAC v SZQRB (2013) 210 FCR 505
MZYXS v MIAC [2013] FCA 614
MZYXS v MIAC [2013] FMCA 13
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 on 24 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 6 January 2015.
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 themself 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 s.5J(2)–(6) and ss.5K–5LA, 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·     of his Kurdish ethnicity
·     the Turkish authorities have identified him as a Kurdistan Workers’ Party (PKK) activist
·     the Turkish authorities have issued a warrant for his arrest and charged him with being involved in the activities of a terrorist organisation
·     he provided humanitarian assistance to Syrian refugees in Turkey
·     he objects to compulsory military service
·     he fears he will be imputed as being anti-government as a failed asylum seeker.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of substantive claims
The applicant is a [age]-year-old Kurdish citizen of Turkey. He is from the majority Sunni Muslim religion. He arrived in Australia in December 2014 as the holder of a temporary student visa travelling on a validly issued Turkish passport. The applicant has married an Australian citizen (Ms [A]) since he arrived in Australia. Ms [A] attended the hearing and gave evidence at the hearing in support of the applicant’s claim for protection.
He claims that following his graduation from high school in [month year] he experienced an awakening regarding his Kurdish identity and the oppression faced by Kurdish people in Turkey. As a consequence he began investigating his Kurdish cultural heritage and became aware of the discrimination Kurds have faced in Turkey. He attended at the [Organisation 1] with a friend. His parents told him not to participate in any illegal demonstrations, respect the police force and not to communicate with other people in Kurdish.
He claims to be a person who supports peace and this is the reason why he does not want to join the military forces to perform compulsory military service to kill or get killed.
He claims that sometime between his high school graduation and his departure from Turkey in December 2014, he was able to have his military service commitments deferred [until] 2019. He is not sure how this was done or the reason behind his deferment but a friend helped him and he had to pay [an amount of money].
He claims that although he does not have to take part in military service [until] 2019, he will have to eventually take part and will be involved in the Turkish government conflict with the PKK.
In April 2013 he took part in the Newroz celebrations[1] at [named location] which were attended by a large number of Turks. There was a high security presence and many people were assaulted by the police. The applicant claims the security forces took photographs of all participants.
[1] A spring festival of Persian origin which is widely observed by Kurds in Turkey. In Turkey the festival is generally held between 18 and 24 March, to coincide with the March equinox.
The applicant claims that about two weeks after the celebrations he was summonsed to attend the police station and questioned about the photographs that were taken. He claims he was blindfolded, kept in a darkroom, tortured and questioned for three days about being a supporter of the PKK. The applicant states that he has no association with the terrorist group. He was forced to sign a document that he has not been assaulted. His father subsequently picked him up and took him home.
The applicant claims that after he was released every [week] an undercover police car would come to pick him up from home. Everyone in his neighbourhood thought he was a businessman who went to work in a private car. On each occasion he was taken to the police station and tortured in a different way. He now has nightmares and is worried about his mental health and hates [a certain day of the week]. He claims that due to the torture he experienced he is confused and unable to remember dates, details or answers to questions regarding his claims.
In 2014 many Syrian refugees migrated to his province. The refugees did not receive any food or accommodation. The applicant was working at a [business] with his uncle at the time and would give the refugees [some assistance]. The authorities caught him in August 2014. He was tortured for a week.
He decided to leave Turkey to visit his uncle in Australia. He paid a bribe and was issued with a passport and obtained a student visa. On departure he was asked for his reasons for travelling to Australia, however experienced no difficulty regarding his military service. He claims that despite his history, the authorities had to allow him to leave as he had a valid visa to travel to Australia.
He does not know why he was singled out by the authorities. He claims that many Kurdish people in his area are targeted by the Turkish authorities and have been detained and tortured because of their Kurdish ethnicity.
He has not been involved in any pro-Kurdish political activities in Turkey or Australia.
Delegate
For the purpose of the current review the applicant submitted a copy of the delegate’s decision record which contains a summary of evidence provided at his protection visa interview. It was not suggested that any of the content in the record was inaccurate.
During his interview he said that the military and military service are important and that his service commitments would not be a problem if not for the discrimination experienced by Kurds.
The delegate had regard to the applicant’s statement of claim (SOC) and evidence provided by the applicant during his protection interview and did not accept the following claims.
The delegate found that when the applicant was questioned about aspects of his Kurdish culture at the interview he was only able to state information that was in his SOC and the delegate found that he did not display the breadth or at least the passion of the person who wrote the SOC. For example the delegate noted that the applicant claimed during the interview the Kurdish language was being oppressed, however country information indicates that Kurdish programming is on state television, Kurdish is regularly spoken in the streets, signs are written in Kurdish and that Kurdish-speaking politicians have campaigned in Kurdish areas for Kurdish rights since at least 2011.[2] The delegate notes that Kurdish is commonly used throughout Turkey, with few restrictions on the use of the Kurdish language remaining.[3]
[2] “Turkey Plunges into the Abyss”, Freedom House, 28 July 2015, CXBD6A0DE12040.
[3] “DFAT Thematic Report Kurds in Turkey 2 June 2014”, DFAT, 2 June 2014 CIS2F827D91265 p.8.
The delegate raised these issues with the applicant during the protection interview.
The delegate concluded that the applicant’s account of being culturally awakened by his friend was unconvincing, lacked detail and implied an implausible naivety for someone who has resided in a Kurdish area for his entire life. The delegate noted that apart from attending Newroz and being involved with [Organisation 1][4] for a few months in 2013 he has been involved with no Kurdish groups, organisations, cultural activities or even study in the culture.
[4] [Source deleted]
The applicant claimed that he was targeted and detained by the authorities two weeks following the 2013 Newroz celebrations. When questioned by the delegate the applicant could only state in general terms regarding what he did at the celebrations, could not state when Newroz occurred and could only state that he was detained two weeks following the event. The delegate noted that considering that Newroz has been allowed to be celebrated freely since 1995, it seems implausible that he was unaware of the event prior to 2013. The delegate noted that the applicant could not explain why the authorities would target him given the large number of Kurds in the area.
The applicant claimed that due to the torture he experienced and the trauma of the events he was confused and unable to recollect times, places or details regarding his claims. The delegate did not accept the applicant attended Newroz in 2013, was detained and was questioned by the authorities from April 2013 to early 2014.
The applicant claimed that he was detained by the Turkish authorities who were under the belief he had links with the PKK. The delegate noted that the applicant could not state why the authorities would hold such beliefs, beyond that he was a Kurd and that he was previously detained.
New claims – Indictment
The applicant made a number of new claims in a statement dated 9 May 2016. This evidence was not presented to the primary decision maker. The Tribunal discussed these claims with the applicant at the hearing. The Tribunal explained to the applicant that it must exercise caution when new evidence is presented which was not put forward before the primary decision maker.
The applicant claims that in “around 2016” his family received an “arrest warrant” [indictment] from the Turkish Public Prosecutor’s Office alleging he has committed criminal offences. The Tribunal was provided with a copy of an indictment in Turkish and an English language translation [October] 2016. It alleges the applicant was involved in activities of the Youth branch of a terrorist organisation [PKK], participated in demonstrations and rallies [and took part in other criminal activities]. It claims [the authorities] attempted to arrest the applicant and seized evidence against him during their operation.
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 also has to consider whether the applicant has put forward a reasonable explanation as to why the evidence was not presented before the primary decision maker.
The Tribunal is 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.
In assessing the evidence the Tribunal notes that the indictment purports to have been issued [in] May 2016, which is over a month before the delegate made a decision in this matter (24 June 2016).
When questioned at the hearing about the indictment the Tribunal found the applicant’s evidence to be lacking in credibility. He said his wife had the original. After further questioning he said the indictment was sent by email to him by his uncle or [sibling] from Turkey but could not be specific about who actually sent the document. He did not produce a copy of the email.
After further questioning he claims he spoke to his parents and they received the indictment in 2017. It was issued from a police station because the police were searching for him. He could not provide further evidence about how the indictment came into existence and why it was issued two years after he departed Turkey. The applicant did not provide any evidence from his parents, his uncle or his [siblings].
The Tribunal questioned the applicant why the Turkish authorities would issue an indictment in 2016 seeking his arrest in circumstances where he was able to depart Turkey in December 2014 to study in Australia.
The applicant said that he was not a terrorist and does not agree with the allegations. He claims he was active in [Organisation 1] and took part in Newroz celebrations in 2013. He claims in 2014 he was working at a [business] with his uncle and they [helped] Syrian refugees and these actions have brought him to the attention of the Turkish authorities.
The Tribunal observed that it seemed unusual that the Turkish authorities would accuse the applicant, who was only an employee, of being a terrorist because the [business] where he was working [helped] Syrian refugees. The applicant maintained that the Syrians were Sunni Muslims and considered to be terrorists by the authorities. The Tribunal asked the applicant if his uncle who also worked at the [business] had any problems with the authorities. The applicant said his uncle had no problems with the authorities.
The Tribunal has had regard to country information and finds the large influx of Syrian refugees is a topic of active political debate in Turkey. The Tribunal notes however that the Justice and Development Party (AKP), Turkey’s ruling conservative political party and President Erdogan have supported anti-government rebels in Syria and the President has been quoted as referring to the refugees as “Muslim brothers and sisters”. Reports confirm that the Erdogan government introduced programs that granted citizenship to some Syrian refugees, regardless of how long they have lived in Turkey.[5]
[5] “Turkish President Erdogan faces pushback for pro-Syrian refugee stance ahead of June election”, 28 May 2018, Los Angeles Times, <>
Reports confirm that an estimated 3.5 million Syrian refugees have been welcomed to Turkey since 2011.Turkey’s ‘open door policy’ for Syrian refugees has earned Turkey the title of the world’s largest refugee-hosting country. Reports confirm that Erdogan’s ruling party has advocated compassion towards the refugees and Turkish pro-government media largely represents Syrian refugees as victims needing assistance.[6] The Tribunal also notes that reports confirm that Syrian refugees have brought in capital, and increased productivity in cities like Gaziantep where the applicant resides.[7]
[6] Media Coverage, Perception and Evidence: the Economic Impact of Syrian Refugees in Turkey; TRT World Research Centre, September 2018, < “Syrians have had a positive impact on the Turkish economy”, 14 May 2019, TRT World, <>
The Tribunal finds that the country information does not support the applicant’s claim that he was viewed as a terrorist and anti-government by the ruling authorities because he assisted Syrian refugees by [undertaking a certain task] from a [business] where he worked as an employee.
Having considered the country information the Tribunal is not satisfied that there is a real chance that the applicant would face persecution in Turkey in the reasonably foreseeable future because he [helped] Syrian refugees when he was working for [a business] in Turkey in 2013.
The Tribunal questioned the applicant about the 2013 Newroz celebrations. The applicant said it was celebrated by many people. The authorities came and forced the people to provide their names and took photos. They said it was for their protection. After the celebrations the police attended at his house and took him to the police station. He was there for [number of] days. He was questioned and accused of working with terrorists. They accused him of being in charge of the local area. They knew he attended [Organisation 1]. He was physically assaulted and injured. He was unconscious and suspects the authorities tortured him with dripping water. His father subsequently took him home.

The Tribunal notes that [Organisation 1] was legally operating in Turkey and was not banned at the time.[8] The Tribunal does not accept that he was involved in the organisation and this brought him to the attention of the authorities.
[8] [Source deleted].
The Tribunal referred the applicant to his claim and expressed surprise that after he was released by the authorities every [week] an undercover police car would come to pick him up from home and he was taken to the police station and tortured. The applicant said he had an [injury] and could not walk to the station. After further questioning he said that eventually he walked to the station himself. The Tribunal found the applicant’s evidence unconvincing. The Tribunal is concerned about the change in the applicant’s evidence. For example in his statement he claims that the visits by the police each [week] were so regular that everyone who lived in the neighbourhood thought he was a businessman who went to work in a private company car. Having had regard to the applicant’s profile the Tribunal does not accept his claim that the police would pick him up every [week] in an unmarked car so that they could torture him.
The Tribunal questioned the applicant how he was able to depart Turkey in December 2014 if he was a person of interest to the authorities. The applicant claimed that he applied for a student visa. He told the people at the airport that he was travelling to study on a visa and he would come back.
The Tribunal questioned the applicant about his Turkish passport and travel arrangements to Australia. The applicant said that he spoke to a friend who told him if he paid money he could get a passport.
The applicant said that he attended at a police station, paid a bribe and obtained the passport. The Tribunal expressed surprise that the applicant would attend a police station after he has been regularly subjected to torture and interrogation by the police and offer a bribe so he could leave Turkey. The applicant said that there were different types of police and he did not enter the station and remained outside.
The Tribunal had regard to country information and expressed surprise that the applicant would be issued with a passport and permitted to depart Turkey in circumstances where he claims he was regularly interrogated and tortured by the authorities.
DFAT’s country information report provides the following information on Turkey’s exit and entry procedures which are relevant in assessing the applicant’s claims:
Turkish authorities maintain a range of databases that provide information to immigration and law enforcement officers. The General Information Gathering System, which provides information on arrest warrants, previous arrests, travel restrictions, military service record and taxation status, is available at most air and seaports across the country. A separate border control information system used by the police collates information on past arrivals and departures. The Judicial Records Directorate maintains records of past sentences served. The Central Civil Registration System (MERNIS) maintains information on civil status information …[9]
[9] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, 51 at [5.26].
The Tribunal does not accept the applicant’s claim that he attended [Organisation 1] and came to the attention of the authorities during the 2013 Newroz celebrations, was detained and tortured and was subsequently being picked up by the police every [week] and subjected to ongoing torture. The Tribunal does not accept there is a warrant for his arrest and that the police were searching for him in Turkey. The Tribunal finds the applicant manufactured these claims and that the indictment is not a genuine document.
The Tribunal accepts that the Newroz celebration is an important symbol of Kurdish ethnicity and has historically attracted police attention and has been heavily politicised and used for political messaging.[10] As discussed with the applicant at the hearing the Turkish authorities legalised the celebration of Newroz in 1995.[11] Media reports confirm that in 2010 Erdogan’s government had undertaken measures to ease rampant poverty in the southeast and expand Kurdish cultural freedoms, winning notable popularity among Kurds. In 2009 the state broadcaster inaugurated a Kurdish-language television channel which has been banned since 1991.[12] The Tribunal also observed that in 2013 there was a ceasefire agreement between the Turkish authorities and the PKK which resulted in decreased hostilities between the Kurdish people and the Turkish authorities. Specifically, country information confirms that:
At the end of 2012, peace negotiations between the PKK and the government were initiated which led, in March 2013, to a new ceasefire. On 11 June 2014, the Turkish Parliament adopted a law aiming at a solution of the Kurdish issue. The law encompasses measures to eliminate terrorism, strengthen social inclusion, reintegrate those who leave the PKK and lay down their arms, and prepare the public opinion for the return of former fighters. The law, welcomed by the PKK leader and pro-Kurdish parties, entered into force on 1 October 2014.[13]
[10] DFAT, DFAT Thematic Report – Kurds in Turkey, 2 June 2014 [2.35].
[11] “Newroz, Kurdish New Year in Turkey” March 1998, < “Turkey’s Kurds celebrate Newroz under tight security”, Agence-France Presse, 22 March 2010, < EASO Country of Origin Information Report: Turkey – Country Focus p.51.
The Tribunal finds that in March 2013 the applicant was a [age]-year-old young man with no involvement in Kurdish politics. Having regard to the 2013 ceasefire agreement and the applicant’s profile it does not accept he was a person of interest to the authorities because of his Kurdish ethnicity, because he assisted Syrian refugees or because he took part in the Newroz celebrations in 2013.
Kurdish ethnicity
The Tribunal does accept the applicant is a Kurdish Turk and it must assess whether there is a real chance he will face persecution if he returns to Turkey in the reasonably foreseeable future because of his Kurdish ethnicity (race). In assessing the claims the Tribunal has had regard to DFAT’s current country information report regarding Kurds in Turkey.[14]
[14] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, [3.2]–[3.10].
The applicant is a Kurdish Turk from the majority Sunni Muslim religion. He is not a Kurd from the minority Alevi faith which has historically faced persecution in Turkey.
Country information referred to in the delegate’s decision indicates that Kurdish programming is on state television, Kurdish is regularly spoken in the streets, signs are written in Kurdish and Kurdish-speaking politicians have campaigned in Kurdish areas for Kurdish rights since at least 2011.[15] The delegate notes that Kurdish is commonly used throughout Turkey, with few restrictions on the use of the Kurdish language remaining.[16]
[15] “Turkey Plunges into the Abyss”, Freedom House, 28 July 2015, CXBD6A0DE12040.
[16] DFAT, DFAT Thematic Report – Kurds in Turkey, 2 June 2014, CIS2F827D91265, p.8.
DFAT reports 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 provided support for the PKK. The leading pro-Kurdish parties are the HDP and its regional sister party, the DBP.[17]
[17] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, [3.43].
Human Rights Watch confirms that since the ceasefire 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 2016 in towns in the southeast resulted in displacement of up to 400,000 residents. Amidst heavy clashes, hundreds of residents, police, soldiers and PKK-linked militants died.[18]
[18] <>
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.’[19]
[19] Minority Rights Group International, Turkey, Kurds, Current Issues, updated June 2018.
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.”[20]
[20] US CRS, “Turkey: Background and U.S. Relations In Brief”, 9 November 2017.
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.[21]
[21] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, [3.48].
In summary DFAT assesses that notwithstanding Turkish government efforts to wind back discriminatory restrictions on the public expression of minority identity, 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.
The applicant did not claim to be involved in Kurdish politics in Turkey or Australia. The Tribunal does not accept the applicant is a pro-Kurdish activist and experienced a Kurdish cultural awakening and attended [Organisation 1] in Turkey. The applicant conceded that since he arrived in Australia he has not been involved with [Organisation 1]. The Tribunal does not accept the applicant is a person of interest to the Turkish authorities. The Turkish authorities issued him with a passport [in] 2013 and allowed him to legally depart Turkey and travel to Australia in December 2014. Having regard to the applicant’s conduct since he arrived in Australia the Tribunal does not accept he will engage in pro-Kurdish political activity if he returns to Turkey in the future.
Having considered the applicant’s profile and the country information the Tribunal is not satisfied that there is a real chance that the applicant will face persecution in Turkey in the reasonably foreseeable future because of his Kurdish ethnicity or pro-Kurdish imputed political opinion. The Tribunal finds that his fear of persecution based on his race and political opinion is not well founded.
Military service
The Tribunal questioned the applicant why he objected to performing military service. The applicant said he does not want to kill and he objects to military service which is compulsory. The Tribunal referred the applicant to the delegate’s decision and noted that during his protection interview he stated that he feels that military service is important and that his service commitments would not be a problem if it was not for the discrimination experienced by Kurds from the Turkish population and government. The applicant conceded he was not a conscientious objector. He said that everyone should perform military service for their country but it should not be compulsory.
The applicant said he was able to obtain a deferment from his military service because he completed school and was enrolled in ‘open college’. The Tribunal referred the applicant to a document issued by the Department of Defence dated [in] December 2014 which he provided to the Department. According to that document he was granted a deferment from military service [until] 2019 because he was an international student.
The Tribunal asked the applicant if it was difficult for him to obtain the deferment from military service for such a long period. The applicant maintained that it was not difficult and he took the paper work and was able to obtain a deferment because he could establish that he was still studying. The Tribunal referred the applicant to the delegate’s interview and noted that he claimed that he had to pay a [bribe] and a friend arranged for the deferment of his military service. He claimed he was not sure how it was done or the reasons behind it. The applicant maintained that he obtained the deferment himself and he does not want to perform his military service because of discrimination faced by Kurds in the military.
The Tribunal asked the applicant if he considered paying money to get out of performing his military service. The applicant said at the time he did consider paying money but he could not afford to pay 15,000 TL. After further questioning he conceded that now that he has been working in Australia he would possibly be able to afford to pay the money but he fears that he will be arrested if he returns to Turkey.
According to DFAT’s latest country information report,[22] the Turkish Constitution provides that all Turkish males have the ‘right and duty’ to perform national service. Males between the ages of 20 and 41 are eligible for conscription and must undertake military service of six months for university graduates and 12 months for non-graduates. There are some limited qualifications to this requirement.
[22] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, [3.92].
First, deferments of compulsory military service are possible in some circumstances. For instance, deferments are available for Turkish men who are studying in Turkey or abroad (subject to certain qualifications). It appears that the applicant availed himself of this option because he was studying in Australia, but there are no more deferments that are readily available to him.
Second, there are some exemptions to compulsory military service in Turkey. These include potential conscripts who are not physically or mentally fit for military service, for ‘proving’ their homosexuality and for residing outside the country.[23] Significantly, Turkish law does not recognise the right to conscientious objection to military service.
[23] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, [3.93].
Third, the government has periodically provided options for Turkish men to pay a fee to reduce or waive the period of required military service (‘buy out’ options). It appears none of these options are currently available to the applicant.
The Tribunal has had regard to the Canadian Immigration and Refugee Board (IRB) which provided the following information in June 2014:
Male Turkish citizens are called to report to the military draft branches between July 1st and October 31st of the year of their twentieth birthday. At this time, the process of "final military draft inspection" is initiated for draftees to register themselves for military service. (emphasis added) Those draftees who are not ready for military service have to submit their documents showing the reasons (being a student, being unable to perform military service due to health reasons, being in prison, etc.). If these persons fail to report to their military branches, they become yoklama kaçagi (pre-registration draft evaders) as of November 1st of that year.
‘Draftees who complete their final military draft registrations join the military during the year that they become 21 years old. Those who do not attend to the call of the military branches or those who fail to join the related military training center or unit after completing their registrations become bakaya (post-registration draft evaders).[24]
[24] Canadian IRB, TUR104876.E, 4 June 2014.
The Tribunal notes that the applicant has provided inconsistent evidence regarding how he was able to defer his military service in Turkey. The Tribunal has had regard to the deferment letter and the country information and accepts that the applicant registered himself for military service and was able to personally obtain the deferment of his military service [until] 2019 because of his studies in Australia.
In the circumstances the Tribunal accepts that the deferment letter is a genuine document. The Tribunal finds that a person would only be considered a draft evader in circumstances where the person had not obtained any exemption or legally postponed their military service. In the circumstances the Tribunal finds that the applicant is not a draft evader and will not face any penalties for draft evasion on his return to Turkey in the reasonably foreseeable future.
The Tribunal does however accept that the applicant will at some stage be required to undertake his military service obligations if he must return to Turkey.
Consistent with the guidance of the UNHCR, the Tribunal understands conscientious objection to military service to refer to an objection to such service which derives from principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives. Such an objection is not confined to absolute conscientious objectors, that is, those who object to all use of armed force or participation in all wars, but can encompass those who believe that the use of force is justified in some circumstances but not in others.[25] As stated above the applicant has since conceded that he is not a conscientious objector and does not oppose military service.
[25] UNHCR, “Guidelines on International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees”, 3 December 2013, HCR/GIP/13/10/Corr. 1.
The Tribunal finds that the applicant’s conduct in engaging with the Turkish authorities and registering himself for military service and seeking a deferment appears inconsistent with his claims that he is opposed to carrying out military service. The Tribunal finds the applicant is not a conscientious objector.
The Tribunal finds that the Turkish laws governing conscription and draft evasion are, at face value, laws of general application. It is also satisfied that these are appropriate and adapted to a legitimate national objective of protecting the Turkish state and its people. The enforcement of a generally applicable law in a non-discriminatory manner does not ordinarily constitute persecution for the purposes of the Convention.[26] The Tribunal is not satisfied that there is evidence of selectivity in the enforcement of Turkey’s laws relating to conscription or draft evasion. It concludes that they are therefore non-discriminatory laws of general application. The Tribunal finds that there is no evidence of selective enforcement of Turkey’s conscription laws in the applicant’s circumstances.
[26] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467. This is the case irrespective of whether a particular law is regarded as oppressive or repugnant in our society: see e.g., Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA [1999] FCA 918 (Tamberlin J, 8 July 1999) at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001).

Accordingly, what the applicant must demonstrate to satisfy the refugee criteria is that the punishment feared will be imposed discriminatorily for one of the reasons in s.5J(1)(a) of the Act. The applicant claims that he fears serious harm in the military because of his Kurdish ethnicity (race) and because he is opposed to being sent to fight against his own people (the PKK) in Kurdish areas of the country (political opinion).
In relation to the performance of military service, the Tribunal has had regard to the country information and accepts that there are numerous reports regarding the adverse treatment conscripts receive during their military service.[27] The Tribunal is aware that there are some reports of suspicious deaths and mistreatment of Kurds and other minorities in the Turkish military.[28] The delegate had regard to country information and found however that the adverse treatment is experienced by all conscripts.[29] More recently the 2018 US Department of State’s country report notes:
According to media reports, some military conscripts endured severe hazing, physical abuse, and torture that sometimes resulted in suicide. In May soldiers severely beat a Kurdish-speaking soldier in Van province for speaking Kurdish. Fethi Aydemir suffered serious injury to the skull and internal organ damage as a result. In a separate incident in Gaziantep, a soldier was attacked by fellow soldiers for having a photograph of Selahattin Demirtas, jailed former leader of the pro-Kurdish Peoples’ Democratic Party (HDP), on his smartphone.[30]
[27] Country Policy and Information Note Turkey: Military Service UK Home Office, September 2018.
[28] “Suspicious Deaths Continue in Turkish Army Rudaw”, 28 November 2013, < US Department of State, “Turkey, Country Report on Human Rights Practices 2015”, 13 April 2016, p.8.
[30] USDS, Turkey 2018 Human Rights Report, p.6.
The Tribunal also notes that in its 2014 Progress Report on Turkey, the European Commission reported that ‘Awareness of conscripts’ rights increased, with civil initiatives undertaken to prevent maltreatment, forced excessive physical activity and torture.’[31] The same report also noted that, ‘Parliament’s Human Rights Inquiry Committee started monitoring ill-treatment during military service. Instances of ill-treatment of conscripts still continued to be reported.’[32]
[31] European Commission, “2014 Progress Report on Turkey”, 8 October 2014, p.12.
[32] European Commission, “2014 Progress Report on Turkey”, 8 October 2014, p.50.
In assessing the applicant’s claim, that he will be exposed to serious harm/significant harm in the Turkish military because of his Kurdish ethnicity must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded’ fear of persecution if they have genuine fear founded upon a ‘real chance’ of being persecuted for one of the stipulated reasons in s.5J(1)(a). A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The Tribunal has considered the reports of Kurdish deaths in the military and the recent reported deaths of two Kurdish soldiers in assessing the applicant’s claims. The Tribunal notes however that there are approximately 15 million[33] ethnic Kurds living in Turkey, who make up 15–20 per cent of the population. Out of the millions of Kurds living in Turkey, all eligible male Kurds aged 20 to 41 are required to register for compulsory military service.
[33] Updegraff, R 2012, “The Kurdish Question”, Journal of Democracy, vol. 23, no. 1, January, Project MUSE, pp.119–128; US Department of State, “2012 Country Reports on Human Rights Practices – Turkey”, 19 April 2013, p.40, <>
Having considered the country information and the applicant’s profile the Tribunal is not satisfied that there is a real chance that he will face serious harm or significant harm if he proceeds to do military service in Turkey because of his Kurdish ethnicity.
The Tribunal finds the reported assaults and deaths in the military need to be viewed in context of the large number of Kurds who are part of the Turkish military. The Tribunal also notes that although the applicant claims to speak Kurdish and have experienced an “awakening” of his cultural identity when he left school, he is not a political activist and he has had no association with pro-Kurdish political parties in Turkey or Australia. He admitted at the hearing that he has not been active in [Organisation 1] since 2014. The Tribunal finds the applicant has embellished his evidence regarding his Kurdish cultural awakening and the oppression faced by Kurdish people in Turkey. The Tribunal also notes that he is from the majority Sunni Muslim religion and is not an Alevi Kurd. In the circumstances the Tribunal finds that the chance of the applicant suffering serious harm/significant harm in the military because of his Kurdish ethnicity is remote. The Tribunal also notes that the recent country information confirms that there has been a marked reduction in the level of clashes between the Turkish military and the PKK forces in the southeast compared with previous years.[34] In the circumstances the Tribunal finds if the applicant is to spend time in the military the chance of him being deployed to fight PKK (Kurdish) militants in the southeast is also remote.
[34] USDS, Turkey 2018 Human Rights Report, p.2.
The Tribunal is also guided by the United Kingdom House of Lords decision where it was accepted by the parties on appeal that, in relation to military service in Turkey, ‘…there is no reasonable likelihood that the applicants [Kurdish Turks] would have been required to engage in military action contrary to basic rules of human conduct, whether against Kurds or anyone else’.[35]
[35] Sepet & Another v SSHD [2003] UKHL 15 [26].
While it is possible that the applicant may be subjected to verbal insults and low-level discrimination in the military because of his ethnicity, the Tribunal is not satisfied on the evidence before it that there is a real chance (as opposed to one which is remote) that he would be subjected to discriminatory treatment amounting to serious harm or significant harm in the course of completing military service for reasons of his Kurdish ethnicity.
In conclusion, the Tribunal has had regard to the applicant’s profile as a Kurdish Sunni Muslim and is not satisfied there is a real chance that he would encounter persecution during his military service for reasons of race or political opinion.
The Tribunal has also considered the applicant’s fears he will be imputed as being anti-government as a failed asylum seeker. DFAT’s most recent country information report confirms that it is not a crime for Turkish citizens to seek asylum elsewhere and there is limited information available on conditions for failed asylum seekers who have returned to Turkey. DFAT understands, however, no significant stigma has traditionally attached to this group. Turkey’s sophisticated information databases mean that failed asylum seekers are likely to come to the attention of the government if they have a criminal record or are a member of a group of particular interest, including the Gulen movement, are Kurdish or an opposition political party activist, a human rights activist, or a draft evader or deserter.
As detailed above the applicant departed Turkey legally on a validly issued Turkish passport. He will not be returning to Turkey as a draft evader or conscientious objector. He has had no involvement in pro-Kurdish politics in Turkey or Australia. As detailed above the Tribunal does not accept the applicant has come to the adverse attention of the authorities in Turkey because he took part in Newroz celebrations in 2013, or because he attended meetings at [Organisation 1] or because he assisted Syrian refugees. The Tribunal does not accept the applicant was detained, interrogated and tortured. The Tribunal does not accept a warrant has been issued for his arrest charging him with terrorist-related crimes. In the circumstances the Tribunal is not satisfied there is a real chance the applicant will face serious harm because of his actual or imputed political opinion or because he will be returning to Turkey as a failed asylum seeker in the reasonably foreseeable future.
Mental health
In assessing the applicant’s credibility the Tribunal has taken into consideration the applicant’s claim that he is psychosocially unwell. In support of this claim the Tribunal was provided with correspondence from Dr [B], a general practitioner, dated 15 May 2019. The Tribunal finds the letter of limited assistance. The letter states that the applicant was exposed to torture while being interrogated in Turkey. It states the applicant panics on meeting authority figures, that he has supressed the whole encounter and would not remember what was said in such interviews and finds such situations extremely stressful.
The letter is extremely brief and it is unclear if the applicant has seen Dr [B] on more than one occasion. The Tribunal finds that it is not the role of the medical professional to make findings of fact about the applicant’s claims for protection.[36] Dr [B] is not a psychologist and does not diagnose the applicant with any medical condition. There is no suggestion that Dr [B] has referred the applicant for psychological counselling or prescribed any medication. The Tribunal also finds the claims made by Dr [B] are not consistent with the Tribunal’s findings in this matter. As detailed above the Tribunal does not accept the applicant has come to the adverse attention of the authorities in Turkey or that he was detained, tortured and interrogated.
[36] Resources Manual & Guidelines for Best Practice for Managing & Understanding Psychological Issues Among Refugee Applicants p.4.
The applicant’s wife gave evidence at the hearing. It is evident to the Tribunal that Ms [A] was concerned about the applicant’s well-being and showed commitment and emotional support to him at the hearing. Ms [A] said that the applicant found [a certain day of the week] stressful but was unable to provide further detail. She said that they planned their engagement date to avoid [a certain day of the week]. She confirmed the applicant is often anxious and nervous but he was not seeking treatment and preferred to pray.
The Tribunal also questioned the applicant about his mental health at the hearing. The applicant said that he has not seen a psychologist in Australia or Turkey. He has not been prescribed any medication.
The Tribunal was able to observe the applicant at the hearing and acknowledged that he appeared nervous and anxious at times. The Tribunal accepts he may have felt some anxiety about having to give evidence at the hearing. The Tribunal invited the applicant to adjourn the hearing when needed. The Tribunal finds however that the applicant was able to respond to questions and meaningfully participate in the hearing.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
As the Tribunal has found that the applicant is not a refugee, it has considered whether he is entitled to complementary protection. To meet this provision, the Tribunal must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he will suffer significant harm.[37]
[37] MIAC v SZQRB (2013) 210 FCR 505. See also MZYXS v MIAC [2013] FMCA 13 (Riethmuller FM, 31 January 2013) (upheld on appeal in MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013)) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
As detailed above the Tribunal did not find the applicant to be a credible witness. The Tribunal does not accept the applicant’s claim that he attended [Organisation 1] and came to the attention of the authorities during the 2013 Newroz celebrations, was detained and tortured and was subsequently being picked up by the police every [specified day of the week] and subjected to ongoing torture. The Tribunal does not accept there is a warrant for his arrest and that the police were searching for him in Turkey and have issued an indictment in 2016 charging him with terrorist offences. As a consequence the Tribunal does not accept the applicant is a person of interest to the Turkish authorities who will be arrested if he returns to Turkey in the reasonably foreseeable future.
As noted above, the Tribunal has found the applicant does not have a genuine conscientious objection to military service and nor does the Tribunal accept that he will be perceived as a conscientious objector by the Turkish authorities. Furthermore, the Tribunal does not accept the applicant will evade or illegally avoid military service if he returns to Turkey or voice opinions critical of Turkey’s compulsory military service.
The Tribunal finds that the applicant still has outstanding military service obligations. The Tribunal has considered whether there is a real risk that he will face significant harm if he is required to complete his military service obligation.
On the evidence before it and having had regard to the available country information, the Tribunal is not satisfied that there are substantial grounds for believing that the treatment of military conscripts, amounts to significant harm as that term is defined in s.5(1) and s.36(2A) of the Act. Nor on the evidence before it, is the Tribunal satisfied that there is a real risk that the applicant will be subjected to significant harm completing military service for any other reason. Having found that the applicant is not a conscientious objector the Tribunal finds that the applicant does not face a real risk of ‘significant harm’ in Turkey because he will be prosecuted and punished as a draft evader. His deferment remains active until December 2019.
Having had regard to its findings of fact and the available country information, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…
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.
…
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.
…
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 them 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
…
(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 6004

3 July 2019

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