1612748 (Refugee)

1612748 (Refugee) [2019] AATA 5987 (13 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612748
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Rodger Shanahan
DATE:13 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 August 2019 at 3:34pm

CATCHWORDS
REFUGEE – protection visa – Turkey – religion – Alevi –race – Kurd – imputed political opinion – participation in HDP protests – PKK supporter – ‘exile’, demotion and pay reduction – claimed threats and harm – credibility concerns – lack of documentary evidence – political activity in Australia to ‘construct’ identity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 18 July 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 2 November 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 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 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that he was an Alevi Kurd and that he left Turkey because he was abused, mistreated and discriminated against and he feared for his life. This was all because of his ethnic and religious identity and his political opinion.
He was exiled by his workplace four times for supporting Kurdish political parties and because of his Alevi Kurdish background. He was accused each time of being a PKK supporter even though he denied this.
His first exile was in May 2001 to [District 1] and he had to stay there for a month, then he was exiled to another place for a month and then back to [District 1] where he stayed until October 2002. He was working for [Employer 1] and was a [Position 1] but when he was later exiled to [District 2] until March 2004 and he was demoted to [Position 2]. His salary was also frozen until he retired in July 2006. He was separated from his family as they stayed in [Province 1] so his [Child 1]’s studies wouldn’t be affected.
In April 2010 he was detained for two days after attending a protest in response to an attack on a HDP MP in [Province 1]. He was questioned as to why he attended the protests, beaten and verbally abused and the police threatened him and his family that they would destroy them. There were bruises on his body and saw a doctor. He asked for a report but was refused because they didn’t want to cross the police.
The corner shop would also abuse him and his family for being an Alevi Kurd. They would refuse to sell goods to them, call them atheist and redheads. This happened numerous times. Some of their neighbours also abused them because they were Kurdish Alevi.
He also attended the anniversary protest of the Gezi incident [in] July 2014 in [Province 1]. They carried banners and shouted slogans, and then the police intervened, using water cannons, tear gas and were beating the protestors. He was knocked to the ground by the water cannon and hit by a police baton several times and kicked. Many were detained but he was able to get away.
In July 2014 he received an anonymous phone call from someone claiming to be a police officer. He was accused of supporting the PKK and said they would confiscate all their property and money in the bank. They asked for his bank details or they would destroy his children. He checked at the bank but his money was safe. He believed it was the police and it affected his psychology badly.
[In] January 2015 he was in a café in [Province 1] talking with friends and began talking about HDP in hushed tones. Three to four fascists nearby came and told them that they could not talk about such things and began verbally abusing them, and knocked their table over and forced them out of the café.
AAT Hearing
A witness attended on the behalf of the applicant and he was asked if he had been an eye witness to the events in Turkey and he said that he wasn’t. Another witness also said that she lived with the applicant and wanted to tell the Tribunal what was going on here. Asked if she knew of his experience in Turkey she said that she had experienced the same in Turkey. They were both advised that they would be sworn in as witnesses, but if they were just attesting to his character rather than the events in Turkey they could submit this by letter.
Given there was medical evidence in his file he was asked if he was medically able to attend and he agreed that he was. He claimed that if he returned to Turkey he would be detained by the police. [In] April he had attended a protest in which the MP Ahmed Turk was punched. He was asked if there was any particular, political, social or religious reason he was of interest to the police.
He claimed that he was a Kurdish Alawite and was also supporting HDP even though he wasn’t a member. He agreed that he would be detained by the police because he was an Alevi Kurd supporter of HDP. During the period he worked, he was exiled on four occasions because he was an Alevi Kurd. Asked what he meant by exiled as this meant he was sent away never to return, he claimed that he was sent from one place to another until he retired in 2006 as he didn’t want to put up with the situation.
He was sent from the [employer] to [an] office in [Province 1]. Asked if it belonged to the [employer], he claimed it was the [head office] in charge of [offices] – asked if it belonged to the [employer] or the government he said it belonged to the government.
Asked why he feared serious harm as an Alevi, he claimed that the Alevi are looked down upon by Muslims who believe they can be done away with. Asked to be specific to his personal circumstances given the Tribunal member had access to country information about Kurds and had been to Turkey several times.
He claimed his neighbours disliked him and the local shopkeeper called him a ‘dirty redhead’ (disbeliever) and told him not to come to the shop. It was put to him that name-calling and being refused service by a shopkeeper wasn’t likely to amount to serious harm as it had to be systematic and not just from one or two people. He was asked if he understood serious harm and he agreed that he did, and he had lived these things.
He lived in fear of his life and his house had been shot at, and groups had formed. Asked if he had any information that groups were formed that targeted Alevis as the country information indicated that Alevis lived well enough in Turkey – they weren’t recognised as a separate religion but they could worship freely and participate in most areas of Turkish life including politics and there was a low risk of societal discrimination. He was asked if he had country information that ran counter to this.
He claimed that the Turkish president regards Alevis as terrorists because he is Sunni. Asked again if he had any written country information pointing to the systematic targeting of Alevi in Turkey, he said that in his province the nationalist party was in the majority and they don’t leave HDP alone. He was asked again to focus on his Alevi claim at the moment and whether he had any country information to support his claim.
He simply said that what he had been through was because he was an Alevi Kurd and a HDP supporter. He had suffered financial loss as his salary was reduced to half as well as being exiled. Asked if he had evidence of this, he said he had taken an oath. It was put to him that the Tribunal had to explore his claims and didn’t just take an assertion as evidence. He could for example provide evidence of pay slips and bank statements showing the halving of his wage in accordance with his claim. He said 4 years had passed. It was put to him that his claim had been going for years (since 2015) and the Tribunal would have assumed that he would have gathered this evidence to support his claim.
He claimed that documents are destroyed every five years and it was impossible to find them. It was put to him that he would have provided documents when he applied for the tourist visa and he said he had but he didn’t keep the documents. They had run away as his house had been shot at and his [Child 2] had been detained.
Because he was Kurdish he would be targeted. He was exiled and moved to other organisations – he repeated about his salary reduction. He had completed 25 years’ service in jobs and he retired so he could escape the problems. He was asked if he had any other problems besides the exile and wage reduction. He repeated his claim about participating in protests about Ahmed Turk being assaulted, that he was detained and was hit. He needed plastic surgery as a result.
Asked what occurred, he said the police hit him with his two-way radio and his teeth were loosened and one broken. He had no photographic evidence as the police were there. Asked about when he went home, he said he went to hospital and asked for a report but they didn’t give him one. He was asked if he had any photographic evidence that would support his claim that he had been hit in the face by police, and he said that he didn’t.
Asked if he had any evidence he was a HDP supporter and had attended any HDP protests, he said that he didn’t. Asked if he had any evidence that he interacted with HDP and/or was an active supporter, he said there was no office in [Province 1]. Asked how many HDP activities he attended while in Turkey he claimed it was the one case during the Ahmed Turk demonstration. This was the only activity he attended.
He was asked why he called himself a HDP supporter if, in all the years he had been in Turkey, he had only attended one HDP activity. He said when he heard the HDP leader speak in 1991 he was very impressed by him – it was put to him that he didn’t attend for nine years after this. He said he was sympathetic rather than an active supporter.
His house was shot at he believed at because he believed it was connected to these incidents. Asked how people knew where he lived and decided to shoot at his house (rather than say throw rocks) given his low profile. He claimed that when he was detained in 2010 he gave his address and this made him a marked man. The house was shot at [in] February 2015. He was asked why they waited five years after his detention to shoot at his house.
He said there were other incidents – warnings via neighbours as he was always being threatened. He was asked what the threats were about, and he claimed that they said he was a supporter of PKK. Asked why they would say that, he said that they equated HDP with PKK. It was put to him that he wasn’t a HDP member and even by his own admission he went to a single event in 2010. He repeated that he had received threats telling him to go away.
The photo that he claimed was his kitchen window was examined – he said that the police recovered the bullet. It was put to him that the window wasn’t broken. He said the photo was taken after they had repaired the glass. He was asked if he had photos of where the bullets had lodged in the wall or the ceiling after they passed through the glass. He said that one hit the wall and the other the beam in the ceiling. He said that he didn’t take any photos of these.
It was put to him that the member had been in the army for 26 years and had four operational deployments and had seen lots of bullet holes and based on this experience the photo didn’t show where a bullet had impacted. Whatever impacted on the window frame hadn’t penetrated it. He said it had lodged in the frame. It was put to him that the relative size was all wrong and that it didn’t look like a bullet hole at all. The fact that he would take a photo of a window frame but not of where the bullets had lodged in the house raised concerns in the Tribunal’s mind that the house had never been shot at. He claimed that his [Child 2] had taken these photos and sent them to the applicant.
Asked about his political activism since he had been in Australia, he claimed he had participated in such activities but less since he had been married. They would occasionally go to Nowruz celebrations. The organisation was [a Kurdish organisation] – they were attempting to bring forward people’s rights and bring democracy to Turkey.
Asked if he was a supporter of Abdullah Ocalan he said that he was. Asked if he had supported him in Turkey, he claimed that he was sympathetic to him as he couldn’t say much. But he was a supporter here in Australia. He was told about s 5J(6) and it was put to him that he claimed to be a supporter of HDP but could provide no evidence of this and by his own admission had only attended one demonstration. Yet since he had been in Australia he had attended 10 events and had photographed them all.
The Tribunal was concerned that he had been tactical in his attendance and had photos taken to construct some form of political identity when no such identity existed. In response he claimed that in Turkey it was sufficient to say he was a HDP supporter for people to kill him, so he could only cast his vote to show his sympathy.
Asked about his [Child 2] being detained twice, beaten and tortured and being imprisoned and the fact that the Tribunal had asked for the legal documentation but no one had been presented, he claimed he had been detained [in] January and [in] July and sent to [Location]. Asked again about the legal documentation regarding these events, he claimed that the imprisonment was through a court decision and he was just detained. He said that he had been imprisoned and he said this was different to the others. He was asked again if he had any documentation relating to his detention or imprisonment, he said he didn’t have any because the police detained him and didn’t give him any.
It was put to him that there would have been a trial and therefore documentation; as his father he presumably was seeking legal representation so there would be evidence of talks with lawyers or Kurdish groups recommending legal practitioners etc. The Tribunal was trying to determine whether he was telling the truth.so wanted evidence about the Turkish legal proceedings and his efforts to get his [Child 2] legal representation.
He claimed that he communicated with his [Child 2] and had given the Tribunal some documentation. Asked what this was, and he said it was the court decision. The Tribunal said it had received nothing. He was asked about the legal correspondence that the applicant had been asked for pre-hearing regarding his communications with legal representatives in Turkey about his [Child 2]’s case, and he said that he only spoke with the lawyer once who told him the laws didn’t work there. Asked the name of the law firm, he said it was included in his submission. It was put to him that it was strange that he couldn’t name the law firm representing his [Child 2] in jail but no response was received.
The applicant received a government pension. Asked why someone as persecuted as he claimed still received a pension and he wasn’t sacked instead. The government had also employed him which was strange given he claimed that he was persecuted because he was an Alevi Kurd HDP supporter. He claimed it was his right and he took an exam in 1982. It was put to him that in 2002 and 2004 he said he was employed in the public service, and this was strange if he was discriminated by, and hated the government.
He claimed discrimination was one thing and employment another. He was asked why he didn’t stay in private enterprise and not go to the government. He claimed that it wasn’t Australia. It was put to him that he was fully employed, including by the government even though he claimed to hate the government and was discriminated against by it. he said he was serving the country.
He was asked about the ‘exiles’ he experienced and was asked why this wasn’t just the [employer] seconding him to branches temporarily. If they didn’t like him they could have just sacked him for any reason. The member had served in many locations while in the army, so it was possible that the applicant had just been sent to different branches as part of the normal business practise of the [employer], as opposed to a punishment for his ethnicity. He may also have moved in order to chase promotion. He said this was done for discrimination. He was asked if he had any evidence that this was because of discrimination or whether the Tribunal had to rely on his oral evidence alone – he said he had no other evidence.

Asked whether he had any photographic evidence of attending a Gedzi protest in 2014 or of having been hit by the police, he claimed that he didn’t. Regarding the photos that he had produced of attending events in Australia, he was asked why anyone in Turkey would know or care if he had. There was nothing to identify him and they appeared to be private photos so it was unclear whether anyone would know he had attended anything and if they did, why they would care.
He said that they would be interested if they knew. Asked again how the Turkish authorities would know – he had no profile and wasn’t an organiser. He agreed he was sympathetic to these causes. Asked if he spoke Kurdish he said he didn’t, he was an assimilated Kurd. Asked if his parents taught him, he claimed his father spoke a bit only. It was put to him that it was so strange that he was so committed to a Kurdish political party yet he spoke no Kurdish.
One witness appeared on his behalf and he said he met the applicant in 2016 as he was related to his current wife. He repeated the claim regarding his discrimination and he said while he was told by the applicant and had come from a different city he knew the culture and his own father escaped Turkey in 1970. He claimed it was worse in 2015. The country information regarding Alevi was advised to him that ran counter to his claim and he was asked why he believed the situation was worse 45 years after his father left Turkey.
He claimed he went there every few years and they were told the culture has to be Turkish and the language Turkish. There was no freedom of speech. He was advised that the Australian government had an embassy and a consulate in Turkey and said that the situation was not as he described – he was asked whether there was any written evidence that would support his claim. He claimed journalists who could write were all behind bars.
He claimed that his own cousin was also exiled from branch to branch. He was asked what the difference was between being exiled and being shifted for promotion, backfill, short-term relief by the company. Personnel mobility could be a feature of the company business practice. The term exile was strange. He then claimed the government was trying to foster civil war, and then claimed a cross was put above Alevi businesses and Kurdish Alevis were always targeted.
The witness repeated the shooting and imprisonment claims made by the applicant and believed that the shooting incident would have occurred. Asked if there were many shootings in [Province 1], he said there were gatherings. Asked why he would be shot at as opposed to others. He claimed there were many other incidents but they were hush-hush. The adviser was asked to provide evidence regarding the prevalence of shootings against Alevi-Kurds.
Two of his friends had gone to Turkey and were locked up in prison. Asked if the government had given them assistance he said that he was sure they would. One had been detained two weeks ago and the other two months ago. It was put to him that two Australian citizens locked up would have garnered media attention and he said he thought they would.
He was asked why he hadn’t brought the fate of his two friends to the media’s attention and he said he was afraid his family would be targeted. It was put to him that the media would keep his name out of it and two detained Australians would be newsworthy. He thanked the member for the advice and said that he would do this.
The second witness came in and essentially repeated his claims. Asked how she knew this she claimed that he had told her and what she knew herself. She wanted his application to be successful as she didn’t want to be alone. Her citizenship application had been accepted. She came on a spouse visa and was with her partner for four months before the relationship broke down.
After a break the adviser said his client would try to provide evidence to support his claims. He said that he could now provide the name of the solicitor, but the Tribunal said it wanted a copy of an auditable trail. He requested more time but he was told that the information had been requested prior to the hearing but that it would be accepted if it arrived before the finding was written. He claimed that Kurdish-Alevi people are treated differently and they could be considered as PKK supporters.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a tourist visa [in] September 2015, and applied for a protection visa on 25 November 2015. I have sighted a copy of his passport and accept that Turkey is the applicant’s country of nationality.
The applicant is a [age] year-old married male who claimed that if he returned to Turkey he would be detained, abused, mistreated and feared for his life because he was an Alevi Kurd supporter of HDP. To the extent that it is relevant I have taken into account the most recent DFAT Country Reports on Turkey, and Kurds and Turkey.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the medical evidence saying he suffers from depression and anxiety and I have taken this into account in my finding. He was asked and agreed that he was medically able to participate in the hearing. I also note that one doctor (folio 72) noted the uncertainty of his visa status was one of the stressors he was experiencing so his receipt of this finding could end the uncertainty.
I also lend them little weight in explaining any inconsistencies or implausibilities in the applicant’s evidence. The reports accept in whole or in part the applicant’s accounts regarding his experience of the Turkish government, whereas I have found them to have been fabricated.
Overall, I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claim in order to be granted a protection visa.
Alevi-Kurd Identity and Activism
I am willing to accept that the applicant is of Kurdish heritage and Alevi origins. He provided a letter from [a Kurdish organisation] (folio 71) attesting to this fact, and one from an Alevi representative (folio 16). I do not accept that he was politically active, supported HDP, was targeted, persecuted or discriminated against because he was either Alevi or Kurdish. His account of his political activism and the alleged resultant interest in him lacks much by the way of evidentiary basis or credibility.
Country information indicates that Alevis face a low risk of official or societal discrimination, and while they are not recognised as an official religion in Turkey they can still practice freely. I place greater weight on this then I do on that provided in the statutory declaration from the Alevi representative noted above. I do not accept that he attended a demonstration in July 2014 in protest at the 2013 Gezi Park incident, was hit by batons and water cannon and escaped. This relies entirely on his oral evidence which I have shown lacks credibility (see below).
Country information also indicates that Kurds face societal and official discrimination but that its extent and form depend on one’s location and personal circumstances. Women, those residing in the southeast and real or perceived political activists are at higher risk. The applicant by contrast is a male from the north and was not politically active (see below) and I do not accept that with this profile and his work and education history that there is a real chance that he has or will suffer serious harm in the reasonably foreseeable future.
He was educated, went to university, raised a family and was employed long enough to retire and be granted a pension. There is nothing in his background that would indicate discriminatory behaviour on the part of state or society. I do not accept that he was ‘exiled’ on several occasions by his work because of his Alevi/Kurdish background.
He offered no evidence that he had been ‘exiled’ such as a letter from the company, there is no country information available to the Tribunal nor was any provided by the applicant that such a policy is used against Kurdish Alevi employees anywhere else in Turkey, nor did he explain what the purpose of such an action was. If they wanted to punish him they could have sacked him or re-posted him to a remote part of the country with no date of return.
Instead he did two one-month stints in different branches in 2001. It is entirely (indeed far more) plausible that these short stints would have been a personnel policy decision to cover vacancies, or perhaps to temporarily promote an experienced person. Personnel transfers in order to achieve promotion are very common in many fields of activity. Indeed, he claims that his last position in [Employer 1] was as a [Position 1] which may support the view that he moved to secure a higher position.
His claim that he was then ‘exiled’ to the district [government office] as a [Position 2] lacks credibility. To begin with, he never explained how [Employer 1] could transfer him to a government department as a means of ‘exiling’ him. He produced no written evidence regarding this transfer, nor why he was willing to work for a government who he claimed persecuted him.
I am not satisfied that he was forced to take a pay cut as part of his ‘exile’ and no pay rises until retirement. I have taken into account the letter he claims proves this (folio 139) but am not able to lend it much weight. No original was ever provided and it could have been produced on any home computer so there is no way of proving its veracity. Again, if there was a move to punish him for his Kurdish Alevi identity as he claimed, giving him a government job (rather than sacking him) appears to be a strange way of doing it.
I also do not accept that the applicant was ever politically active, attended a political rally, ever came to the attention of the authorities, was detained or beaten by the police, had his house shot at, or that his [Child 2] was ever detained by the Turkish authorities. There is a lack of credibility and an inconsistency in his account of his political activities.
To begin with, he claimed that he was very impressed when he heard the HDP leader speak in 1991 yet in all that time he had never joined any HDP branch and was simply sympathetic to them. He also claimed to have attended only one demonstration and this was in 2010 (I did not accept that he attended any or was politically active). Yet the report he provided from his mental health social worker based on their interview (folio 120) speaks in pluralities (‘He supported political parties and joined the protests and demonstrations…’).
He was unable to provide any photographic evidence of any political activism in Turkey or indication of social media activity. Nor were there and photos of his alleged wounds he received at the hands of the police. The amount of interest shown in someone so peripheral to the Kurdish political movement that he wasn’t even a member of a political party and attended one event since allegedly becoming interested in 1991 is implausible.
He claimed that the police had his name as a result of his attendance at the 2010 rally, yet he claimed they then decided to shoot at his house five years later despite the fact he had never attended another rally or gone to a single HDP meeting. I have taken into account the photo he claimed showed the mark of one of the bullets in the window frame but lend it little weight. The member is an operationally experienced former army officer and it is not a bullet hole. In addition he claimed that the bullets passed through the glass and lodged in the ceiling and wall, rather than the window frame. He provided no photographic evidence of any bullet impacts inside the apartment.
I also do not accept that the applicant’s [Child 2] has been detained and jailed in Turkey. He was asked for documentary evidence such as summonses, verdicts and the like prior to the hearing but provided none, and at hearing he was asked for a documentary trail between the applicant and his [Child 2]’s legal advisors/lawyers to indicate that the applicant was trying to seek legal assistance for his [Child 2].
Post hearing he provided some untranslated photocopied documents (folios 125-129) that may have something to do with the [Child 2]’s case but again I can lend them little weight. They are untranslated, no originals were provided and they could have easily been produced on any home computer.
Whilst I accept that he has attended some gatherings of [a Kurdish organisation] in Australia, I do not accept that this is or will be known to Turkish authorities. The photos he has provided mostly appear to be private and not ones placed on social media, the applicant is not in any administrative roles and there is no way of identifying him. He doesn’t appear to be actively promoting Kurdish or Alevi political issues on social media and I also note that despite having no photographic evidence of any Kurdish political participation in Turkey he has been rigorous in taking photographs at every opportunity in Australia.
I also do not accept that he began talking about HDP in hushed tones at a café in [Province 1] and were verbally abused by fascists, or that he received anonymous and threatening calls accusing him of supporting the PKK. It again relies on his credibility which I have found to be lacking. I have also taken into account his witnesses testimony but lend them both little weight. The male witness claimed that two of his Australian friends had been detained in Turkey for two weeks and two months respectively but when he was asked to provide evidence that this had occurred or that he had taken this to the press, no such evidence was forthcoming. The female witnesses largely repeated what the applicant had told her and claimed that she wanted his application to be successful so he could remain in Australia with her, so she was hardly an objective witness.
Other Issues
I do not accept that he would be at greater risk of being persecuted because he suffered from the problem of being both Alevi and Kurdish. I have noted previously that he appears to have lived a good life in Turkey, raised a family and received a government pension. He has not been politically active in expressing either Kurdish or Alevi demands and has no profile in his country based on either identity. Having a combined identity does not place him at any greater risk. No country information was provided that supported the adviser’s claim that Kurdish-Alevis are imputed with PKK sympathies.
Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was or would be targeted because of his Alevi faith, was ever or would ever be imputed with involvement in any Kurdish political activities, was ever detained, interrogated or beaten, ever had his house shot at, received threatening calls or that his [Child 2] was arrested and jailed, or would be imputed with PKK sympathies or targeted simply for being an Alevi- Kurd, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do 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 the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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).
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…
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.
..
36Protection 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 5987

13 August 2019

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

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Jurisdiction

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