1613827 (Refugee) - [2019] AATA 4784

1613827 (Refugee) [2019] AATA 4784 (29 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613827
COUNTRY OF REFERENCE:                  Turkey
MEMBER:Christopher Smolicz
DATE:29 July 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Statement made on 29 July 2019 at 10:33am

CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurdish – political opinion – pro-Kurdish – online activities – social media posts – highly critical of President Erdogan, the Justice and Development Party (AKP) and Sunni Islamist extremism – credibility assessment – psychological report – new claim or evidence – not assisted by a migration agent – conduct engaged by applicant in Australia – politically active on social media in Turkey – member of pro-Kurdish political parties – anonymous adverse information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 36, 65, 91R, 423A, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
VSAI v MIMIA [2004] FCA 1602
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Turkey applied for the visas on 16 May 2014 and the delegate refused to grant the visas on 29 July 2016.
The applicants appeared before the Tribunal on 13 May 2019 and 11 July 2019 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicants were represented in relation to the review by their registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1613827 (Refugee)

Details

AGLC: 1613827 (Refugee) [2019] AATA 4784
Case: [2019] AATA 4784
Decision Date: 29 July 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by individuals who claimed to fear persecution in Turkey due to their Kurdish ethnicity and pro-Kurdish political opinions. The applicants' claims were based on their online activities, including social media posts highly critical of President Erdogan, the Justice and Development Party (AKP), and Sunni Islamist extremism. The Tribunal was required to assess whether these claims met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which pertains to Australia's obligations under the 1951 Refugee Convention and its 1967 Protocol.

The central legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for reasons of race (Kurdish ethnicity) and political opinion (pro-Kurdish activism), and whether any feared harm would constitute "serious harm" as defined by the Act. The Tribunal also considered the relevance of the applicants' online conduct in Australia and the potential for adverse attention from Turkish authorities upon their return, particularly in light of country information detailing a crackdown on social media posts and pro-Kurdish activists.

The Tribunal's reasoning was heavily informed by extensive country information from sources such as Human Rights Watch, Minority Rights Group International, the US Congressional Research Service, and the Department of Foreign Affairs and Trade (DFAT). It found that Turkish authorities regularly target individuals with pro-Kurdish political opinions for persecution under broadly framed penal code provisions. Furthermore, the Tribunal noted that recent crackdowns on social media posts criticising the AKP government meant that the applicants' online activities, including "likes" or comments, could lead to charges of terrorism or anti-state propaganda, resulting in lengthy jail sentences. The Tribunal concluded that the applicants' combined profile as Kurds from southeast Turkey, coupled with their social media activity, created a real chance of them coming to the adverse attention of Turkish authorities, leading to serious harm, including arrest, monitoring, harassment, and prosecution.

Consequently, the Tribunal found that the applicants had a well-founded fear of persecution for Convention reasons, that the feared persecution involved serious harm, and that it would be systematic and discriminatory. The Tribunal was satisfied that the applicants met the criterion set out in section 36(2)(a) of the Migration Act. The matter was remitted for reconsideration with a direction that the applicants satisfy this criterion, and as a result, the other applicants, as members of the same family unit, would also be entitled to a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicants were represented in relation to the review by their registered migration agent. CONSIDERATION OF CLAIMS AND EVIDENCE The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of the PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any 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.Issue The issue in this matter is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because of her:· Kurdish ethnicity · political opinion

Decision

Reasons for decision

Human Rights Watch also confirms that since the cease-fire agreement between the Turkish government and the PKK ended on 20 July 2015, the Turkish government launched a crackdown on terrorism with the detention of thousands of PKK supporters. The security operations in the period January to May in towns in the southeast resulted in displacement of up to 400,000 residents. Amidst heavy clashes, hundreds of residents, police, soldiers and PKK-linked militants died.[8][8] >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.[9][9] 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.”[10][10] US CRS, ‘Turkey: Background and U.S. Relations In Brief,’ 9 November 2017 The Tribunal has had regard to country information and finds that as a Kurdish involuntary returnee the applicant will come to the attention of the Turkish authorities at the airport. The Tribunal also finds that since the applicants are registered in the southeast of Turkey, they will be identified as Kurds. As noted above, the Turkish authorities regularly target people who hold pro-Kurdish political opinions for persecutory treatment under broadly framed provisions of the Turkish Penal Code. DFAT confirms that: 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… Kurdish or opposition political activist, a human rights activist.[11] Social media in Turkey[11] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, 51 at [5.28]The Tribunal has regard to recent country information and finds that the Turkish authorities have detained and prosecuted large numbers of people over social media posts criticising the AKP government and its policies.[12] Reports confirm that in the wake of the failed July 2016 coup and the subsequent referendum giving the president sweeping new powers, online websites, blogs, and social media have emerged as a centre of opposition. As a consequence the removal of content from a news site or social media is an increasingly common tool used by the Turkish government.[13] For example, Al Jazeera reported in July 2016 that Turkish prosecutors were investigating people who ‘have alleged on social media that a July 15 coup attempt was a hoax carried out by the government, the country’s justice minister said’.[14][12] Human Rights Watch Turkey: Crackdown on Social Media Posts March 27, 2018 [13] Reuters Institute Digital News Report 2017 Turkey Supplementary Report, Servet Yanatma[14] Al Jazeera, ‘Turkey investigates those who say coup attempt was hoax,’ dated 24 July 2016,>The Tribunal finds that the recent crackdown on social media posts by the Turkish authorities is directly relevant to the applicant’s claims for protection. By way of example the Tribunal notes that the German foreign office has specifically issued statements warning citizens about using social media in Turkey. The German foreign office has reported that “A simple ‘like’ on Facebook or comments on social media can lead to charges of terrorism and anti-state propaganda, … which in turn can lead to years-long jail sentences.” It was further reported persons with close personal relations with Turkey, have been refused entry since the beginning of 2017 without being given reasons. Affected persons had to wait in custody for several hours to several days and their mobile phones were taken from them and searched for stored contents and contacts. It was reported “although the reasons for refusing entry are generally not communicated a connection with anonymous denunciations cannot be ruled out. It should be noted that a high proportion of the rejected have Kurdish or Turkish-Alevi family background.”[15] The German foreign ministry has also given travel advice to people traveling to Turkey who may have attended meetings organised by groups banned in Turkey that they risk being detained.[16][15] German foreign office warns citizens about using social media in Turkey, 25 October 2018 German Foreign Ministry tightens travel advisory for Turkey, DW, 10 March 2019 >Having regard to the applicant’s combined profile as a Kurd from southeast Turkey the Tribunal finds that there is a real chance that the Turkish authorities at the airport will examine her social media profile and discover her posts which are pro-Kurdish, highly critical of President Erdogan, the AKP and Sunni Ismailism extremism.DFAT reports that: According to human rights defenders, pro-Kurdish activists who made comments on social media that authorities found offensive were now likely to be identified as PKK supporters and faced much harsher punishments than in the past: instead of one to two months in prison, activists now faced years’ long charges on broad terror offences, and family members were also likely to come under official scrutiny.[17][17] DFAT, DFAT Country Information Report – Turkey, 9 October 2018, 29 at [3.47].The Tribunal finds that there is a real chance the applicant’s Kurdish ethnicity and political engagement with the pro-Kurdish political parties on social media will bring her to the adverse attention of the authorities in Turkey in the reasonably foreseeable future. As detailed above, country information confirms that the Turkish authorities arrested and imprisoned thousands of citizens in the aftermath of the July 2016 coup attempt on the grounds of alleged links with terrorism, particularly from those groups seen as a possible threat to the government. Specifically, the UK Home Office confirms that Kurds appear to have been specifically targeted by the authorities.[18][18] Minority Rights Group International, Turkey, Kurds, Current issues, updated June 2018 [2.4.4]In conclusion, the Tribunal finds that the applicant’s claims are consistent with country information referred to above which confirms that people with imputed pro-Kurdish political views such as the applicant, face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution. In the circumstances, looking to the reasonably foreseeable future, the Tribunal finds there is a real chance that the applicant will suffer serious harm from the Turkish authorities on her return and that she may be charged with being a member of a terrorist group. The Tribunal finds that the applicant’s fear of persecution because of her Kurdish ethnicity and her pro-Kurdish political opinion is well-founded.On the basis of the evidence, the Tribunal accepts the applicant’s ethnicity (race) and political opinion are the essential and significant reason for the harm she fears. Therefore her fear of persecution is for a Convention reason. Accordingly, the requirements of s.91R(1)(a) are met.Having regard to the non-exhaustive list in s.91R(2) of the type and level of harm that will constitute ‘serious harm’ for the purposes of s.91R(1)(b), the Tribunal accepts that the persecution feared by the applicant involves serious harm, including significant physical harassment or ill-treatment and a threat to her life or liberty. It follows that the requirements of s.91R(1)(b) are also met.In relation to the requirements of s.91R(1)(c), the Tribunal is satisfied from country information set out earlier that the feared persecution by the current Turkish authorities would involve conduct which is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicant for the Convention reason of her Kurdish ethnicity and pro-Kurdish political opinion. It follows that the requirements of s.91R(1)(c) are met in this case.As the Tribunal has accepted that the applicant has a well-founded fear of persecution from the Turkish authorities, it accepts that the feared persecution is not localised and that it is not therefore necessary for the Tribunal to go on and make findings as to whether it would be reasonable for the applicant to relocate.In all the circumstances, the Tribunal accepts that there is a real chance that the applicant will face serious harm now or in the reasonably foreseeable future if she returns to Turkey. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a).Member of family unit The Department advised the Tribunal that in October 2017 the applicant’s relationship with her husband had broken down and the applicant was living separately to her husband. The Tribunal questioned the applicant and her husband about their relationship at the hearing. The second named applicant said that the applicant’s mental health had deteriorated since they arrived in Australia and this had an impact on their relationship and they lived apart for a while. The applicants advised the Tribunal that they had since reconciled and they are committed to each other and their daughter. The Tribunal has had regard to s.5F of the Act and is satisfied that the first and second named applicants are married and have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing and that the applicants now live together with their dependent child.The Tribunal is satisfied that the second and third named applicants are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. As the first named applicant satisfies the criterion set out in s.36(2)(a), it follows that the other applicants will be entitled to a protection visa provided they meet the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa.For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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