1615354 (Refugee)

[2019] AATA 5959

1615354 (Refugee) [2019] AATA 5959 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615354

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Christopher Smolicz

DATE:2 August 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 02 August 2019 at 3:40pm

CATCHWORDS

REFUGEE – protection visa – Turkey – political opinion – progressive political views – conscientious objector – compulsory military service – voluntary returns to Turkey – deferment/exemption options – draft evader – religion – Alevi – treatment of Alevi conscripts – decision under review remitted

LEGISLATION

Migration Act 1958, ss 36, 65
Migration Regulations 1994, Schedule 2

CASES

Alamdar v MIMA [2001] FCA 1244
Applicant A v MIEA (1997) 190 CLR 225
Lama v MIMA [1999] FCA 918
Lama v MIMA [1999] FCA 1620
VSAI v MIMIA [2004] FCA 1602
Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Turkey, applied for the visa on 7 October 2014 and the delegate refused to grant the visa on 8 September 2016.

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

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10. In accordance with Ministerial Direction No. 56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT Country Information Report Turkey, 9 October 2018) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Issue

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

    ·     of his Alevi religious faith

    ·     of his political opinion

    ·     he is a conscientious objector

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

    Background

13. The applicant is [an age] year old Turkish national who was born in [Country 1]. At the time of his birth his family lived in [Country 1] due to his father’s employment at [an agency]. His father is now retired from the [workforce]. His mother works as [an occupation].  In [year] the applicant obtained [a qualification] in Turkey. Between August 2006 and January 2009 the applicant and his former partner operated a [business] in Anatalya.

14. [In] May 2009 the applicant travelled to Australia as a dependent on his former partner’s student visa. In August 2010 he was subsequently granted a further student visa. On 16 April 2013 he was granted a [further] visa as a dependent. The visa was valid until 16 October 2014.

15. Since arriving in Australia the applicant voluntarily returned to Turkey in July 2013 and August 2014.  He applied for the protection visa on 7 October 2014, over five years after first arriving in Australia.

16. 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.

    Summary of substantive claims

17. The applicant’s claims are detailed in a statement dated 7 October 2019. He claims to have experienced discrimination in Turkey due to his Alevi faith. He has not been involved in any political activities either in Turkey or Australia but defines himself as a “leftist” and believes in egalitarianism, democracy and that all people should be respected. He claims he is a conscientious objector and refuses to complete his military service commitments in Turkey due to his political opinion and Alevi faith. He refuses to give or take orders as it is in conflict with his personality. He believes all life is sacred and does not like violence and believes the military is a tool of the government to further their own aims. He believes that all armed forces should be abolished around the world and replaced with the United Nations, International Courts or other similar institutions. He refuses to pay fees to avoid his military service obligation because the funds will benefit the military. Even if he was required to take part in the military service, he fears being targeted by the government and Turkish society due his Alevi faith.

18. He supports the principles of a secular state brought to Turkey by Mustafa Kemal Ataturk. He claims that although the Republic of Turkey is a secular state in reality Sunni Islam controls the government and targets Alevi people. He claims he was unable express his views as a [occupation] (although he has never worked in that field). He travelled to Australia to avoid military service and improve his chance of obtaining employment in Turkey.

19. He returned to Turkey in July 2013 and August 2014 to see if the political environment has improved for conscientious objectors and Alevis.

    Tribunal hearing

20. The applicant said that he travelled to Australia with the intention of improving his English language skills and to wait and see if the political situation would improve when Turkey joined the European Union (EU).

21. The applicant said his parents were Alevi Muslims and he grew up as an Alevi. He has not however taken part in Alevi religious worship since arriving in Australia.

22. The Tribunal asked the applicant if he was involved in politics in Turkey. He said he was not a member of any political party.  He supported the HDP [People’s Democracy Party (Turkish: Halklarin Demokratik Partisi)] because it believes that the public should be in good relations with each other and the HDP’s goal was to peacefully solve the Kurdish problem.

23. When questioned if he had any conflicts with the Turkish authorities, the applicant said that the only problem he experienced with the authorities was when he was about 17 years old and was questioned by the police about a public transport ticket. He did not have any problems with the authorities when he departed Turkey.

24. He does not want to return to Turkey because he does not want to perform his compulsory military service and fears discrimination because of his Alevi faith.

25. The Tribunal invited the applicant to explain why his Alevi faith was a problem in Turkey. The applicant said the Alevi faith was not accepted by the authorities, Alevi followers are not allowed to pray and he experienced discrimination because of his religious beliefs.

26. The Tribunal noted that he has been living in Turkey for most of his life and asked the applicant to explain what prompted him to leave Turkey and travel to Australia. The applicant said that the problems experienced by the Alevi people have been around all the time. He was hopeful the situation would have been addressed when Turkey was negotiating to join the EU but the situation got worse.

27. The Tribunal explained to the applicant that it must assess his claims looking to the reasonably foreseeable future. The Tribunal referred the applicant to DFAT’s country information report which confirmed that Alevi communities suffered significant societal violence in the past however DFAT is not aware of any instances of significant societal violence against the community in recent years.[1]

    [1] DFAT Country Information Report Turkey, 9 October 2018 [3.24].

28. The Tribunal invited the applicant to explain who he fears will cause him harm if he returns to Turkey. The applicant said he is afraid of Turkish Sunni Islamist extremists.

29. He claims the army used to be secular and is becoming more extreme. He claims it will be difficult for him to find employment in the government sector.

30. The applicant also claims he does not want to return to Turkey because he is a conscientious objector. He provided the following correspondence (Turkish and English language translation):

    ·     Letter issued by the Turkish Ministry of Defence confirming that his application to defer his military service was approved until [October] 2015 because he was working in Australia.

    ·     Letter issued by the Turkish Ministry of Defence confirming that his previous deferment of military service ceased [in] December 2015.

    ·     Online documents from the Turkish e-government website (turkiye.gov.tr) stating that he needs to contact his nearest military recruiting office. 

31. The applicant claims he has no other deferment options available to him if he returns to Turkey.  He claims he was able to delay his military service because his brother was carrying out military service in 2009.  He objects to paying  fees to get out of performing military service because he does not want his money to be associated with killing.

32. The applicant said that in [year] (when he turned [age] years old) he had completed his studies and went to the military authorities to verify his academic certificate and he had to pass a physical examination (roll call) and was allowed a deferment from military service until [year]. He said the deferment period was longer than the normal two year deferment because his brother was in the military at the time. When he was in Australia he approached the Turkish consulate and obtained a second deferment until December 2015 because he was on a working visa in Australia.

33. The Tribunal asked the applicant to explain why he viewed himself as a conscientious objector. The applicant said that the Turkish people were promised that there would be a civil option to military service when Turkey was negotiating to join the EU. The promise did not eventuate. He said that he objects to military service on political grounds, because of “inner peace” and “his beliefs”.

34. In relation to his political views the applicant said that the person who is in charge in Turkey (President Erdogan) is a dictator and he is using the military and police for his personal benefit. By way of example he claims Erdogan was caught selling weapons to IS terrorists in Syria. He claims the army has been used to attack Kurdish people during elections. He claims Erdogan has scared people and made them fearful of death.

35. The Tribunal asked the applicant if he has taken any action to voice his opinions as a conscientious objector. The applicant said that he has not done anything about it.

    Well-founded fear of persecution

    Military service

36. The applicant claims to fear being detained and charged by Turkish authorities because he is a conscientious objector.

37. It is reported that the Turkish Armed Forces is 50% professional, with 200,000 conscripts. Every year about 300,000 Turkish men above 18 years of age are recruited for 12 months of service. About 1.9 million men have had their service deferred because of studies and 3 million have applied for deferral for various other reasons. About 650,000 are considered to be avoiding service in violation of the Military Service Act. [2]

    [2] Young Turks with enough cash seek to skip military service, July 4, 2018 Al-Monitor  >

    According to DFAT’s latest country information report,[3] 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. Significantly, Turkish law does not recognise the right to conscientious objection to military service.

    [3] DFAT Country Information Report Turkey, 9 October 2018, 3.92.

38. The Tribunal finds that the Turkish laws governing conscription and draft evasion are, at face value, laws of general application.[4]

    [4] 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).

39. DFAT report that those who oppose mandatory military service on religious grounds may face charges in military and civilian courts, with potential prison sentences of between two months and two years. The first known case of conscientious objection was lodged in 1989. The number of cases has steadily risen, however a media report in August 2016 estimated the total number to be in the thousands. Activists formed a Conscientious Objection Association (COA) in 2014, with the support of leftists, religious Muslims, Kurdish militants, pacifists, and feminist allies. As with other human rights defenders, the ability of COA to conduct activities has been restricted under the state of emergency. Prosecutions against conscientious objectors have continued: international human rights observers reported that, in August 2017, 68 Jehovah’s Witnesses faced prosecution for objecting to military service [DFAT 3.96].

40. DFAT reports that authorities treat draft evasion and desertion seriously: those who attempt to evade military service face prison time. Article 63 of the Law on Absentee Conscripts, Draft Evaders, Persons Unregistered [for Military Service] and Deserters (1930) provides for penalties for those evading military service in peacetime ranging from one month’s imprisonment for those who report to the authorities within seven days, to up to thirty-six months’ imprisonment for those who are arrested after three months. Article 63 can be applied multiple times, with a separate case for each time the evader or deserter refuses to carry out military service; and evaders and deserters may also be charged under Articles 87 or 88 of the same law, for refusal to take the military oath, to wear a uniform, or to obey orders [DFAT 3.97].

41. 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.[5]

    [5] 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.

42. For the following reasons the Tribunal is not satisfied that the applicant is a conscientious objector. Firstly, the Tribunal would not expect a person who claims to be a conscientious objector to engage and cooperate with the Turkish military and register themselves for military service and seek deferments, thereby preserving their obligation to serve in the military in the future. The correspondence provided by the applicant illustrates that he engaged with the Turkish authorities in [year] when he had completed his studies in Turkey and a second time in Australia in June 2013 after he was granted a [temporary] visa which enabled him to work in Australia.

43. Secondly, the Tribunal finds that the applicant chose to voluntarily return to Turkey on two occasions despite his objection to compulsory military service. The applicant claims he was returning to Turkey to ascertain if the conditions had improved. The applicant also claimed his military service was deferred therefore he could return to Turkey without fear of being conscripted. The Tribunal has considered the applicant’s explanations but does not find them convincing. As discussed with the applicant at the hearing there are numerous human rights reports and media articles that can be accessed in Australia which would provide information on Turkey’s human rights and political situation without having to risk returning to Turkey and coming to the attention of the authorities.

44. The country information also confirms that the Turkish authorities maintain a sophisticated national database of military service, making evasion for an extended period almost impossible. DFAT reports that an interaction with authorities, such as being stopped for a traffic infringement, can lead to a cross-check of an individual’s military service record. In addition, the bar code in biometric passports is linked to the national database, meaning authorities can identify and detain draft evaders on their return to Turkey.[6]

    [6] DFAT Country Information Report Turkey, 9 October 2018 [3.95].

1. The Tribunal finds that there was a risk the applicant would come to the attention of the authorities on his return and be questioned about his deferment, the purpose and duration of his stay in Turkey and Australia. In the circumstances the Tribunal finds that the applicant’s decision to return to Turkey and risk coming to the attention of the authorities is inconsistent with his claim that he fears returning to Turkey because he is a conscientious objector.

2. Thirdly, in assessing the applicant’s claim that he is opposed to compulsory military service, the Tribunal notes that the applicant has never actively and openly voiced his objection to compulsory military service in Turkey or Australia.

3. In conclusion for the reason set out above, the Tribunal finds the applicant is not opposed to compulsory military service because he is a conscientious objector. The Tribunal does however accept that the applicant fears that he will suffer serious harm in the military because of his Alevi faith.

4. The Tribunal accepts that the applicant is subject to conscription and that he has unfulfilled military service obligations if he returns to Turkey.

   Deferment / exemption from military service

5. Next the Tribunal has considered if the applicant would be able to obtain a deferment or exemption from compulsory military service if he was to return to Turkey in the reasonably foreseeable future.

6. First, deferments are available for Turkish men who are studying in Turkey or are working or studying abroad (subject to certain qualifications). It appears that the applicant availed himself of this option because he was working in Australia.

7. 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.[7]

   [7] DFAT Country Information Report Turkey, 9 October 2018, 3.93.

8. The Tribunal was provided with psychological reports dated 25 May 2016 and 6 May 2019 diagnosing the applicant with major depressive disorder, panic disorder and generalised anxiety disorder. The psychologist states that the applicant’s symptoms have been caused by the applicant’s opposition to compulsory military service, the current political and religious tension in Turkey and past history of repression.

9. The Tribunal questioned the applicant if he considered raising his mental health as an option to deferring his military service. The applicant said it would not be accepted because he needs to be assessed by a military hospital in Turkey and his psychological reports would not be accepted in Turkey.

10. In post hearing submissions the Tribunal was provided with a report from a Turkish lawyer (the report) on Turkey’s conscription laws and the operation of the exemptions relevant to the applicant’s particular circumstances.

11. The Tribunal has considered the report and finds that the applicant does have the option of applying for an exemption from military service on the grounds of his mental health if he was to obtain a report from a psychiatrist addressing the Turkish Armed Forces Medical Skills Regulations the Regulations. It however unlikely the exemption would be accepted by the Ministry of Defence in Turkey, in circumstances where his psychological condition is directly attributed to the applicant’s opposition to the Turkish authorities.

12. Third, the government has periodically provided options for Turkish men to pay a fee to reduce or waive the period of required military service (buyout options).  For example, in January 2016, President Erdogan ratified the law reducing the fee that Turkish expats are required to pay for exemption from military service. Turkish citizens who have been living outside of Turkey for at least three years or have worked for at least three consecutive years outside of the country can be exempt from military service in exchange for EUR 1,000. Citizens need to be at least 38 years old to benefit from the law.[8] The Tribunal finds that the applicant is currently 34 years old and therefore does not qualify for this option. Recent reports confirm that the 2018 buyout option for male citizens born on 1 January 1994 or earlier reduces the term of service for beneficiaries to 21 days in return for a fee of TRY 15,000. The Tribunal notes however that the deadline for applying for the buyout option (including payment) was 3 November 2018 and is no longer applicable to the applicant. [9]

    [8] EASO Country of Origin Information Report: Turkey – Country Focus 2016 p.37

    [9] Implications of the Recently Enacted Buyout Option for Military Service under the Turkish Labor Law, April 11 2019  >

    The Tribunal discussed with the applicant if he would consider a buyout option to get out of military service. The applicant said he thought about this option but is opposed to paying money for something he does not believe in. He does not want to give money that will be used to buy guns and kill people.

13. The Tribunal accepts that currently none of the deferment / exemption options appear to be readily available to the applicant.

    Draft evader

14. Next the Tribunal has considered if the applicant would face punishment in Turkey because he has not completed his compulsory military service and is a draft evader.

15. The Tribunal has had regard to the Immigration and Refugee Board of Canada IRBC which provided the following information about military service in Turkey:

    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. 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).[10]

    [10] IRBC, TUR104876.E, 4 June 2014. 

16. According to the report provided by the applicant males who attend roll call but fail to report on the required date are called “late”. It was submitted that the applicant would be listed as “late” since 1 January 2015 and would be obliged to report to the nearest military recruitment office. It was submitted that for “late” recruits, there is a significant possibility of legal action being commenced with the result of the applicant being placed in custody.

17. The report states that such action is currently not possible because the applicant lives in Australia, however on his return he will be arrested at point of entry and taken to the nearest military recruitment centre. His suitability for military service will be assessed and he will be kept in custody. If he is assessed as unsuitable for military service he will be exempt and a jail sentence will not apply, otherwise he will be jailed after serving in the military. The report suggests that if a person carries documents from the Turkish Consulate General in Australia when he arrives in Turkey he will be deemed as handing himself in so he will be sentenced for a term of imprisonment between four months and two years. If he fails to report himself to the Consulate before going to Turkey, he will be arrested at point of entry and jailed for a term between six months and three years.

18. In June 2014, the IRBC stated:

    According to Turkish military law (and corroborated by officials at both the Turkish embassy in Ottawa and the Canadian embassy in Ankara), Article 63 of the Law on Absentee Conscripts, Draft Evaders, Persons Unregistered [for Military Service] and Deserters, draft evasion in peacetime carries the following penalties which can be applied multiple times for those who continue to refuse to undertake military service:

    §One month imprisonment for those who report to the authorities within seven days;

    §Three months for those who are arrested within seven days;

    §Three to twelve months for those who report within three months;

    §Four to eighteen months for those who are arrested within three months;

    §Four to twenty-four months for those who report after three months; and

    §Six to thirty-six months for those who are arrested after three months. [11]

    [11] IRBC, TUR104876.E, 4 June 2014. 

19. The IRBC also reported that Turkish citizens who are living abroad and do not complete or legally postpone their military service would be sent to the nearest military service centre upon their arrival in Turkey and may face charges of draft evasion.[12] The Tribunal notes however that the penalties stipulated under Article 63 do not apply where the draft evader has an ‘acceptable excuse’. [13]

    [12] Immigration and Refugee Board of Canada 2010, TUR103457.E, 26 May 2010.

    [13] Turkey: Law of 1930 on Absentee Conscripts, Draft Evaders, Persons Unregistered [For Military Service], and Deserters,  22 May 1930, available at:

20. The Tribunal finds that the applicant has cooperated with the Turkish authorities in past to the extent that he obtained deferment of his military service since he has been working in Australia. In the circumstances the Tribunal finds that the Turkish authorises would be well aware that it is impossible for the applicant to attend to his military service while he has been living in Australia. Having found that the applicant is not a conscientious objector the Tribunal finds that, in the event of his return to Turkey, the applicant would not express an opinion or act in such a way as to cause himself to be imputed with an opinion that is opposed to compulsory military service or to military service more generally.

21. Having concluded that the applicant is not a genuine conscientious objector, the Tribunal does not accept that he will repeatedly refuse to perform military service or that he will be prosecuted under Article 318 of the Penal Code of Turkey for prompting, encouraging or spreading propaganda to deter people from carrying out military service.

22. The Tribunal finds that the applicant’s study and subsequent employment in Australia has prevented him from undertaking his military service and is a significant mitigating factor in assessing his conduct as to whether he would be prosecuted in Turkey for draft evasion. In the circumstances the Tribunal is satisfied that the applicant would have an acceptable excuse and would be able to be subject to prosecution and punishment as a draft evader.

    Alevis in the military

23. Next the Tribunal has assessed the applicant’s claim that if he returns to Turkey and he is forced to complete military service he will face serious harm in the military because of his Alevi faith.

24. The Tribunal accepts that the applicant’s parents are followers of the Alevi faith and as a consequence the applicant was raised as an Alevi and belongs to the Alevi branch of Islam.

25. Country information confirms that “Alevis believe they have been continuously persecuted throughout their history, including by modern Turkish governments. They tend to align themselves with Kemalist secularism, and their relations with the ruling Justice and Development Party (AKP), which follows an ideology of Sunni Islamist populism, have been fraught. For instance, Turkey has failed to recognize the Alevis as a religious minority or grant them the rights they are entitled to under treaties that Turkey has signed, a fact that caused the European Court of Human Rights to rebuke the government in 2014.”[14]

    [14]  ‘Turkey and the Alevis’, Foreign Affairs, 05 January 2017, CXC90406620645.

26. DFAT’s current Country Information Report on Turkey reported, ‘No laws prevent Alevis (or other religious minorities) obtaining public sector employment or serving in the military, but no Alevis currently serve in senior government positions, including as governors or police chiefs. Some Alevis claim to have been denied promotion in the public sector due to their religious identity. DFAT does not have any specific information relating to the treatment of Alevi Kurds in the military and is of limited assistance [DFAT 3.23].

27. The Tribunal finds that there are numerous reports regarding the adverse treatment conscripts receive during their military service in Turkey.[15]  Specifically, in relation to people from the Alevi faith the Tribunal notes that in 2013 there were reports of the following suspicious deaths and mistreatment of Kurds and Alevis in the Turkish military: 

    ANKARA, Turkey – Activists and the families and lawyers of many Turkish soldiers who reportedly committed suicide or were killed in accidents doubt the official version of the deaths, noting that many of the dead were either minority Kurds or Alevis.

    “Most of the soldiers who lost their lives in the army were Kurdish or Alevis. Their families do not believe that it is a coincidence that all those accidents happen to their children,” said Ergin Dogru, head of the Dersim branch of the pro-Kurdish Peace and Democracy Party (BDP).

    “The deaths in the army are not investigated sufficiently and the military courts do not give just rulings about the cases,” Dogru complained to Rudaw.

    The Turkish Ministry of Defence says that 2,221 soldiers lost their lives in suicides or accident deaths between 1992 and 2012.

    Last year, out of the 42 soldiers who were officially reported to have killed themselves, 39 were Kurdish and one was Armenian, according to Mazlum Orak, a lawyer with Mazlum-Der (Organization of Human Rights and Solidarity for Oppressed People). ^[16]

    [15] Country Policy and Information Note Turkey: Military Service UK Home Office, September 2018; US Department of State, ‘Turkey, Country Report on Human Rights Practices 2015’, 13 April 2016,

    [16] ‘Suspicious Deaths Continue in Turkish Army Rudaw’, 28 November 2013, <

28. In May 2013, the Turkish military denied claims that Alevis were subject to discrimination in the armed forces. According to an English-language Turkish newspaper report, the military denial was due to a claim ‘made by Atilla Kart, a senior member of the Republican People’s Party, who said around 700 personnel of the Air Forces Command had been victims of discrimination’.[17]

    [17] Military rejects claims of Alevi discrimination’, Hurriyet Daily News (Turkey), 21 May 2013, CX314930.

29. More recently in 2018 the US Department of State’s Human Rights report made the following observations about the treatment of Kurds in the Turkish military. It is unclear however from the report if the deaths related to Kurds who are from the Alevi faith.

    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.[18]

    [18] USDS, Turkey 2018 Human Rights Report, p.6.

30. In 2018 the Suspicious Deaths and Victims Association had recently announced that 2,500 soldiers have lost their lives in the last 22 years in Turkey. The provinces with State of Emergency practices are in the lead in suspicious soldier deaths. Specifically, it was reported by the organisation’s chairperson that the suspicious soldier deaths occur most frequently in Kurdish provinces and that “Many people suffer torture during their military service, and many are killed arbitrarily. There is a lot of evidence to document this, but as the military courts are not completely just, our cases don’t produce results. Most of the deaths occur in Eastern and Southeastern parts. And most soldiers who die there turn out to be Kurdish or Alevi.”[19]

    [19] 500 Soldiers died suspiciously in four years: ANF News 11 January 2018, >

    The Tribunal finds the reported of deaths of Alevi conscripts serving in the Turkish military concerning.  The Tribunal finds that it is also necessary to have regard to the current political climate in Turkey following the 2016 failed coup and the brutal and disproportionate reprisals by the Turkish authorities.

31. In accessing the applicant’s claims the Tribunal is conscious that the applicant voluntarily returned to Turkey in July 2013 and August 2014 and did not experience problems from the authorities. The Tribunal notes however that the applicant returned to Turkey before the attempted 2016 coup and that country information confirms that the situation for Alevis has greatly deteriorated since this time.[20] For example, Minority Rights Group reported in 2018 that “Alevis remain politically marginalized in the country, with limited representation in official positions of power. Following the attempted coup in 2016 and subsequent actions by the government against its perceived opponents, numerous journalists were imprisoned and media outlets were closed, including most of those broadcasting and publishing on Alevi culture.” [21] Reports confirm that following the attempted coup the government detained thousands of military officers who are perceived to be anti-government. Significantly, reports confirm a great number of detained soldiers and officers were Alevi.[22]

    [20] IRBC ‘Turkey: Situation of Alevis, including political and religious rights; treatment of Alevis by society and authorities; state protection (June 2012-May 2015),’ 12 June 2015, TUR105167.E Council on Foreign Relations,‘Turkey and the Alevis’, 5 January 2017. Minority Rights Group (updated June 2018) IRBC, ‘Turkey: The situation and treatment of Kurds and Alevis after the coup attempt in July 2016, including in the large cities (July 2016–January 2017),TUR105723.FE.’ 26 January 2017.

32. The Tribunal finds that the Turkish authorities have arrested and imprisoned thousands of citizens in the aftermath of the July 2016 coup on the grounds of alleged links with terrorism, particularly sections of the Turkish military who were seen as a possible threat to the government.

33. Country information confirms that Turkey’s anti-terror law provides a vague yet broadly worded definition of terrorism, which can result in terrorism charges against any member of an organisation which commits criminal activity with the aim of changing the attributes of the republic. The anti-terror law has been used by the Turkish authorities to criminalise the non-violent expression of political views. These provisions have been relied on heavily to prosecute individuals opposed to the government.[23] The UN special rapporteur on freedom of expression and opinion has also reported in 2017 that the Turkish government has failed to comply with international law by failing to ensure that the offences introduced under the state of emergency were ‘narrowly defined and applied according to strict implementation of the standards of necessity and proportionality’.[24]

    [23] DFAT Thematic Report, Kurds in Turkey, 2 June 2014.

    [24] Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on his mission to Turkey, 21 June 2017, A/HRC/35/22/Add.3, 5 at [17].

1. In conclusion, the Tribunal has had regard to the country information and finds that Alevis are one of the minority groups that are currently being monitored by the Turkish authorities because they are viewed as a potential threat.[25] As stated above recent reports confirm that following the attempted coup the government detained thousands of military officers who are perceived to be anti-government. Significantly, reports confirm a great number of detained soldiers and officers were Alevi. Having regard to the current political climate in Turkey and the applicant’s psychological condition the Tribunal finds that there is a real chance that the applicant as a person of Alevi faith serving in the military may be subjected to serious harm because of his religion and/or his imputed political opinion. The Tribunal finds that the applicant’s fear of persecution based on his religion and political opinion are well-founded.  

   [25] US CRS, ‘Turkey: Background and U.S. Relations In Brief,’ 9 November 2017, Minority Rights Group International, Turkey, Kurds, Current Issues, updated June 2018. 

2. The Tribunal accepts that the persecution feared by the applicant involves serious harm, including significant physical harassment or ill-treatment and a threat to his life or liberty.

3. The Tribunal is satisfied from country information set out above that the feared persecution by the Turkish authorities would involve conduct which is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicant for the Convention reason of his Alevi faith and imputed political opinion.

4. 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.

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

   DECISION

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

   Christopher Smolicz
   Member