1618640 (Refugee)

[2019] AATA 5921

1618640 (Refugee) [2019] AATA 5921 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618640

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Paul Millar

DATE:29 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 August 2019 at 12:57pm

CATCHWORDS        

REFUGEE – protection visa – Turkey – threats, abuse and attacks on applicant and family by brother of former wife in Turkey, and to applicant by former wife and another brother in Australia – credibility – improbable and inconsistent evidence – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASE

SZBYR v MIAC (2007) 235 ALR 609

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 on 21 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Turkey, applied for the visa on 7 April 2015.[1]  The applicant appeared before the Tribunal on 9 August 2019 to give evidence and present arguments.  The hearing was conducted with the assistance of a Turkish speaking interpreter who appeared by video conference.  The applicant’s wife and children attended the hearing to provide emotional support to him.  The applicant advised that they would not be giving evidence. Due to their young age and to enable the applicant to give evidence without being distracted, the children and the applicant’s wife remained outside the hearing room.

   [1] The Tribunal's finding on citizenship is based on copies of pages from the applicant’s Turkish passport which appear at folios 11-12 Department file.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.     

6. 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). 

   Mandatory considerations

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] DFAT has issued a country information assessment for Turkey, but it is not relevant to the grounds on which this review has been determined.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that, because of the failure of his marriage to his former spouse, one of her brothers in Turkey seeks to harm him.[3]  The Tribunal holds concerns about the applicant’s credibility.  Before discussing them, it is necessary to recite the evidence given by the applicant at the hearing as to the grounds of his protection claims.

   The applicant’s evidence at the hearing

   [3] The applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; the applicant’s statement dated 6 April 2015; his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened and his evidence at the Tribunal hearing.

9. To the Tribunal, the applicant said that in February 2013, in Turkey, he married his former wife (‘AA’).  He met her through her brother BB.  The applicant and BB had been close friends for many years.  BB operated a business selling [products] from premises in the same street where the applicant worked as an [occupation].  It was by this means that the pair met each other. The applicant said that he and BB were very close and over the time they knew each other he would see BB approximately three times each week.  When asked what they did on the occasions that they met each other, the applicant said that they would talk and also go to picnics.  He said that BB came from a ‘big family’ that had lots of connections. In this respect, the applicant was aware that BB had a [relative] who was a judge, a [relative] who was a deputy police chief and another [relative] who worked in the courts.

10. In August 2012, AA came to Turkey and BB asked the applicant to go with him to the airport to meet her.  When asked why BB wanted him to do that, the applicant said that he was not doing anything at the time. The applicant just decided to go along with him.  When asked if he had ever been to the airport with BB prior to that, the applicant said that he had not. He repeated his evidence that their workplaces were close together and he just had that interaction with him. After AA’s arrival, BB asked the applicant to drive them to another town where a funeral was being held. He wanted the applicant to share the driving on what would be a long journey.

11. In this brief period, the applicant and AA began to get to know each other.  They returned to the applicant’s native city and commenced seeing each other from that time.  The applicant would see AA at the workplace of BB, but, they would also go to each other’s respective family homes.  In September 2012, AA returned to Australia but the couple remained in contact through social media and the telephone.

12. The Tribunal asked the applicant when he and AA decided that they would marry.  In response, the applicant said that it was a quick decision because BB told the applicant that the couple had to marry or stop seeing each other.  He then said that the decision to marry was made at the end of 2012.  AA returned to Turkey in February 2013 for the marriage ceremony.  Just prior to that time, the applicant learned that AA had been married before and subsequently divorced.  He said that, ultimately, for the marriage to be able to proceed they had to have the consent of BB.

13. The Tribunal asked the applicant when BB first spoke to him about his relationship with AA.  In response, the applicant said that this occurred from the time the two commenced seeing each other, when AA was still in Turkey.  In August and September 2012, BB started telling the applicant that he had to marry AA or the couple had to stop seeing each other.  AA’s sister, CC, who lives in Australia, spoke for the couple, but, BB was a violent person.  When asked what he said to BB in response to this demand to marry or separate, the applicant said that he could not say anything to him. He wanted to ask for AA’s hand in marriage and it was CC who supported them.  She also provided financial support to BB.  When asked why she was providing him with financial support, the applicant said that BB had three wives and also had problems with drug addiction. 

14. The Tribunal asked the applicant what BB said to him after AA returned to Australia in September 2012.  In response, the applicant said that BB continued to demand that the applicant marry AA or end their relationship.  He said that BB attacked him in this period but, also, CC broke up arguments. The applicant then said that BB hit him and that this was the behaviour of strong powerful people in Turkey.  The Tribunal asked the applicant when this incident occurred.  In response, the applicant said that BB hit him approximately one or two months before the couple decided to marry, the incident occurring at the applicant’s workplace.

15. The Tribunal asked applicant whether he was assaulted by BB on more than one occasion.  In response, the applicant said that he was beaten by BB on more than one occasion.  He said that this was because BB could not handle the idea of the applicant marrying AA.   When asked why that was the case, the applicant said that it was because he was a friend of BB and BB thought that it was wrong for the applicant to be in a relationship and marrying his sister.  The Tribunal asked the applicant why, in that event, BB would be telling him to actually marry AA.  In response, the applicant said that it was because, in Turkey, that situation would bring embarrassment to BB’s family.  He then said that it was an embarrassment that the applicant was marrying the sister of a close friend.

16. The Tribunal again asked the applicant why, in that case, BB would then tell him to actually marry AA if this was something that would bring embarrassment to BB and his family.  In response, the applicant said that people knew that the applicant and AA had been seeing each other.  He then said that BB threatened that if the pair did not marry there would be bloodshed and he would intervene in the affairs of the applicant’s own family.  The Tribunal asked the applicant to confirm that before he married AA, her brother BB had attacked him a number of times.  In response, the applicant said that was correct. He said that there was no going back and he somehow had to get married. He thought that if he did not do that then things would get out of control.

17. The Tribunal put to the applicant that in his written statement of 6 April 2015 he made negative remarks about BB’s character.  In this respect, in his written statement, the applicant said that, in addition to being rich and powerful and running a [business], BB took drugs, was erratic, beat his three wives, illegally lent money to others and harmed those who did not repay those loans.  To the Tribunal, the applicant said that all of those claims were correct. In addition, to the Tribunal, the applicant said that BB would also attach one of his wives to the back of his motor vehicle and drag her along the ground.

18. The Tribunal was concerned that the applicant would be willing to be a close friend of such a person.  When this was put to him, the applicant said that, on the outside, BB seemed alright, then the applicant found out things.  The Tribunal asked the applicant when he found out about these negative aspects of BB’s character and behaviour. In response, the applicant said that this happened in 2011. It was at this time that he discovered that BB had tied his wife to the back of his motor vehicle and dragged her around on the ground. At this time, he found out about BB’s illegal lending practices and drug involvement.

19. He said that he actually told BB’s family about this involvement and that made things worse for him.  The Tribunal asked the applicant why he would be talking to BB’s family about this.  In response, the applicant said that he had no involvement with drugs and felt that it was his obligation when he saw somebody harming himself.  When asked in what respect things became worse for him, after telling BB’s family about their son’s drug problem, the applicant said that BB would suggest that they go to the airport and if the applicant refused then BB would fight with him.

20. When asked why BB would make these requests of him, the applicant said that BB felt alone and the drugs had a bad influence on his behaviour.  The Tribunal asked the applicant why he was happy to be friends with BB knowing, at the same time, about his violent and illegal activities.  The Tribunal also asked the applicant why he was willing to travel to the airport with BB in August 2012 in the circumstances he had described.  In response, the applicant said that BB’s family knew that the applicant was a good person and they asked the applicant to look after BB. They lived in a small city and it was easy for people to contact one another.

21. The Tribunal asked the applicant whether, after marrying AA in February 2013, BB made any further threats to him.  In response, the applicant said that it occurred many times.  He would tell CC, in Australia, about this and she told the applicant that he should come to Australia to be safe.  When asked what threats were made to him after his wedding and while he was still in Turkey, the applicant said that BB loved fighting, was violent and so he made threats.  When asked what these threats were about, the applicant said that BB did not want the applicant to have contact with his own family.

22. Because of those demands, the applicant’s family to told him to go and live in a separate place. Even so, BB came to that place, raided it, took off his belt and began beating the applicant with that, to the extent that the applicant had to remain in hospital for one day to recover from the injuries that he sustained.  When asked why BB behaved this way toward him, after marrying AA, the applicant said that it was due to the drugs he was taking, the illusions the drugs caused and it was also because BB was unhappy that the applicant had married his sister.  In addition, BB had made various applications to come to Australia but they were all unsuccessful.  He was therefore unhappy that the applicant had the opportunity to come to Australia based on his marriage to his sister.

23. In addition to going to the applicant’s home and attacking him there, in this period after the applicant’s marriage and before he came to Australia in August 2013, BB also went to the applicant’s workplace and created fights there.  The applicant then said that approximately three months after he came to Australia, BB went to his family and accosted his mother causing her to have a [medical condition] and need treatment in hospital.  The Tribunal understood the applicant to be saying that this incident occurred in either late 2013 or, at the latest, in January 2014. 

24. When asked if BB ever returned to the family home again, the applicant said that he did not.  He said that, by that time, he had fled from the family of his former wife. He asked for help from a translator who told AA’s family members in Australia about that. He then said that those family members told him that he did not speak English, he could not report to the police and that they would kill him. After giving that evidence, the applicant said that the threat to kill was made by AA’s brother, DD, who also lives in Australia.  The Tribunal asked the applicant when that threat was made and he said that DD did this approximately four months after the applicant arrived in Australia (therefore, the Tribunal assumes, in approximately January 2014).

25. To the Tribunal, the applicant said that approximately one month after his arrival in Australia, AA began to speak to him in an abusive way.  The Tribunal asked the applicant why she began behaving that way from that particular time.  In response, the applicant said that it was because BB had ‘intervened’ and asked her to make a choice. He then said that AA’s family in Australia had put pressure on BB as they owned the family’s assets in Turkey.  When asked what BB had done that caused AA to begin abusing him not long after his arrival in Australia, the applicant did not directly respond.

26. He said that he knew about BB’s affairs in Turkey, but BB did not want anyone to know about that.  BB did not want CC, who was sending money to him, or the other members of AA’s family, to know what he was doing in Turkey.  The Tribunal asked the applicant whether he was saying that BB’s family members in Australia were unaware of his violent and criminal behaviour in Turkey. In response, the applicant said that they had no idea about that and just thought that BB bought and sold things.  When again asked what BB did that caused AA to talk to him in an abusive way, the applicant said that BB would ask his brother here, DD, whether the applicant was saying anything bad about him. He then said that the family of his former wife was complicated.

27. The Tribunal again asked the applicant why AA began speaking to him in an abusive way not long after his arrival in Australia. In response, the applicant said that in the minds of her family he was an [occupation] who could possibly start a business.  He married his former wife but was trying to meet the demands of her family. He could not meet them and so had problems.  When asked what these demands were, the applicant said that they would find work for an [occupation], the applicant would perform that work, but, they would underpay him. If he refused to do the work they would argue with him.

28. The Tribunal asked the applicant when he and AA stopped living together.  In response, the applicant said that they lived together for approximately four months. After that he went to stay in a [business] owned by CC.  He stayed there for another three or four months before fleeing due to an attack.  He then said that in fact he had been working in that [business] since his arrival in Australia.  When asked how he was treated in this business, the applicant said that when CC, or her partner, was present there were no problems. Once they were absent, then the problems would start.  When asked who threatened or caused him problems in this business, the applicant said that it was DD.

29. When asked what DD said or did to him in this respect, the applicant said that DD would tell him that if he did not listen to him and if he went to Turkey, BB would kill him and no one would find him.  The Tribunal asked the applicant when it was that DD began behaving towards him in this fashion.  In response, the applicant said that this began after AA herself began speaking to him in an abusive way.  The Tribunal asked the applicant why, after separating from AA, he would then continue living and working at this [business] where he was receiving threatening behaviour.

1. In response, the applicant said that he could not speak English, he did not know the law, he did not have anything to do and had nowhere to go. He was afraid that the government might send him to prison or back to Turkey.  When asked why he actually stopped living and working in the [business], the applicant said that DD attacked him. After that, CC told him that he should flee and she would ‘manage’ DD.  

   Credibility concerns

   Concerns about the highly improbable nature of aspects of the applicant’s account

2. The Tribunal holds concerns about a number of aspects of the applicant’s account which are highly improbable.  The Tribunal was concerned about the applicant’s account of being a close friend of somebody, who the applicant knew, from late 2011, was violent, engaged in criminal activity and whose behaviour was erratic. It struck the Tribunal as highly improbable that the applicant would then intensify this involvement by entering into a relationship with this person’s sister, a step that brought on more erratic behaviour from this individual.  The applicant’s claims that he maintained a relationship with BB because that person’s family asked him to, do not resolve the Tribunal’s concerns.

3. The Tribunal also finds highly improbable the applicant’s evidence about the attitude of BB towards his relationship with BB’s sister.  Originally, BB’s attitude was that the couple should marry or cease their relationship.  However, as discussed above, the applicant claimed that BB threatened that if they did not marry there would be bloodshed.  At another stage of his evidence he said that BB beat him because he could not cope with the idea of the applicant marrying his sister and that was due to embarrassment it would bring to BB. He claimed that BB raided his house and beat him because he was unhappy about the couple marrying.  This was even though it was his consent that was ultimately required for the marriage to go ahead.

4. More specifically, the Tribunal had difficulty accepting that BB would threaten the applicant to actually marry AA if the relationship and marriage would bring embarrassment to BB and his family.  When this concern was put to him, the applicant referred to culture and tradition in Turkey. He then said that people lose their lives because of these traditions. People in his native city who had separated years ago still got killed.  The Tribunal finds the applicant’s responses unpersuasive. Even if others were aware of the relationship and that concerned BB, the Tribunal still could not accept that BB would try to force the applicant into a marriage that, at the same time, brought embarrassment to BB. 

5. The Tribunal also had difficulty accepting that the applicant would have been willing to enter into this marriage in the circumstances described.  Those circumstances include the fact that the applicant was marrying the sister of a man he knew to be violent, irrational and engaged in criminal activity, with good connections to the authorities.  The applicant would have well-known that BB’s connections could affect his ability to obtain protection for any harm inflicted on him by BB.  The circumstances also include the behaviour of this person directed at the applicant from the time that his relationship with AA commenced, that behaviour, in essence, being threatening.  In his earlier evidence, the applicant said that these threats were to either end the relationship or get married.

6. Given that option, it struck the Tribunal as highly improbable that the applicant would not have actually taken the opportunity to be free of those threats and actually not proceed with the relationship.  The Tribunal makes that comment even allowing for whatever desire the applicant may have had to marry AA.  When this concern was discussed with him, the applicant did not give direct responses. He referred to a family having a number of members, some of them being different, before then saying that the father of his former wife was married to seven different women.  The applicant then said that CC convinced him that if he came to Australia he would not have any problems.[4] She told him that BB would not be able to interfere with him as he was too far away. He then said that once he arrived here it was all too late.  At another stage, he also said that if he did not marry things would get out of control.

   [4] He gave the same explanation when the delegate explored this issue with him.

7. The Tribunal was not persuaded by any of these responses from the applicant.  Even if the sister of his former wife made the claimed representations about being safe in Australia, the Tribunal still remains concerned about the applicant’s willingness to enter into a marriage that, on his account, from the time the relationship commenced, brought about threats and harm from the brother of his former wife whom the applicant was well aware was violent, involved in criminal activities and also connected to the authorities impeding whatever protection they could provide him. 

8. The Tribunal also had difficulty accepting the applicant’s account that the woman he had married in February 2013 and who sponsored to him to come to Australia in August that year would, so soon after his arrival in Australia, change her attitude toward him entirely and begin abusing him, the marriage, on his account, ending soon after.  The Tribunal has set out earlier in this decision its exchange with the applicant about this and it is clear from his responses that he simply could not advance a plausible reason for this sudden change in AA’s attitude.  When this concern was again put to him, the applicant said that CC was always positive towards him. On the other hand, BB acted in a negative way and so there was both positive and negative. There were no fights or conflicts while CC was present.

9. None of those claims resolve the Tribunal’s concern on this aspect of the applicant’s account.  The Tribunal can allow for the possibility that the attitudes of parties to a marriage can change as circumstances change.  However, the applicant’s account of his former spouse committing to a marriage with him only a few months after they first met, remaining in contact with him after that time, supporting his application for a visa to come to Australia and, just one month later, behaving in an abusive fashion towards him, struck the Tribunal as being highly improbable.

10. Finally, also highly improbable, is the applicant’s claim that after ceasing to live together with his wife, for another three or four months he lived and worked at a [business] where, not long after his arrival in Australia, he had also been receiving abuse and threats.  His claims about doing this because he did not speak English and, in essence, that he had no other options, do not persuade the Tribunal to overlook this concern.  Overall, there are a number of aspects of the applicant’s account that are highly improbable and for which he has not provided any satisfactory explanation.  While, considered in isolation, any single one of these concerns might not be determinative of his credibility, when considered together, they comprise an account that is, overall, highly improbable and which does not bear the ring of truth.

    Delay in applying for protection

11. The Tribunal asked the applicant how he came to apply for protection in April 2015.  In response, the applicant said that someone helped him. He said that he was seeing someone for help and at that time he was taking tablets to be able to sleep.  He referred to telling people his problem who would then pass on that information to the family of his former wife. Finally, he went to a [workplace] and the [worker] told him about applying for protection.  He then said that he did not speak English and so could not talk about his problems with others.

12. The Tribunal put to the applicant that there had been a significant delay on his part in applying for protection.  The Tribunal put to the applicant that, according to his account, by May 2013, the basis on which he had been able to come to Australia and remain here, namely his marriage, no longer existed.  Further, according to his account to the Tribunal, at the same time that his marriage ended or in early 2014, BB had gone to his family in Turkey threatening them in relation to him.  The Tribunal put to the applicant that it had difficulty accepting that if he was genuinely in fear of harm in Turkey he would apply for protection so long after that fear arose.

13. In response, the applicant said that he could not find anyone to help him.[5] People he consulted such as translators, lived in the same area where the family of his former wife lived and that posed risk to his safety. The Tribunal put to the applicant that he could also have approached the Department for assistance. In response, the applicant said that he did not know where or to whom he should go. He said that it was his [worker] and then a [medical professional] he consulted who explained what to do.

    [5] The applicant's explanations to the Tribunal for the delay on his part in applying for protection were broadly the same as those he put forward when that issue was put to him by the delegate.

14. The Tribunal finds the applicant’s evidence about his efforts to find out about applying for protection to be most unconvincing. While the applicant may not have wished to consult people who lived in the same area as the family of his former wife, in fear of what information those people might relate to them, he could easily have made enquiries with suitable professionals elsewhere.  He could easily have made enquiries with the Department but gave no convincing explanation for his failure to do so.  Overall, the applicant did nothing about seeking protection for the harm he fears until a chance meeting with a [worker] from whom he claims to have learned about that. 

15. The Tribunal does not accept that the applicant was unable to take proper steps because of his English-language capacity or any other reason he has put forward for this.  The Tribunal finds that the delay on the applicant’s part in applying for protection, following the failure of his marriage in late 2013 and the removal of the very basis on which he could remain in Australia, reflects poorly on his credibility and strongly suggests that he does not genuinely fear harm in Turkey.  While, to the delegate, the applicant claimed that he was unaware of his unlawful status following the breakdown of his marriage to AA, and also claimed that CC told him in early 2014 that his visa status was resolved, the applicant would have been well aware that the basis on which he had been able to come to Australia and potentially remain here no longer existed.  

16. At the very least, he would have known that his status and ability to remain in Australia was precarious and, notwithstanding what he was told by CC or any other family member of AA, he would have known that he needed independent professional advice as to what he should do.  The applicant did not advance any satisfactory explanation for his failure to obtain that advice.  At the hearing, the applicant submitted a receipt issued by a firm of lawyers who the Tribunal understands practice in the area of migration law and who the applicant appears to have consulted in mid-March 2015.  Even assuming that the applicant approached those lawyers at that time for advice about applying for protection, that is still well after the failure of his marriage and this does not explain or excuse the delay on his part in applying for protection.

    Inconsistent evidence about a raid by BB on the applicant’s family home

17. As stated above, the applicant told the Tribunal that in either late 2013 or early 2014, BB went to his family home in Turkey accosting his mother causing her to have a [medical condition] and for which she needed treatment in hospital.  The Tribunal put to the applicant that when interviewed by the delegate he said that this incident occurred in January 2015 a few months before he applied for protection.  When asked by the Tribunal to account for this discrepancy in his evidence as to when this significant event occurred, the applicant said that when he was interviewed by the delegate he had been receiving psychological treatment. He had trouble remembering exact dates and it was caused by his experiences.

18. The Tribunal rejects these responses from the applicant because, to the delegate, the applicant originally said that this raid on his family’s home by BB in which his mother was harmed, occurred in January 2014.  It was further in the interview, when asked by the delegate why BB would approach his mother as to his whereabouts, when he could have learned of that from his own family in Australia, that the applicant said that in fact this particular incident occurred in January 2015. The delegate confronted him a number of times with his earlier evidence and the applicant maintained that this incident took place on the later date, January 2015.

19. The applicant’s evidence about an important event in his account in which, according to his claims, his mother was seriously harmed, is inconsistent.  His claims that this is due to his mental state are rejected.  The applicant can reasonably be expected to consistently recall when his mother was accosted by an individual in Turkey whom the applicant claims to fear.  His failure to do this reflects poorly on his credibility.[6]

    Concerns posed by the divorce decision

    [6] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

20. At the hearing, the applicant submitted a ‘decision’ purportedly issued by a court in Turkey in mid-December 2013.  According to this document, in late November 2013, the applicant applied to this court for an order dissolving his marriage to AA.  In the beginning of this document, reference is made to violence between the applicant and AA causing them to cease living together. The document refers to the evidence of two witnesses one of whom states as follows (verbatim):

    “The party were living in Australia. I was witness that while they were living in Turkey they were in violence. [AA] always creating the violence. She swearing him saying that (as dog, dishonours) and they start to fight each other. So also I heard that they had a violence in Australia [too].”

21. The Tribunal put to the applicant that the evidence of this witness that the couple were in conflict in Turkey before the applicant came to Australia was inconsistent with the applicant’s evidence that, in fact, it was one month after his arrival in Australia that the conflict between him and AA commenced, she, at that time, beginning to speak to him in an abusive fashion.  In response to this concern, the applicant said that the reference to violence or conflict between the couple should be a reference to this taking place in Australia.  He then said that AA told BB that she had thrown him out of the marital home.  He said that there were witnesses to the phone calls between AA and BB which they could hear.

22. The applicant’s explanations are not convincing.  They do not resolve the fact that a witness in this divorce proceeding has referred to conflict between the couple both in Turkey and in Australia.  That is inconsistent with the applicant’s account that in fact the conflict arose after the applicant came to Australia.  This discrepancy reflects poorly on the applicant’s credibility.

23. The Tribunal asked the applicant whether AA’s family was involved in obtaining this order for a divorce.  In response, the applicant said that ‘the two brothers’ were involved.  The Tribunal asked the applicant why they would want the divorce to proceed, in the light of the applicant’s earlier evidence that one of AA’s brothers, namely, BB threatened the applicant to marry AA.  In response, the applicant said that originally they did not want him to obtain a divorce but once he ‘fled’, they could see that the marriage would not work. They wanted him to go back to Turkey so that BB could kill him.

24. The Tribunal asked the applicant why these brothers originally did not want the divorce to proceed.  In response, the applicant said that it was because CC said that things would get better.  These brothers were afraid of CC, but, once she turned her back, they would do bad things. He then referred to applying to stay in Australia on the basis of his marriage and then said how there were restrictions on his ability to work meaning that he could not afford to buy food and AA’s family would say that it was none of their business.

25. Again, the Tribunal finds all of these claims from the applicant to be unconvincing and unsatisfactory.  The Tribunal remains concerned that the applicant was subjected to threats in Turkey to marry his former wife. It struck the Tribunal as highly improbable then that members of the same family would, subsequently, be supportive of the marriage being dissolved.  His claims about AA’s brothers, originally not wanting the divorce to proceed, but, then, soon after, supporting the divorce, did not bear the ring of a truth. 

26. To the delegate, the applicant’s evidence was to the effect that certain of AA’s family members wanted the divorce to proceed as if he and AA lived together for a certain period that could give him rights over property.  However, that does not explain the applicant’s evidence to the Tribunal that, originally they did not want the divorce to proceed.  At another stage of his evidence to the delegate, he referred to AA’s family being angry that he did not remain married for the requisite period of time to gain permanent residence.  The Tribunal was also not persuaded by that claim which, at any rate, is inconsistent with the applicant’s evidence that, at some point, they wanted the marriage dissolved.

27. The Tribunal put to the applicant that according to this divorce order he had produced, in late November 2013 he had applied for the divorce suggesting that he had ceased living with his former wife by that time. In response, the applicant said that he stopped living with his former wife in October 2013.  He then mentioned being under pressure and struggling to recall dates.  The Tribunal put to the applicant that this account was inconsistent with his evidence in his written statement that, in fact, he stopped living at the same home as his former wife in ‘late December 2013’.  To the delegate, the applicant also said that he stopped living with his former wife at approximately the same time.

28. When asked to account for these discrepancies, applicant said that the account he gave the Tribunal was correct. He did not live with his former wife after their marriage was dissolved. He then went to live at the [business] operated by another family member for a number of months. He stopped living there after AA’s brother, DD, attacked him. He was told, after that incident, to flee for his safety and he had no involvement with anyone.  While the applicant makes these claims, in his written statement and to the delegate, he indicates that he stopped living with his former wife in December 2013 (evidence he initially gave the Tribunal).

29. This is an important discrepancy because, according to those earlier accounts, while the applicant was applying for a divorce, a divorce he also said that AA’s family members eventually supported, he was still living with her.  Such a scenario struck the Tribunal as highly improbable.  While he later advanced to the Tribunal a more probable account that he stopped living with his wife before he applied for the divorce, overall, his evidence about when they stopped living together is inconsistent.  Even though the claimed event occurred some years ago, it is a significant event and one about which he can reasonably be expected to give a consistent account.  His failure to do so reflects poorly on his credibility.

    Conclusions on credibility

30. Considered cumulatively, the Tribunal’s concerns about the applicant’s credibility cause the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s evidence about his friendship with an individual in Turkey engaged in violence and criminal activities.  The Tribunal is willing to accept that the applicant married his former wife AA and that they are no longer married.  However, because the applicant is not a witness of truth, the Tribunal has no credible evidence about the relationship between the applicant and his former wife, the reasons why the couple married and the reasons why they are no longer married.

1. The Tribunal acknowledges the divorce decision produced by the applicant purportedly issued by a court in Turkey, but, in the respects discussed above, the contents of this document are actually inconsistent with the applicant’s evidence to the Tribunal, to the delegate and also in his written statement.  The contents of this document do not overcome the Tribunal’s concerns about the applicant’s credibility and while the Tribunal is willing to accept that the applicant and his former wife are no longer married, the Tribunal does not give evidentiary weight to this particular document that he has submitted.

2. To the Department and the Tribunal the applicant submitted medical evidence and the Tribunal has taken this into consideration in assessing the applicant’s credibility.  In this respect, to the Department, the applicant submitted a brief report dated [March] 2015 from a doctor and a statutory declaration made [in] April 2015 by a psychologist.[7]  Both health professionals assert that the applicant was maltreated in his marriage with AA and for which he is under stress.  Neither of these professionals assert that they actually witnessed the events that the applicant claims occurred after he came to Australia, but, rather, they appear to be reporting claims that the applicant has made to them.  The fact that the applicant has approached these professionals and made those claims does not overcome the concerns that the Tribunal holds about his credibility which significantly discredit him as a witness.  Accordingly, the Tribunal remains of the view that the applicant’s claims about the way he was treated in relation to his marriage with AA are false.

   [7] See folios 6-7 of the Department file.

3. To the Tribunal, the applicant, at the hearing, submitted a bundle of documents comprising receipts issued by a medical centre and pharmacy, a receipt issued by a psychologist and the various prescriptions.  These documents indicate that the applicant has received medical treatment and consulted a psychologist, but, nothing more.  That information does not persuade the Tribunal to overlook its concerns about the applicant’s credibility.  At the hearing, the applicant said that because of his mental state he was unable to remember things properly.  However, he appeared to be well able to comprehend the Tribunal’s questions at the hearing and the proceedings generally.  He had a meaningful opportunity to participate in the hearing and give evidence.  The Tribunal is not satisfied that his mental state can explain or excuse the Tribunal’s concerns about his credibility.

4. At the hearing, the applicant provided the telephone number of a person he said had assisted him as a psychologist.  Although he had given a contact telephone number for this person, he said that he had been unable to make contact with her. He told the Tribunal that she could give evidence as to his mental state at the time he was going through the difficulties from his first marriage.  Given the concerns that the Tribunal holds about the applicant’s credibility, the Tribunal was not satisfied that there was a need to take evidence from this person over the telephone. The Tribunal was not persuaded that evidence from this person as to the applicant’s mental state whenever she dealt with him, would overcome the Tribunal’s concerns about his credibility. 

5. So far as the applicant claims that his mental state has been caused by his experiences in relation to his marriage with AA, the Tribunal rejects those claims as being false.  Further, the applicant has not claimed protection on the basis of his mental state.  However, the Tribunal told the applicant that it would allow him a period of two weeks to provide a written statement from this psychologist containing the evidence that he would like the Tribunal to receive from her.  The Tribunal told the applicant that it would consider the contents of that statement and then determine whether or not it is necessary to reconvene the hearing to take evidence from her.  The applicant agreed with that proposal and said that he would also, within that period, try to provide a written statement from a doctor he had consulted. 

6. The applicant did not submit any further evidence from a psychologist.  He submitted a report dated [August] 2019 from a doctor who recites the applicant’s claims about his former marriage and the maltreatment that he claims to have received.  The doctor states that, as a result of these matters, the applicant is stressed, has poor sleep and has difficulty recalling the events of abuse.  The terms of this report make clear that the doctor is simply reciting claims made to him by the applicant. For the reasons given above, those claims are disbelieved by the Tribunal.  Any difficulty the applicant has in recalling past events is due to the fact that his claims about those events are false.  If the applicant is stressed and not sleeping well, the Tribunal has no credible evidence as to the cause of that, beyond possibly, the concern that most applicants have about resolution of their immigration status in Australia.

7. In response to the hearing invitation, the applicant stated that his current wife would give evidence as a witness to what happened to him following the dissolution of his first marriage. However, at the beginning of the hearing, the applicant advised that his wife would not be giving evidence and was present to provide emotional support only.  It is questionable just what value any evidence from the applicant's wife would have afforded, given that she did not witness the events that he claims took place in Turkey before he came to Australia.  The tenor of his evidence about the manner in which he was maltreated after he came to Australia, in his marriage to AA, took place within that marriage and between him and certain members of her family.  It is highly likely that his current wife, had she given evidence, would have been relating only what he has reported to her.  Simply having her give evidence to that effect would not have overcome the significant concerns that the Tribunal holds about the applicant's credibility.

8. The Tribunal also records, for the sake of completeness, that by email dated [September] 2016, the applicant purportedly forwarded medical reports in relation to his mother, which the applicant told the delegate related to BB going into her home and accosting her in relation to him.[8]  No report appears to have been actually provided with that email.  To the delegate, the applicant also mentioned submitting a video recording of this claimed visit by BB to his mother, but, none appears on the Department file.  For the reasons given above, the Tribunal rejects the applicant’s evidence about this incident. 

   [8] See folio 81 of the Department file.

9. The delegate also put to the applicant that information on the Internet indicated that BB worked as [an occupation] in Turkey. When that was put to him by the delegate, the applicant said that sources would not report his illegal activities.  The Tribunal is willing to accept that publicly available materials may not disclose an individual undertaking such activities and the information obtained by the delegate is not adverse to the applicant.  However, for the reasons given above, the Tribunal disbelieves the applicant’s claims about this individual and the applicant’s dealings with him.

10. With his protection visa application form, the applicant submitted a document issued by the Department advising the applicant that he had been granted a Bridging Visa recording that he was making acceptable arrangements to depart Australia.[9]  In relation to that statement, to the Tribunal, the applicant said that he recalls having dealings with the Department prior to applying for protection and signed a form about which he knew nothing.[10]  He denied ever telling the Department that he was willing to return to Turkey.  As the Tribunal has no accurate record of whatever discussions were held between the applicant and the Department, the Tribunal is willing to accept the applicant’s claims about this and does not draw any adverse inference from this document.  It is the concerns that the Tribunal holds about the applicant’s credibility which form the basis of the Tribunal’s decision to reject his protection claims.

    [9] See folios 1-2 of the Department file.

    [10]  To the delegate, the applicant gave a similar explanation in relation to this issue also stating that CC told him that there would be no problem if he signed the form in question.

11. The Tribunal also took note of a document on the Department file that apparently related to communications between the applicant’s former representative and the Department referring to the applicant applying for protection, but, also entering into another marriage and the representative no longer wishing to represent him.[11] To the Tribunal, the applicant said that after divorcing AA, he married a woman who was the sibling of his former representative.  He said that his former representative was upset about this and would no longer representing him.  Whatever aspersions the former representative may have wanted to cast over the applicant’s protection claims, in his communication with the Department, the Tribunal gives no weight to them.  The communication is, therefore, not adverse to the applicant and the Tribunal is willing to accept his claims about his dealings with this individual.  Again, because of its concerns about the applicant’s credibility, the Tribunal finds that he is not a witness of truth and his protection claims are false.

    [11] See folio 78 of the Department file.

12. The Tribunal had access to the Department file relating to the application made by the applicant for a visa to enter Australia on the basis of his former marriage.  The evidence on this file submitted in support of that application is to the effect that the applicant and AA met in Turkey and began a relationship and their families supported their marriage.  This is, essentially, consistent with the applicant’s claims to the Tribunal about that.  While the applicant also claimed that his former wife’s brother BB was, essentially, behaving adversely toward the applicant, the Department file for this visa contains no representations from him.  Overall, the Tribunal considers that the contents of this file are not adverse to the applicant. 

13. However, because of the concerns that the Tribunal holds about the applicant’s credibility, notwithstanding the tenor of the evidence submitted with this particular visa application about the applicant’s marriage with AA, the Tribunal remains of the view that the applicant is not a witness of truth and it has no credible evidence as to why the applicant married his former wife and why that marriage was dissolved.  The evidence submitted with that visa application does not overcome the Tribunal’s concerns about the applicant’s credibility and persuade it to accept the applicant’s account of events about this marriage and on which his protection claims are based.[12]

    [12] For the sake of completeness, the Tribunal records that the delegate issued a certificate restricting the disclosure of certain documents on this particular file. There was no need for the Tribunal to raise this with the applicant because these documents are nothing more than administrative records relating to the processing of the protection visa application.  The contents of all of these documents are not relevant to the grounds on which this review has been determined and they are not adverse to the applicant.  Further, disclosure was restricted on the basis that the documents contain ‘information relating to an internal working document and business affairs’.  This is not satisfactory justification for the delegate's claim that disclosure of this information would be contrary to the public interest. Accordingly, the certificate in question is not valid.

14. Because of its concerns about the applicant’s credibility, the Tribunal does not believe his evidence about being threatened and attacked when he lived in Turkey.  The Tribunal does not believe his evidence about being abused and threatened after he came to Australia.  The Tribunal also disbelieves his claims about the brother of his former wife going to his family home in Turkey and accosting his mother.  The Tribunal finds that it has no credible evidence that this applicant ever suffered harm in Turkey or in Australia. The Tribunal has no credible evidence that anybody in Turkey or in Australia seeks to harm him.  Therefore, the Tribunal has no credible evidence as to why the applicant came to Australia and why he does not want to return to Turkey.

15. For all of these reasons, there is not a real chance that the applicant will suffer serious harm in Turkey.  He does not hold a well-founded fear of persecution within the meaning of s5J(1) of the Act.  For the same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion.

16. As stated earlier in this decision, the applicant appeared at the hearing with a woman he said he married in 2015 and a number of children.  The applicant did not make any protection claim on this basis.  It is a matter for the applicant and his wife to determine how he will maintain contact with her and their children.  Any distress caused to them by the applicant having no unlawful basis on which to remain in Australia, is not serious harm, nor is it serious harm for the essential and significant reason of any of the grounds contained in s5J(1) of the Act.    Any such distress will be the result of the applicant’s failure to comply with Australia’s immigration laws.  In that respect, any such distress does not equate with significant harm within the meaning of the complementary protection criterion.

    CONCLUSIONS

17. 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).

18. 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).

19. 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

20. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul Millar
    Member