1620379 (Refugee)

[2021] AATA 2242

1620379 (Refugee) [2021] AATA 2242 (3 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620379

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Peter Vlahos

DATE:3 June 2021

PLACE OF DECISION:  Melbourne

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

This Statement was made on 3 June 2021 at 7.45AM

CATCHWORDS

REFUGEE – protection visa – Turkey – fear of harm from criminal group after father challenged group leader – violent altercations and blood feud – corrupt police protected group and targeted applicant – imputed political opinion – false accusations of being member of outlawed political party/terrorist organisation – religion – moderate/liberal Muslim pressured by strict Muslim father – delay in applying for protection – attempt to apply for skilled visa mishandled by agent – low intelligence and mental health displayed in hearing – country information about police corruption and government anti-terrorist actions – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5J(1), 36(2)(a), 65, 91R(1)

Migration Regulations 1994 (Cth), Schedule 2

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

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 4 July 2014 and the delegate refused to grant the visa on 16 November 2016.

3. The applicant appeared before the Tribunal on 29 April 2021 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 and legal counsel.

6. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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’).

11. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

12. The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of origin and assessment

13. Based on a ‘copy’ of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Turkey and has had his individual claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.

14. Therefore, on this basis, the Tribunal further accepts the applicant’s identity as he claimed – that he is a citizen of the Republic of Turkey.

    Department file

15. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had access and regard to material referred to in the delegate’s record of decision. The applicant provided (through his legal counsel appointed) ‘a copy’ of the Department’s decision record to the Tribunal.

    Background – Migration history of the applicant

16. [The applicant] arrived in Australia at [Location], on a Turkish vessel called the “[Name]” [in] December 2005. [In] December 2005, the applicant deserted the vessel and became an unlawful non-citizen in Australia. On 24 July 2014, the applicant applied for a Protection visa.

    EVIDENCE AT THE HEARING

    Background of the applicant – personal history

17. [The applicant] was born on [Date] in Zongulak Province, Turkey. He has family in Turkey which consist of his elderly parents and [siblings]. The applicant told the Tribunal that since his arrival in Australia, he has (as often as he can) telephoned and has spoken to his mother but this is communication is at times difficult because of the “pressures” the applicant’s mother receives “not to speak to him” from the applicant’s elderly father. That being the case, the applicant tries to speak with his mother, at least once a week, if possible, for him to do so. The applicant told the Tribunal that he had received his education in Turkey through the Turkish education system and gained employment as a ship’s “[Occupation 1]” and worked as such until he arrived in Australia in 2005.

    The applicant’s claims for Protection

18. The applicant’s claims for protection and supporting evidence are contained in the Department of Home Affairs file [Number] and are summarised as follows:

    §The applicant was afraid for his safety.

    §He had experienced harm in Turkey by the Islamic extremist groups, military, police and the government.

    §He has been assaulted, tortured, detained and interrogated by the authorities.

    §He is “scared” for his life.

    §In Turkey “my country” people’s life has no importance.

    §He will be mistreated, and he will be harmed.

    §He will be threatened because he is a “member of a minority group” that has no support from anyone.

    §The government has “right-wing Islamic anti-democratic ideology” and “controls everyone, everything and orders” the “military and police” to what is wrong “because of their beliefs”.

    §You need to be in the same group to be protected.

19. The applicant was asked through the interpreter (by the Tribunal), if he had any additional claims to make to the Tribunal and for the Tribunal to consider. The applicant’s response was to tell the Tribunal that he wished to make no further ‘new claims’ or to ‘vary’ in any detail of the claims provided to the Department when he submitted his application for Protection and informed the Tribunal that his legal counsel would make further submissions concerning his claims in detail where it is required for the Tribunal to consider in arriving at its decision.

    Psychological Report dated 23 April 2021

20. The applicant it should be noted provided the Tribunal with Psychological Report[1] dated 23 April 2021 it author being a Mr or Ms [A] (of [email address]). It was stated in the report that the applicant had commenced psychological therapy on 25 January 2020 and attended seven (7) consultations over a period of 12 months.

    [1] Psychological Report dated 23 April 2021 from [email address]  see pp.7-8 of the Report. The report has been provided to the Tribunal and is on the AAT File no. 1620379

21. The overall conclusion of the psychologist was that for all that had occurred in his life, the applicant was captivated by a long-term ‘depression’.

22. The applicant did not indicate to the Tribunal with an indication as to whether he had been provided with any medicines or that further consultations had been arranged by him with this psychologist.

23. The applicant (through the interpreter) acknowledged that he had been in Australia since he willingly departed from the Turkish-owned vessel, he was working on in 2005. The applicant was asked to explain to the Tribunal – why it had taken him sixteen (16) years for him to lodge a Protection visa? The applicant explained that he (with the assistance) of “an agent” he had engaged (which he could not remember because of the passage of time) had attempted to “make legal” his status while in Australia by initiating the process for migration under the “skilled visa program”. However, according to the applicant, the “agent mixed up everything” and nothing was done as the applicant desired.

24. The Tribunal also brought to the applicant’s attention the Department’s ‘concern’ as noted in the delegate’s decision record that the applicant did not attend a ‘scheduled interview’ and asked him – why, he had not attended this interview. The applicant told the Tribunal that the “agent (he had then engaged to represent him) did “not inform him” about the request for him to attend the Department to be interviewed concerning his migration status.

25. The Tribunal also asked the applicant to explain as to who advised him to submit to the Department his Protection visa application? The applicant said that the Protection visa application was prepared by the “former migration agent.”

26. The Tribunal asked the applicant – whether he agreed with the claims as these had been provided to the Department? The applicant told the Tribunal (as he understood them) he “agreed with them” and that these claims “were his claims.”

    The applicant’s claims – the evidence (at the Hearing)

27. The Tribunal asked the applicant – why are you afraid to return to Turkey (your home)? The applicant (through the interpreter) tried to explain that he ‘feared’ to ‘return to his home in Turkey’ because ‘his father has had disagreements with persons who are big drug dealers’. The applicant went on to describe these ‘drug dealers’ as ‘Mafia’.

28. The Tribunal asked the applicant to explain how he knew that these drug dealers his father has had a bad relationship with were connected to a local ‘Mafia’? The applicant said that these local drug dealers were ‘doing some drug dealings’ and his father being a ‘pious’ and ‘very religious’ person in his district, took exception to this type of illegal dealings and confronted these persons and was threatened.

29. The Tribunal asked the applicant to explain why would his father take such a vocal and public interest against a powerful local drugs cartel and mafia group? The applicant told the Tribunal that his father “is a deeply religious person” and does not accept such actions happening in the local community. The applicant went on to tell the Tribunal that so great was his father’s resentment for such illegal actions that “he had a fight with these people…” This ‘fight’ developed into a ‘fight between the applicant and a member of this mafia group. The applicant, the Tribunal was told had a fight with a member of this group and the other party came out second best and the feeling of resentment and retribution became a real issue for the applicant’s family and for the applicant, in particular.

30. The applicant told the Tribunal that the matter was reported to the police and after the local police made some initial investigations about the cause of the differences between the parties, the police did not continue with the investigation.

31. The applicant was asked (through the interpreter) why the local police showed no interest in this issue as it affects him and his family? At this point in the proceedings the applicant displayed an appearance of not being able to recollect in detail what had followed for him and his family after the local police refused to be entertain further investigation in their problem.

32. The Tribunal asked the applicant to explain when did these matters happen? The applicant told the Tribunal that these events, as had described them, had occurred ‘in 1988’. He went on to tell the Tribunal that after the incident between him and the member of the mafia/drug group, the applicant and his family went to live in the city of Brusa. The applicant at that time was ‘working for a shipping company’ – as an ‘[Occupation 1]’.

33. After a period of time had lapsed, the ‘problems that had been experienced in the village came to Brusa’ the Tribunal was told.

34. The applicant was asked to describe to the Tribunal the circumstances which caused the problems he and his family had experienced in the village to follow them to Brusa. The applicant told the Tribunal thar one day a group followed him in order to extract revenge on him for the resistance he made against others in the mafia group in the village. The applicant, the Tribunal was told took refuge on the vessel he was then an employed on and did not dare leave it because he feared for his life.

35. The Tribunal asked the applicant whether he reported this incident to the police? The applicant said that ‘he made report’ because making such reports to the police (in Turkey) does not do anything positive for anyone. The police (according to the applicant) could not help him and his family in the village and neither when he was in Brusa. The applicant described the police (in Turkey) as not “willing to interfere with a big family…” that has interests everywhere in Turkey and has political links and influence.

36. The applicant was asked by the Tribunal why this group still would want to harm him after nearly more than ten years had passed? The Applicant told the Tribunal that “they had been fully disgraced” by ‘him’ and they did not forget this. He went on, to describe this entire issue as a “blood feud.”

37. The Tribunal asked the applicant whether any member of his family (in his absence) had been threatened or punished by this mafia/drug group? The applicant told the Tribunal that “no family member had been harmed” since ‘he’ had left Turkey. The applicant said that this group was only interested in him.

38. The Tribunal asked the applicant if he returned to Turkey would these mafia/drug group know where he is? The applicant admitted, that for a “little while” they will not find him but after a period of time had passed, “they would find me” because of the ‘contacts’ this group has throughout Turkey.

39. The applicant went on to tell the Tribunal that there were issues with his father due to his strong religious beliefs. The applicant described his father a religious personality in the local area who is very strict with his religious beliefs and is very pious. This, piety of the applicant’s father, according to the applicant has created issues for the applicant. However, when the applicant was asked by the Tribunal to clarify and to describe in detail how his father’s religious beliefs had caused and may cause issues for him (if he returned to Turkey in the future) the applicant found it difficult to provide the Tribunal with his explanation even with the assistance of an interpreter.

40. The applicant also referred to himself and family being a “minority group” and a because of this, he and his family had overtime had issues with the authorities.

41. Again, the applicant attempted to explain his thoughts with the assistance of the interpreter present at the hearing but was unable to express himself or to provide a clear explanation to the Tribunal of what he was being asked to explain.

42. At this stage, the Tribunal recognising the applicant’s difficulties suggested that the applicant’s legal representative provide within a period of three weeks (from the date of hearing) further and clearer submissions on the matters and issues that were examined at the hearing. The applicant’s representative agreed to provide the Tribunal with further detailed submissions within the time provided by the Tribunal.

    The Applicant’s further submissions

43. On 21 May 2021 the applicant’s Legal Counsel, [Mr B], [Law firm], provide the following written submission:

    • There is a blood feud between the Applicant and the family [C]. This started over an altercation between the Applicant’s father and [Mr C].
    • The Applicant’s father was ultra-religious and was the Imam of the village and

    approached [Mr C] who owned the neighbouring property to his father given that there was the cultivation of drugs on the property.

    • The Applicant’s father took an axe to [Mr C] and was subsequently prosecuted by the police despite the illegality of the nature of [Mr C]’s business ventures.
    • The Applicant has provided a bill of indictment in relation to the prosecution of his father.
    • The Applicant himself had an altercation with the son of [Mr C] in 1990 who had targeted him given he was the son of his father. This culminated in the Applicant beating [Mr C]’s son causing further ridicule to the [C] family.
    • The Applicant was sent to Istanbul and whilst away from his family formed liberal ideals.
    • In 1997 the Applicant was located by the [C] family and subsequently attacked and stabbed. He has provided a GP report with regards to the scarring which was contained in the previous submission. The Turkish police did not assist him and in fact threatened him given the [C] family were well connected.
    • After this event, the Applicant moved to Bursa where his family had also relocated. Out of fear. He initially worked at [Company] but left after a fellow villager commenced employment meaning there were risks that his residence would become known to the [C] family.
    • After this, he started working on ships as he felt it would safer.
    • The Applicant had also lost the support of his family during this period as he did not

    adhere to their strict interpretation of Islam.

    • In 2005, after he left the vessel, he was located by the [C] family and beaten again. This time the police took their threats further and alleged that he may have been part of the DHKP-C which is a designated terrorist organisation. They beat and tortured him to confess to his involvement.
    • The Applicant became afraid that he would be falsely prosecuted based on the

    allegations and jailed in Turkey.

    • He was able to depart Turkey on a ship following which, he the police went to his family

    and raised these allegations of being part of DHKP-C. His father also threatened to kill him because DHKP-C was a socialist, terrorist organisation.
    When the ship arrived in Australia, he went into hiding. He was afraid and subsequently
    became illegal.
    the time of hearing. The Applicant was found to suffer from Major Depressive Disorder
    and a lower than average IQ.

    • A psychological report was provided which we understand was on the Tribunal file at

1. The applicant also provided written submissions to the Tribunal on 22 April 2021 which stated the following:

   §The applicant’s father was a very religious individual and was the Imam of the village. He would preach his “fanatical views” in the Zongulak region. He was very well known and would go from place to place preaching his thoughts.

   §The applicant’s father had studied Islam in Giresun under the Mollah there and adhered to a strict interpretation of Sunni Islam.

   §In 1988, the applicant’s father attacked another man named [Mr C] with an axe. The issue was that the neighbour had land next to the applicant’s family’s land and was growing marijuana which is against [the teachings] of Islam. There was a dispute because the applicant’s father asked [Mr C] to stop growing drugs. The applicant’s father had raised the issue with the local police, but they were being bribed and did nothing about the situation.

   §Due to inaction by the authorities, the applicant’s father took the matter into his own hands and confronted [Mr C] and noted his actions were against Islam and asked him to stop. The other family were well connected and protected by the police. A fight started and during the fight, the applicant’s father tried to defend himself and used an axe and inflicted significant injuries on [Mr C].

   §After this blood feud started, the applicant’s life changed dramatically.

   §The first action the applicant’s parents did was to take the applicant out of the local primary school because he was a easy target. His father was prosecuted by the authorities for using an axe and [Mr C] was protected by the authorities. There was a denial by [Mr C] that drugs were being cultivated on his property and the applicant’s father was jailed and the family lived in fear.

   §In 1990 one of the children of [Mr C] named [Mr D], was able to track me down in Zonguldalk and attacked me. The applicant fought with [Mr D] and was able to defend himself, and this caused embarrassment and disgrace to [Mr D] as well as to [Mr C]’s family.

   §After this attack, the applicant’s father sent him to live in Istanbul. The applicant had extended family there and he lived with them. Istanbul was a modern city and the applicant became less religious and was exposed to liberal thoughts.

   §It was not too long that the family of [Mr C] had tracked the applicant to Istanbul. In 1997 the applicant was attacked and stabbed. The police did not assist the applicant for the obvious reasons. Though the applicant (while in hospital) explained to the Istanbul police the issues with [C] family.

   §After his discharge from hospital, the police visited the applicant and told him that if he took the matter further, the applicant would suffer ramifications. This led the applicant to fear that he would be prosecuted if he pressed the issue.

   §The applicant’s family had by then moved to Brusa.

   §Due to the applicant’s fear of being attacked and prosecuted by the police, he moved to live with his family in Brusa and started working there as [an Occupation 2]. This employment was at the [Company, alternative name] which was also known as [Company]. The applicant worked there until 2003 and left after a relative of one of applicant’s fellow villagers got employment in the applicant’s section and the applicant fearing he (the villager) will tell [Mr C]’s family where the applicant was.

   §While working at [Company], the applicant had another job – working as an [Occupation 1] at the wharf in Bursa. It was through this work that the applicant formed contacts with various shipping workers and such, he felt that it may be safer for him to work on ships - where he would not be an “easy target.”

   §During this period, the applicant also lost the support of his family. This was because his father continued to pressure him to adhere to his father’s version of Islam and the applicant resisted. The applicant’s father started threatening him – trying to force him to practice the father’s version of Islam. The applicant and his father continued to quarrel over religion – the applicant later fearing for his life – because his father had access to a firearm and had threatened to shoot him.

   §Out of fear, the applicant started working on ships as an [Occupation 1]. He did this work from 2003 and would spend significant periods of time at sea. The applicant felt safe at sea but would always fear he would be found when he returned to Turkey.

   §Unfortunately, [according to the applicant] in 2005 a short time after disembarking from a ship, the applicant was located by [Mr C]’s family and was beaten badly. His life was saved by the intervention of bystanders who called a nearby police officer and his assailants runaway. The applicant was taken to hospital – having suffered wounds on his face. He was questioned by the police and he gave them the details of [Mr C] and his family. However, the applicant believed that [Mr C] and his family then used their connections for the police investigation to be scaled down. A short time later, the police came and took the applicant to the police station. The police accused him as being a member of a terrorist organisation [the – DHKP-C (Devrimci Halk Kurtulus Partisi -Cephesi)] which the applicant denied. This group a “leftist organisation” that had been undertaking terrorist attacks in Turkey. The applicant denied having any involvement with this group.

   §The applicant was beaten by the police who tried to extract a confession from him, which he refused to provide. He was then released with a warning that the investigations would continue

   §After he was released, the applicant determined that he could not remain in Turkey and as such arranged to get on a boat and to leave Turkey.

   §Soon after the applicant left Turkey, the police went to see his family and told them that there was an arrest warrant and the allegation had been made that the applicant was a member of a leftist terrorist organisation. The applicant also received threats from his father that he would kill him because of these actions. The applicant also spoke to his mother and told her that all the allegations were lies and that she (and his father) should not believe them.

   §When on the ship, the applicant did not know what to do. Due to the fact that [Mr C]’s family are members of a “mafia group” the applicant believed they would find him if he chose to hide in Europe. When the applicant arrived in Australia, he felt that it was far enough for them not to be able to find him. As such, the applicant decided to depart the ship and go “into hiding”. The applicant understood he was “illegal” and “kept a low profile”, as he “realised there [were] people from Zongulak in Australia.”

   §The applicant fears the authorities in Turkey and believes that there is an open case against him for being part of a terrorist organisation. He also fears the family of [Mr C] and their mafia connection.

   §There is a blood feud between [Mr C] and the applicant’s family. The applicant is specifically at risk because he caused further embarrassment to the [C] family because he had an altercation with their son. This family has also arranged the fabrication of the applicant’s membership of the terrorist organisation – DHKP-K.

   §He also fears that his father would “kill him” for tarnishing his name.

   §The applicant fears the authorities. He believes that there is a warrant for his arrest. 

   COUNTRY INFORMATION – TURKEY – RULE OF LAW – POLICE CORRUPTION – TERRORISM – MAFIA CONCERNS – RELIGIOUS FANATICISM[2]

   [2] Department of Foreign Affairs – Country Information Report – Turkey, 20 September 2020

   Corruption

   Turkey is a State Party to the UN Convention against Corruption, the OECD Anti-Bribery Convention,

   the Council of Europe Criminal Law Convention on Corruption, and the Council of Europe Civil Law

   Convention on Corruption. The anti-corruption legal framework is contained in several laws. The Criminal Code (2004, articles 247 and 252) criminalises active and passive bribery, facilitation
   payments, attempted corruption, extortion, bribing a foreign official, money laundering, and abuse of office. Punishment for corruption-related offences can include imprisonment from five to 12 years.

   Despite this strong legal framework, international and domestic observers report corruption remains

   widespread in Turkey’s public and private sectors. Transparency International ranked Turkey equal 91st out of 198 countries in its annual Corruption Perceptions Index for 2019. Public procurement and infrastructure projects are particularly vulnerable to corruption, and officials have reportedly demanded bribes.

   International observers report there is no established pattern of, or mechanism for, investigating, indicting, and convicting individuals accused of corruption, and have questioned the impartiality of judges in the handling of corruption cases. During 2019 several law enforcement officers, judges, and prosecutors who initiated corruption-related investigations were themselves prosecuted, as were journalists who published corruption related stories. Official oversight bodies such as the Court of Accounts and Ombudsman often release reports late, and rarely cover corruption allegations.

   State of Emergency

   Following the attempted coup of 15 July 2016, the government declared a three-month nationwide

   state of emergency endorsed by parliament on 20 July 2016. The stated purpose of the state of emergency was ‘to take required measures in the most speedy and effective manner in the fight against the Fethullah Gulen Terror Organisation (FETO) and to return to normalcy as soon as possible’. The state of emergency concluded at midnight on 18 July 2018, after seven three-month extensions. Parliament has permanently adopted most of the 36 statutory decrees issued under the state of emergency. Under the presidential system, the President retains the ability to issue decrees.

   The state of emergency allowed the government to rule through decrees carrying the force of law,

   bypassing parliament. It afforded legal, administrative, criminal and financial immunity to administrative authorities acting within the framework of the decrees. In November 2016, the Supreme Court ruled the decrees were not subject to judicial review. The government issued 36 statutory decrees under the state of emergency, and human rights observers have expressed concern several decrees regulated matters unrelated to the state of emergency, ranging from the closure of civil society organisations and medical centres to the use of winter tyres on vehicles. The state of emergency also gave security forces extensive powers to crack down on alleged supporters of the Gulen movement from within state institutions. Authorities have launched legal proceedings against 441,195 people on a variety of terrorism charges, including for being alleged Gulen supporters, or members of the PKK or other organisations.

   TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

   Turkey is a party to ICCPR, CAT and OP-CAT (see Human Rights Framework). As a member of the Council of Europe, Turkey is party to the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) and its Protocols Nos. 1-12, and to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its Protocol No. 2. Turkey permits annual visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and has only recently, in August 2020, approved publication of reports from 2017 and 2019. The 2019 report noted that the Committee for the Prevention of Torture (CPT) received a considerable number of allegations of excessive use of force or physical ill-treatment against persons in custody, with a number of these allegations backed by medical evidence. The CPT also remained concerned about restrictions against access to a lawyer during the initial phase of custody for certain serious crimes. A visit for 2020 is yet to take place. Article 17 of the Constitution enshrines the right to be free from torture and other ill-treatment and the right not to be subjected to penalties or treatment incompatible with human dignity. The Criminal Code criminalises torture and defines it as a serious crime punishable with life imprisonment in aggravated cases. Article 147 of the Code of Criminal Procedure (2004) sets legal standards for interviewing suspects, to prevent torture and ill-treatment.

   Requirements include notification of charges, the right to legal counsel, the right to remain silent,

   notification of the arrest to next of kin, and the obligation to record every interview in writing, or to make an audio and video recording in the case of individuals suspected of acts of terrorism. Article 148 of the Criminal Procedure provides that confessions obtained through any bodily or mental intervention that impairs the free will, including torture, shall not be used in evidence and shall not serve as a basis for evidence in any proceedings. Despite these legal protections, human rights observers report torture and other ill-treatment of detainees occurs in Turkish detention facilities, particularly as a means of extracting confessions or forcing detainees to denounce other individuals. Turkey’s Human Rights Association reported 1,477 individuals had alleged they were subject to torture and other forms of ill-treatment while in custody during 2019.

   In a February 2018 statement, the UN Special Rapporteur on torture expressed serious concerns about the rising allegations of torture and other ill-treatment in Turkish police custody, since his last visit in December 2016.

   The Special Rapporteur said there were allegations individuals suspected of links to the Gulen Movement or PKK were exposed to brutal interrogation techniques, including beatings, electrical shocks, exposure to icy water, sleep deprivation, threats, insults and sexual assault. The Special Rapporteur also said torture complaints were allegedly dismissed in some instances because a state of emergency decree exempted public officials from criminal responsibility for acts taken in the context of the state of emergency.

   According to human rights observers, reports of torture and ill-treatment are now significantly lower

   in number and severity than in the weeks following the July 2016 failed coup. In the southeast, however, allegations of abuse and degrading treatment continue, including verbal assaults and threats, slaps and invasive body searches, as well as male guards sexually threatening or harassing female detainees during transfers and denying them privacy during medical examinations. In May 2019, reports emerged that up to 100 people dismissed from the public service on suspected ties to the Gulen Movement were mistreated while under the custody of police in Ankara. The Ankara Bar Association interviewed six detainees, five of whom testified that authorities blindfolded them, dragged them around police facilities, hit them with batons, and threatened to insert batons into their rectums. The Turkish National Police deny the claims.

   In principle, prosecutors can and must investigate all allegations of torture and ill-treatment

   ex officio, regardless of an individual complaint, and the Public Prosecutor must follow up all complaints received. Complaints may be brought by victims themselves, by their family or lawyer, by civil society organisations, or by a monitoring mechanism such as the Ombudsman Institution (see National Human Rights Institution (NHRI)). Authorities have also established a hotline to enable families to lodge complaints.

   Human rights groups claim most victims of torture or other ill-treatment do not file complaints with

   authorities for fear of retaliation against them or their families, and due to low levels of trust in the

   independence of the prosecution and the judiciary, and their willingness or ability to investigate and

   adjudicate claims. The Special Rapporteur reported formal investigations and prosecutions were extremely rare, indicating insufficient determination on the part of responsible authorities to take cases forward, and thus creating a strong perception of de facto impunity.

   Turkey’s Forensic Medicine Institute, part of the Justice Ministry, conducted an investigation into

   allegations 54 prisoners in the south-eastern province of Urfa were tortured in 2019 after photos of a group of prisoners lying naked on the ground were published. The Institute acknowledged the prisoners had scratches, but noted they were ‘not deadly’. Members of the group claimed to have been subjected to eight different methods of torture for 12 days, including being hooded and having their genitals electrocuted. The local Bar Association said torture had been systematic in the province since 2015, and the Institute’s report had not been prepared in an objective manner. Authorities have taken no further action.

   Since 2012, the Constitutional Court has been able to receive direct complaints from individuals

   about violations of their rights under the Constitution and the ECHR and its Protocols, provided no effective remedy has been given by lower courts. Individuals can lodge complaints of torture directly with the Constitutional Court if the prosecutor fails to initiate an investigation into torture allegations.

   DFAT assesses reports of torture in Turkish police stations and detention facilities, particularly in the

   southeast, and in the period immediately following the 2016 attempted coup, are likely credible. People who have undergone torture at the hands of officials are highly unlikely to receive redress through official channels.

   Arbitrary Arrest and Detention

   Article 19 of the Constitution prohibits arbitrary arrest and detention, and provides for the right of

   any person to challenge the lawfulness of arrest or detention in court. Legislation requires warrants issued by a prosecutor for arrests unless the suspect is detained while committing a crime. Under new antiterrorism legislation introduced at the conclusion of the state of emergency, suspects can be detained for 48 hours for individual offences, and 96 hours for collective offences. In both instances detention can be extended twice with the approval of a judge, amounting to six days for individual offences and 12 days for collective offences. Formal arrest is a later step, separate from detention, and means a suspect is detained in jail until and unless released by a subsequent court order. International and domestic human rights observers claim law enforcement officials do not always follow these requirements, and there are numerous accounts of individuals being held in detention beyond 12 days without formal charge. The maximum time an individual can be held in pre-trial detention is seven years.

   These constitutional requirements and laws are often implemented inconsistently. Following the

   2016 attempted coup tens of thousands of people were detained, often denied access to the evidence underlying the accusations against them, and often with different outcomes for near identical cases.

   The Turkish government has acknowledged many of these issues and in October 2019 introduced a judicial reform strategy to ensure a more efficient and transparent system. Observers have noted the use of lengthy pre-trial detention has often served as a form of summary punishment in politically motivated terrorism charges.

   Corporal Punishment

   Neither the Criminal Code nor the Criminal Procedure Code allows judicial corporal punishment. No

   legislation explicitly prohibits corporal punishment in schools, but several laws provide for punitive measures against teachers who use physical or psychological violence against children, and it has long been considered unlawful. Corporal punishment is lawful in the home and in alternative care settings. While the Civil Code was amended in 2002 to remove parents’ ‘right of correction’, Article 232 of the Criminal Code still recognises the concept of parental ‘disciplinary power’. Courts have not recognised provisions against violence and abuse in the Criminal Code, the Law to Protect the Family and Prevent Violence against Women (2012) and the Juvenile Protection Law (2005) as prohibiting corporal punishment in childrearing. Observers report a near universal social and cultural acceptance of corporal punishment in childrearing in Turkey. Turkey expressed its commitment to prohibiting all corporal punishment, including of children, through accepting recommendations to do so during its 2010 and 2015 UPRs. Turkey is still examining recommendations on corporal punishment against children from its 2020 UPR (see Human Rights Framework). Turkey is a signatory to the Council of Europe’s campaign against corporal punishment of children. However, the government has taken no recent moves towards legal prohibition.

   Police

   The Turkish National Police (‘the police’) is the civilian police force responsible for law enforcement

   in Turkey, with around 310,000 members, of which approximately 6 per cent are female. While ultimately responsible to the Ministry of Interior, the police carry out their duties under the command and control of civil authorities including governors and heads of district administrations. In accordance with the Law on Duties and Powers of the Police (2004), the main duties of the police are to prevent crime, provide public peace and order, provide security to people and property, and to detect, arrest, and transfer offenders and case evidence to the appropriate judicial bodies.

   Like other branches of the Turkish civil service, the dismissals of alleged Gulenists following the 2016

   attempted coup has affected the police. As at July 2019, 33,372 personnel had been dismissed from the police force for Gulen links since July 2016. Gulen-related investigations also consume a significant proportion of police resources.

   International and domestic human rights groups have expressed concerns the government has taken

   only limited steps to investigate, prosecute, and punish members of the police and other security forces accused of corruption and human rights abuses (including historical allegations), leading to perceptions of impunity. Human rights observers have also expressed concerns over allegations police and other security forces mistreated and tortured detainees.

   Blood Feuds in Turkey[3]

   [3] Canada: Immigration and Refugee Board of Canada, Turkey: "Kan Davasi"; blood feuds; response of police and other authorities to persons targeted (1999-2000), 7 July 2000, TUR34792.E, available at: 31 May 2021]

   According to two sources, "kan davasi" or blood feuds are an extinct, or nearly extinct, practice in Turkey (Foreign Affairs July 1999; Koc University Newsletter n.d.). Paul Stirling, an anthropologist at the University of Kent at Canterbury, discussing unresolved blood feuds in Turkey, states that "the great extension of State interference and the recent improvement in police and judicial institutions can hardly have failed to alter the working of the feuds" (1994).[4]

   [4] Foreign Affairs [New York]. July 1999. William Hagan. "The Balkans' Lethal Nationalisms." [Accessed 6 July 2000] Koc University Newsletter. n.d. Hakki Anil Seker. "Crimes as a Result of Several Contributing Factors." [Accessed 6 July 2000] One World News Service. 28 May 1997. Nick Ryan. "Arrest of Human Rights Activists in Turkey." [Accessed 6 July 2000] Turkey, Ministry of Foreign Affairs. n.d. "PKK Reality in Turkey and the World." [Accessed 7 July 2000] Stirling, Paul. 1994. Turkish Village. [Accessed 7 July 2000]

   However, other reports suggest that the practice of blood feuds persists. A Turkish Ministry of Foreign Affairs publication, refuting Kurdistan Worker's Party (PKK) claims that the Turkish security forces are responsible for unsolved murders, asserts that "Murders among the people of the region are often committed for personal reasons, blood feuds or other reasons" (n.d.).

   A One World News Service report regarding the arrest of Mammut Sakar, vice president of the Turkish Human Rights Association (IHD), states that Sakar "negotiates an end to blood feuds and tribal in-fighting, which frequently erupts in a society where lawlessness (not least by the state) is rife" (28 May 1997). No information could be found regarding the response of police and other authorities to persons targeted in blood feuds.

   This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Response.

   The DHKP/C insurgency in Turkey[5]

   [5] See Wikipedia Article

   The DHKP/C insurgency in Turkey refers to the Marxist-Leninist insurgency waged by the Revolutionary People's Liberation Party/Front (DHKP/C) against the Republic of Turkey, ongoing since 1990. The insurgency began with political assassinations in the early 1990s, and has escalated in the past few years with the use of suicide bombers.

   The organization was originally formed in 1978 by Dursun Karataş as Revolutionary  Left (Turkish: Devrimci Sol or Dev Sol), a splinter faction of Devrimci Yol ("Revolutionary Way"), which splintered from the Turkish People's Liberation Party-Front (THKP-C), which in its turn was a splinter of Revolutionary Youth Federation (commonly known in Turkish as Dev Genç). Its first campaign of violence was during the Turkish political crisis (1976–80).

   First years (1990–2001)

   It began a new campaign against foreign interests in 1990, which included attacks against U.S. military and diplomatic personnel and facilities.

   To protest what it considered US imperialism during the Gulf war, the DHKP/C assassinated two United States military personnel, wounded an Air Force officer and bombed more than 20 U.S. and NATO military, commercial and cultural facilities.

   Vinnell-Brown & Root (VBR) Regional Manager John Gandy was killed in his Istanbul office in February 1991 by a Dev Sol team that gained access to the office building by wearing Turkish National Police (TNP) uniforms. After tying Gandy to a chair, the Dev Sol operatives shot him multiple times in the head. They then wrote anti-US graffiti on the office walls in the victim's blood.

   Dev Sol employed professional operational and counterintelligence tradecraft. It used sophisticated surveillance and counter-surveillance techniques, employed multi-layer assassination squads with surveillance, primary and secondary shooters, and it successfully exfiltrated its operatives back and forth between Western Europe and Turkey as needed. It skilfully employed professionally forged documents and disguises.

   In August 1991, Andrew Blake, the head of the British Commercial Union in Istanbul, was killed in a shooting. His killing was claimed by DHKP/C. However, the Turkish wing of Islamic Jihad also claimed the killing. Dev Sol also claimed the assassinations of Hiram Abas (1990), Memduh Ünlütürk, İsmail Selen, Adnan Ersöz and Hulusi Sayın (1991) and Kemal Kayacan (1992), all retired Turkish military or intelligence officers.

   In January 1996, it assassinated Özdemir Sabancı, a prominent Turkish businessman, and two others: associate Haluk Görgün and secretary Nilgün Hasefe. The killings were carried out by hired assassins who had been given access to Sabanci Towers by a member, student Fehriye Erdal, who worked there.

   In June 1999, two members of the DHKP-C armed with pistols and a light anti-tank weapon attempted to attack the Consulate General of the United States, Istanbul. The attack was conducted in order to protest against Operation Allied Force and in solidarity with the people of Yugoslavia. Both attackers were killed in a firefight with police.[6]

   [6] Political Violence against Americans 1999, (DIANE Publishing) Google Books

   Escalation (2001–present)

   DHKP/C added suicide bombings to its operations in 2001, with attacks against Turkish police in January and September of that year. On 10 September 2001, a suicide bomber killed himself and three other people in Istanbul, being the bloodiest attack perpetrated by the group.[7]

   [7] "Profile: Turkey's Marxist DHKP-C". BBC. 1 April 2004. Retrieved 31 March 2013.

   Security operations in Turkey and elsewhere have weakened the group, however. DHKP-C did not conduct any major attacks in 2003, although a DHKP/C female suicide bomber Sengul AK Kurt’s explosive belt detonated by accident on 20 May 2003 in Ankara, in a restroom, while she was preparing for an action.[8]

   [8] Bomb at the centre of Kizilay 100 meters away from the Prime Ministry Hurriyet Daily News. 21 May 2003. Retrieved 2 April 2015.

   On 24 July 2004, another mistaken detonation, on a bus in Istanbul, occurred, killing Semiran Polat of DHKP-C and three more people and injuring 15 others.[9]

   [9] Şafak, Yeni (2004-06-26). "Bombacı, DHKP-C üyesi çıktı". Yeni Şafak (in Turkish). Retrieved 2021-05-23

   On 1 July 2005, Eyüp Beyaz of DHKP-C was killed in Ankara in an attempted suicide bombing attack on the ministry of justice.

   In late February 2006, female member Fehriye Erdal was convicted in Belgium, while under house arrest. However, shortly before her conviction she escaped and still has not been found.

   On 29 April 2009, Didem Akman of DHKP-C was wounded in her attempt to assassinate Hikmet Sami Türk at Bilkent University right before a lecture in Constitution Law. Akman and her accomplice S. Onur Yılmaz were caught.[10]

   [10]  "Former justice minister escapes assassination attempt". Today's Zaman. 30 April 2009. Retrieved 30 April 2009.

   On 11 September 2012, a suicide bomber, a DHKP/C militant, blew himself up at the Sultangazi district in Istanbul killing himself, a Turkish National Police Officer. The Turkish National Police identified the bomber as İbrahim Çuhadar, a member of DHKP/C.[11]

   [11] Ibid

   DHKP/C on 11 December 2012 Gaziosmanpasa also killed a policeman.

   On 1 February 2013, a suicide bomber, a DHKP/C militant, blew himself up at the US embassy in Ankara, killing a Turkish security guard and wounding several other people. Istanbul police identified the bomber as Ecevit Şanlı, a member of DHKP/C.[12]

   [12] 'Police: Bomber at U.S. Embassy in Turkey with leftist group". CNN. 1 February 2013. Retrieved 1 February 2013.

   On 19 March 2013, DHKP/C militants conducted a double attack against the ruling Justice and Development Party (AKP) headquarters and the Justice Ministry. Responsibility for the attacks was claimed by the DHKP/C.[13]

   In September 2013, two DHKP/C members attacked the headquarters of the General Directorate of Security with rockets. One of them, who was killed in the attack, had been involved in the 19 March attack on the AKP headquarters.[14]

   On 29 September 2013 DHKP/C sympathizers and members clash with drug gang in Maltepe where DHKP/C finds support from the local population. A young local resident, left-wing activist Hasan Ferit Gedik, was killed in clashes. Following the clashes, a group of armed DHKP/C members started to patrol the streets in Maltepe.[15]

   On 6 January 2015, a female suicide bomber blew herself up at a police station in the Sultanahmet district of Istanbul, killing one police officer and injuring another. DHKP-C claimed responsibility for the attack, saying it was meant "to punish (the) murderers of Berkin Elvan" and "to call to account the fascist state that protects AKP's corrupt, stealing ministers". Berkin Elvan was a 15-year-old boy who was killed by a tear-gas canister fired by a police officer during the 2013 Istanbul protests. The group also claimed that the suicide bomber was Elif Sultan Kalsen. After being called to a criminal medical centre to identify the body, Kalsen's family denied the claims, stating that it was not their daughter.[16] On 8 January 2015, the perpetrator was identified as Diana Ramazova, a Chechen-Russian citizen from Dagestan. Turkish police are investigated Ramazova's possible links to al-Qaeda or the Islamic State of Iraq and the Levant. Further investigation revealed that suspect had photos with insurgents from ISIS.[17] The DHKP-C on 8 January removed the statement claiming responsibility from its website without giving any explanation.[18] As of yet, it is not known why they took responsibility for the attack.

   On 31 March 2015 suspected members of DHKP-C took prosecutor Mehmet Selim Kiraz hostage on the sixth floor of the Istanbul Çağlayan Justice Palace. They demanded that the police announce the names of four members of the security services who they said were connected to the death of Berkin Elvan. The police negotiated with the gunmen for six hours, but eventually stormed the courthouse "because of gunshots heard from inside the prosecutor's office". The two gunmen died during the operation, while the prosecutor was badly wounded and later died of his injuries.[19]

   On 26 July, in Istanbul, one policeman was shot and killed in the Gazi neighbourhood.[20]

   On 10 August 2015, two women from the DHKP/C staged an attack on the U.S. consulate in Istanbul; one of the attackers, identified as Hatice Asik, was captured along with her rifle.[21]

   On 19 March 2020, Greek police arrested more than 20 members of the DHKP/C.[22]

   In 2020 Tukish security forces captured more than 301 members of the DHKP/C.[23]

   From 2015 to 2021 Turkish security forces claimed to have killed 16 high-ranking members of the DHKP/C, 401 of the KPP, 9 of the MLCP, and 6 of the TKP / ML.[24]

   [13] 'Double bomb attack in Ankara targets 'resolution process': Turkish PM Erdoğan". Retrieved 2 April 2013.

   [14] Today's Zaman, 22 September 2013, Foreign links investigated in terrorist attack on police headquarters Archived 2015-04-02 at the Wayback Machine

   [15] FAZLI MERT, ÖZGÜR GÜNEŞ İSTANBUL (1 October 2013). "DHKP-C ve torbacı savaşı"

   [16] ABC News. "International News – World News – ABC News". ABC News.

   [17] "Canlı bombanın El Kaide ve IŞİD bağlantısı araştırılıyor". Hürriyet (in Turkish). Archived from the original on January 9, 2015. Retrieved 8 January 2015.

   [18] Aydın, Çetin (8 January 2015). "Russian citizen revealed to be suicide bomber who attacked Istanbul police". Hürriyet Daily News. Retrieved 8 January 2015.

   [19] "Confusion over identity of Istanbul suicide bomber". The Peninsula. 9 January 2015. 

   [20] Bloody end to Turkey prosecutor hostage crisis BBC

   [21] Ibid

   [22] "Over 20 DHKP-C terror suspects arrested in Greece".  Retrieved 2021-05-16.

   [23] "Far-left terror suspect arrested in NW Turkey".  Retrieved 2021-05-16.

   [24] "2 far-left DHKP-C terror suspects arrested in Istanbul". "Turkey arrests 97 far-left DHKP-C terror suspects".  Retrieved 2021-05-16.

   FINDINGS AND REASONS

1. The applicant claims that he has a strained relationship with his father over ‘religion’ and religious belief and that his father would threaten his life and wellbeing because of the issue of religion. The applicant also claims that because of his father’s actions in the past with a neighbour, taking violent exception to that neighbour cultivating a marijuana crop on his property, the applicant, defending his father’s actions had become the centre of a ‘blood feud’ with a local mafia family which would not relent until the applicant had been taught a lesson which involved even his death. Having escaped from the village to Istanbul and to Brusa, the applicant’s whereabouts were found by his persecutors, making it difficult for him to live safely while in Turkey. Finally, these problems (with the mafia family as claimed) had been reported to the police and the police refused to investigate them and false charges (according to the applicant) were levelled against him (by the police who had ties to the mafia family) – accusing him of being a member of an outlawed leftist political terrorist group. The only alternative for the applicant was to leave Turkey which he did in 2005. Overall, and with regard to the detailed submissions provided by the applicant’s legal counsel, [Mr B], the Tribunal has considerable sympathy with the applicant’s situation. In particular, the Tribunal is cognizant of the claim he makes that false charges have been created claiming him to a be a member of local (Turkish) leftist political terrorist organisation which from the information the Tribunal has been provided with and referenced on its own is completely outlawed in Turkey and is the centre of attention by the security-part of the Turkish state.

2. If we recollect, both the applicant’s evidence and the subsequent submissions made by his legal counsel on his behalf, the Tribunal was told that his father’s actions, that is, showing his disapproval for the cultivation of a drug crop on his neighbour’s property triggered a series of events which saw the family leave the village where they lived for a lifetime in order to seek refuge in Istanbul and later Brusa. What is important to note from the evidence and submissions is that the applicant’s father’s actions – for example, displaying his public anger at a local drug manufacturer was caused after the local police refused to take any action when they were told of this by the father. The applicant told the Tribunal that the police inaction was to be expected because the [C] family had deep connections with the police and police were subjected to corrupt practices. Indeed, the country information considered by the Tribunal indicates that ‘corruption’ in the Turkish Police is a moderately high risk. Companies indicate that they perceive the police force as not adequately reliable.[25] More than half of the Turkish population believes that ‘most of all police officers are corrupt’ and that ‘one in twenty Turkish citizens indicate they have been asked for a bribe by a police officer’ in the preceding year.[26] Moreover, police impunity is a problem due to the ‘inadequate mechanisms available’ in place to investigate and punish alleged police corruption.[27] After reading this information, the Tribunal is of the opinion when considering both the applicant’s evidence and the later written submissions made by his counsel, [Mr B], that it was more probable than not, that the members of the family of [Mr C] as well as [Mr C] himself had considerable influence with the local police to steer any investigation in their favour. One could say that there was enough influence (‘corruption’) as the applicant told the Tribunal to neutralise any proper investigation of the illicit activities of [C] family in the applicant’s village. Therefore, the Tribunal concludes and finds that the applicant and his family had experienced harm caused by their reporting a criminal matter to corrupt police officials in their village which caused them to have a well-founded fear of persecution (in particular the applicant) from a local mafia family which had caused the local police officials to be corrupted and for this reason the applicant has a well-founded fear of persecution as provided for in section 5J (1) of the Act.

   Blood feud between the applicant and the [C] family

   [25] GCR (Governments Corruption Report) 2017-18.

   [26] SELDI 2016, also see: [corruption-world-wide portal]

   [27] HRR (Human Rights Report_ Turkey_ country information) 2017 also found in >

   As for the applicant’s involvement as he has stated in his evidence, that is, he fought with a member of [C] family and subsequently, that family formed a ‘blood feud’ involving the applicant after that applicant defended himself successfully; again, in light of what occurred with the applicant’s father and [Mr C] over the marijuana crop, it is probable that once the father had been ignored by [Mr C] and after the local police chose to do nothing, the relations between the two families would have become tense – as the applicant claimed, heated words exchanged and an altercation the result. Also, it is more probable than not, in Turkish societal circumstances that such altercations between individual members of rival families to develop overtime into some sort of ‘feud’ – personal in character or collective. In this case, it developed into a feud which (according to the evidence) attached to the applicant’s person. This, caused him, as he told the Tribunal, to leave his village a to go and live with relatives in Istanbul and later with his family in Brusa, and then, when someone recognised him from the village and after sustaining an assault upon his person (which the authorities did not thoroughly elect to investigate) he decided to leave Turkey on a ship for a destinations farthest from the centres of his problems. Indeed, the country information the Tribunal referenced above, does report that blood feuds between individuals and whole families still occur in parts of Turkey – especially in Turkey’s rural south-eastern region. It is fair to state that the applicant’s fears of harm and persecution from members of [C] family or from that family as a whole are credible. Though, the incidents which attach to this feud occurred a considerable period of time in the distant past (before the applicant left Turkey in 2005) it is possible that remnants of this still prevail where the applicant resided. It should also be noted that the applicant, while here in Australia, has had very little (except for those in the Turkish community that don’t come from his region) little to do with the Turkish community, keeping his personal profile at very low level. These actions are testimony to a person (the applicant) maintaining the thought that he might (in all probability) face someone who might attach in some manner with his persecutors – the [C] family and get harm inflicted upon him. The applicant’s psychological report records the presence of ‘significant levels of anxiety’. It reported the applicant as feeling ‘sad, flat, irritable, helpless, hopelessness’ (see, at p.6). More to the point, the report describes the applicant as feeling helpless, hopeless, irritable, cries easily, and worries excessively about being deported (see, at pp.6, 7). It is obvious to the Tribunal from this description of the applicant’s state of mind, that he has been deeply disturbed by his past – a past he continues to carry with him in the present with major affects on his mental and physical state. It should be pointed out that during the Tribunal’s examination of the applicant and his evidence, the applicant when referred to the incidents he lived through and in particular the ‘blood feud’ he immediately descended into an open emotional state and complete blankness of thought. From these instances as witnessed by the Tribunal of the applicant’s demeanour during the hearing, the Tribunal (after also, reading the psychologist’s opinion) concluded that the feud and the circumstances surrounding the issues with the [C] family, the applicant genuinely feared and fears still (even with the passage of time) the consequences his physical defence of his father caused for him. The Tribunal concludes and finds that as far as it can determine from the applicant’s evidence and demeanour (at the hearing) and from the submissions received from the applicant’s counsel, [Mr B], the applicant does have a well-founded fear of cruel or inhuman treatment or punishment because of a personal or family feud that persists (against him in person) with the criminal mafia family of [Mr C] or for any other reason or reasons as provided for in section 5J(1) of the Act.

   The false accusations made against the applicant being a member of a left-wing terrorist organisation which has been outlawed in Turkey.  

3. The applicant also claimed that he had been ‘framed by the police’ whom were in cooperation and under the influence of the [C] family – accusing him of being a member of the leftist terrorist organisation known as DHKP-C. This occurred soon after he was rediscovered by a person from his village (while in Brusa) who told members of the [C] family. He was subsequently beaten by ‘unknown thugs’ and following the police investigation the applicant was ‘falsely accused’ of unlawful political and terrorist activities.

4. The applicant told the Tribunal that if he was to return to Turkey, he would have very little opportunity or the ability to defend himself against these “false charges”. The applicant also told the Tribunal that from what he understood, these charges had been formalised in a formal charge sheet and warrant (which authorised his arrest). That being the stated position, the applicant nor his counsel provided any (copies of) formal documents as evidence of such proceedings pending against the applicant. In his evidence, the applicant told the Tribunal that he had no political involvement while he lived in Turkey. He also told the Tribunal that the authorities (as far as he knew) had questioned his father who was ‘angry’ at the news concerning his son’s involvement with the outlawed DHKP-C.

5. From the evidence heard and read (in the later written submissions) the Tribunal accepts that some kind of ‘frame-up’ has occurred involving the applicant and that relates directly to the altercation his father had with [Mr C] and the later physical fight the applicant had with a son of [Mr C]. In coming to this conclusion on the facts as presented to the Tribunal on the evidence the Tribunal has also considered the corruption levels as reported that exist in Turkey today, and it accepts the applicant’s claim that the police or corrupt elements of the police were involved as the applicant claimed and would have placed such ‘false charges’ of his political and terrorist involvement on the record as form of retribution and payback.

6. Having said this, the Tribunal considered whether the applicant if he was to return to Turkey in the future could he seek exoneration from such false accusations within the Turkish Judicial system. According to information accessed[28] by the Tribunal, it is reported that, there is a high risk of corruption when dealing with Turkey’s judiciary. Persons and companies report very low confidence in the independence of the judiciary and the ability of the legal framework to settle disputes or challenge regulation (GCR 2017-2018). Bribes and irregular payments in return for favourable judicial decisions are perceived by people to be fairly common in Turkey (GCR 2015-2016). Political interference, slow procedures, and an overburdened court system create high risk of ‘corruption’ in Turkey’s judiciary (ICS 2017, SGI 2017). The dismissal of more than 3000 members of the judiciary following the attempted coup in 2016 has further exacerbated concerns over political interference (HRR 2017). The prosecutors who initiated an anti-corruption investigation into several senior government officials and their families were accused by the government of abusing their authority and were subsequently suspended (DW, December 2014). The government’s response raised concerns of impunity and executive influence negatively impacting the independence, along with impartiality and efficiency of the judiciary (European Commission, October 2014). In light of the evidence and including the country information, the applicant, the Tribunal finds and concludes that he has a well-founded fear of persecution for [his] political opinion or that which could be imputed from false accusations levelled against him as being a member or supporter of an outlawed leftist political and terrorist party (and organisation) –the DHKP-C by corrupt elements within the Turkish police under the influence of the [C] family pursuant to s. 5J(1)(a) (b) and (c).

   [28] >

   In light of all the evidence, including the country information, the Tribunal is of the opinion that though the applicant’s concerns occurred in the past, which might be considered as remote because of the passage of time, the situation in Turkey as it has developed since 2016 following the coup but also the systematic illiberal and corruption feeling dispersed throughout the Turkish state and Turkish society, the cumulative effect of these influences in conjunction to the applicant’s situation and his past activities defending himself and his father from an organised local and influential criminal family may be sufficiently serious as to constitute prosecution.

7. The Tribunal is satisfied that cumulatively there is a real chance that the applicant is at risk of serious harm if he returns to Turkey now or in the near future and there is a real chance that persecution will occur. This conclusion is based on the applicant’s past experiences (prior to leaving Turkey on a ship bound for Australia) of his persecution from members of the [C] family and the local police in his village and later in Brusa and him being singled out for particular attention by the Turkish authorities because of accusations that he was a sympathiser and member of an outlawed political party and terrorist organisation that supports the conclusion that his fear(s) is well-founded. The country reports and recent disturbing elements in Turkey indicate to the Tribunal that even today, there has been no appreciable change in his treatment as a Turkish citizen by various judicial and security sections of Turkish state.

8. In this instance, the Tribunal considers the applicant’s cumulative circumstances are grounds for a well-founded fear of persecution.

9. Therefore, the Tribunal finds that the treatment of the applicant would face on his return to Turkey amounts to serious harm on cumulative grounds. Therefore, the Tribunal finds he satisfies s. 91R (1) of the Act. Furthermore, the Tribunal is of the view that there is a real chance of persecution on the grounds the applicant is considered (though false) a person with political views and opinions the Turkish state and security forces consider outlawed and a threat to the Turkish state and this is further impacted upon by his long dispute (and that of his family) with a local criminal (gang) family which has influence with the authorities and this is further compounded by the reality that he has no safe place of residence because of the corruption within the Turkish state does not provide him the possibility of a safe sanctuary.

10. 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 and therefore the applicant satisfies the criterion for a refugee set out in s.36(2)(a) of the Act.

    DECISION

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

    Peter Vlahos
    Member