1700715 (Refugee)

[2021] AATA 3391

1700715 (Refugee) [2021] AATA 3391 (16 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700715

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Justin Meyer

DATE:16 August 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.

Statement made on 16 August 2021 at 4:38pm

CATCHWORDS

REFUGEE – Protection Visa – Turkey – applicant was perceived to have taken action against the government – an atheist –race – Kurdish ethnicity – perceived as Alevi – familial relation to Kurdish politician – authorship of an article critical of the current state of Turkey – pro-democratic and anti-regime political opinions–state protection not available –decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 91,499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 2 October 2014 and the delegate refused to grant the visa on 5 January 2017.

3. The applicant appeared before the Tribunal on 18 June 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

10. The issue in this case are whether the applicant has a well-founded fear of being persecuted in Turkey for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that she will suffer significant harm.

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

    Identity

12. The applicant's identity is established as a [age]-year-old female, as evidenced by a Turkish passport. There is passport evidence before the Department and the Tribunal confirming her identity and nationality. The applicant claimed to be a citizen of Turkey in her application.

    Claims and evidence

13. The applicant, applied for the visa on 2 October 2014 and the delegate refused to grant the visa on 5 January 2017. The delegate refused to grant the visa on the basis that she was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and was therefore not satisfied the applicant's fear was well-founded.

14. The delegate also was not satisfied the applicant had a real chance of being subject to significant harm should she be returned to Turkey.

15. In her application to the department, the applicant claimed as follows:

    ·She was born on [date] in Aksaray, Istanbul, Turkey.

    ·She spent some years studying in Melbourne before moving back to Turkey in 2013 following her graduation.

    ·Since returning to Istanbul, the state of affairs was different to when she was there before due to the influence of the Justice and Development Party (AKP).

    ·During her employment she was given instructions stating that they had to be diligent with the information we released as the government might be monitoring the content.

    ·Her problems started at the time of the Gezi protests. She answered calls on social media to assist protestors who had fallen victim to police brutality by "providing some basics".

    ·A few days later, she was fired by her employer because she was perceived to have taken action against the government. She had allegedly helped a man remove the poison from his body caused by the gas bombs,

    ·Following the attacks, it was difficult to gain employment. She tried to work freelance, but she got rejected for being Kurdish and an atheist. She was recognised in interviews as someone linked with actions against the government.

    ·During this time she learned that her [Relative 1] [Mr A], an active Kurdish politician, had been heavily pursuing Kurdish rights in Turkey.

    ·When Recep Tayyip Erdoğan was re-elected as President, it became clear that she had to leave the country. During this time the government began to arrest anyone who was involved with the Gezi protests. As a result she was constantly targeted by strangers on public transport.

    ·On [date] September 2014 she was verbally abused by a taxi driver because of her tattoos.

    ·It is her intention to publish a book called '[Book 1]'. She would not be safe penning this book while residing in Turkey, as in the past some writers have been assassinated for writing against the government.

    ·After she arrived in Australia two of her friends were arrested, one of them on arrival at the airport after returning from a holiday.

    ·In March 2015, two undercover police officers entered her home in Turkey without a warrant and questioned her grandmother about her whereabouts.

    ·If she was to return to Turkey, she would be at risk of being arrested and tortured for her involvement in the Gezi protests. She would also be in danger because of her Kurdish ethnicity, atheism and political views. She would be unable to find employment because she is on the public record and therefore she would be at risk of destitution.

    ·The applicant attended a departmental interview on 16 November 2016. She made the following additional claims:

    -    She has no right to reside in any other country including Georgia. She cannot go there because she does not know anyone there or the language, and she would be unable to support herself. Georgia would deport her to Turkey. Georgia also persecutes atheists and Kurds.

    -    She was born atheist into an atheist family. Although her father was born `Astrian' [Zoroastrian], she does not believe. Her atheism is not a product of a conversation or a search; she was never curious about religion; religion is not relevant to her. She never had religious education and no one in her family is religious. No one in her family has been harmed as a result of being atheist.

    -    It is known that she is an atheist because she has tattoos — one of which she obtained in Istanbul - and because the 'religion' field on her ID card is blank, which is taken to mean that she is atheist. When country information was put to her, she conceded that she could be perceived as Alevi on this basis.

    -    She was not attacked or tortured for being atheist. But she was discriminated against, for example, she would get skipped in the queue when changing residence or renewing her ID.

    -    Atheists are tortured and harassed in the streets for adopting non-Muslim behaviours. Sometimes people who are living in mixed gender households with people unrelated to them are arrested by plain clothed police.

    -    She worked for [Employer 1]. [Employer 1] is similar to [another business in Australia]. She worked for them until April 2013.

    -    

    While working here she lived with her mother and grandmother. She later

    
    

    became self-employed because it was hard to get a job, and continued to live with her mother and grandmother in Istanbul.

    -    A few days after the Gezi Park protests, she was fired by [Employer 1] for assisting people affected by the police brutality on the first day of the protests.

    -    She then started working for [Employer 1] on a freelance basis because she was unable to work full time and wanted to have the ability to travel out of the country. She still attended the offices to complete her project for the company. She was freelancing for the period between leaving the company as a formal employee and the end of the protests. She undertook to provide written clarification regarding her employment at [Employer 1].

    -    When the protests ended she could not get any more freelance work or work in general. She applied to work [at] a [company]. She passed the interview but when she sent her ID card in they concluded that she was an atheist and she did not get the position.

    -    She did not attend the Gezi park protests but she was in the area as they took place very close to her office at [Employer 1]. On the first day of the protests, when she realised what was happening, she went on social media where she saw posts and photos and pleas for people to bring water and lemons to assist those affected. She gathered some items and went to the site, where she assisted an old man and his granddaughter. The protests continued for a month and they occurred around late May or June 2013. Due to the gas bombs, she experienced blurry vision for two to three months.

    -    She shared photos of those injured on [Social media 1] (not [Social media 2]) but she has since deleted the account, which used her real name. She undertook to reactivate the account and take screenshots of the relevant posts. The photos were stored in her old phone and when she first arrived in Australia she emailed them to her lawyer.

    -    As a result of her social media posts, she believes that she is "on the public record" of those marked for arrest as the government tracked down all the social media reports of those who shared information about the protests on [Social media 1]. She knows she is on this list because they searched for her at her grandmother's shouse on [date] March 2015, Despite that being almost two years later, it occurred because after Erdogan became president the government re­opened the files on the protests and began searching for people.

    -    DFAT country information was put to her that no arrests were reported in relation to the protests in 2014 and 2015, and that the Ministry of the Interior conducted investigations into police brutality, leading to a number of police officers being sanctioned _.by late 2013. She explained that perhaps she is a target not just because of Gezi but also her book publication and her familial relation to Kurdish politician [Mr A].

    -    She has written a manuscript for a book that is due to be published called "[Book 1]" under her alias [deleted]. She submitted it for publication around August 2014 after meeting the publishers in [Country 2], and earlier this year (2016) she submitted the final version. She undertook to provide a copy.

    -    It is not a political work; it is a coffee table book. She wrote of her personal view of Istanbul, how it used to be liberal and inspiring, but that later it changed. She also wrote about the Gezi Park protests.

    -    She believes that the manuscript became known to the government somehow around August 2014. Although it has not been published, it was a 'talked about' book on the interne. She undertook to search and provide Internet material mentioning or discussing the work.

    -    No one in her family has been harmed or arrested on account of their Kurdish ethnicity.

    -    Her [Relative 1] [Mr A] is a Kurdish politician and activist who has been missing for the last two or three months.

    -    She is identifiable as Kurdish based on her family being Kurdish but not based on her name, which is Turkish. She was not sure how people can tell that someone is Kurdish.

    -    She is at risk of being arrested and charged with terrorist offences upon return to Turkey on the basis of her ethnicity in combination with her involvement in Gezi Park and her book.

    -    If she is returned to Turkey, she will be arrested at the airport and charged with terrorism and treason. This is because she acted against the government in giving first aid to protestors and posting about it on social media, and wrote a book in which she writes about the protests.

    -    She believes that she was not arrested in Turkey because it was not until after the election of Erdogan as president that the arrests started. Between his election and her departure she was in hiding at her grandmother's house.

    ·The link between Erdogan's election and the Gezi Park protests is that when he was elected he reopened the files relating to the protests and started arresting journalists. He did so because Gezi represents political opposition: it became more than a small environmental protest. Therefore, Erdogan is interested in anyone who expresses opposition, works in [specified industry], or who is Kurdish.

    ·She is not a political activist, but she knows that she is a person of interest to the government because the police came looking for her at her grandmother's house. Conceding that if the police could find her address, they could find out that she had left Turkey, she believes that the police wanted to scare her and ask her to return to Turkey. She referred to the letter provided by her grandmother that she submitted at the interview and which she referred to in her written claims.

    ·She also referred to the letter written by her [Relative 1] (and Kurdish politician) [Mr A] that she submitted at interview. He writes of the danger that she faces because of her Kurdish ethnicity and for her involvement in Gezi. The applicant claimed that it was written and sent to her right after she arrived in Australia in 2014. She was unable to explain why she never mentioned this letter in her written claims dated 18 March 2015. She then said that she received his letter after she made her statement.

    ·Relevant information was put to the applicant for comment:

    ·At the time of the Gezi Park protests that took place in mid-2013 (and after she was dismissed from [Employer 1]) she travelled to [various countries]. She did not seek protection in any of those countries, instead returning to Turkey each time.

    ·The applicant replied that she thought things would "mellow down" after the protests and that the government would not pursue anyone. Thus she did not believe she needed protection so she returned to Turkey each time. At the time of the protests her friend [name deleted] was with her so they wanted to "get away" from it all, thus their trip to [a country]. Until Erdogan's election on 14 August 2014, "there was hope". Until then she believed she was "off the radar".

    ·The Government authorities are aware of those who exit and enter international airports. She claims that she was and still is a person of interest for the Government. During and after the Gezi Park protests, she took four or five trips outside Turkey, exited and entering on her valid passport.

    ·She replied that the arrests associated with Gezi Park and those perceived to be opposed to the government only started 4-5 months after Erdogan's election in August 2014.

    ·The applicant submitted the following documents at interview:

    -    Emails between the applicant and [Mr B] of [a named company] sent between 27 July and 18 August 2014;

    -    Letter of support from [Mr A] (undated);

    -    Letter from [sister] of [Mr A]) (undated);

    -    Letter from applicant's grandmother [name deleted] dated 17 March 2015;

    -    Photograph of an elderly woman seated on a sofa receiving oxygen (undated). The applicant's lawyer forwarded written submissions dated 23 November 2016:

    -    The applicant is at risk due to her acts in defiance of the Turkish government: her involvement in the Gezi Park protests and her authorship of an article critical of the current state of Turkey that was due to appear in a Turkish publication after she left Turkey.

    -    The applicant is a target because she is Kurdish and has familial ties to a Kurdish politician. The letter from [Mr A] had been previously provided to her former lawyer to be forwarded to the Department.

    -    She is automatically identifiable as Atheist due to her tattoos and westernised appearance and has experienced negative treatment in Turkey on this basis.

    -    She cannot avail herself of effective protection in Georgia.

    -    The following documents were attached to the submission:

    -    Materials relating to effective protection;

    -    Newspaper articles relating to Kurds in Turkey;

    -    Three pages of plain text purporting to be the applicant's article "[Book 1]";

    -    Emails between the applicant and [Mr B] of [a named company] sent between 27 July and 18 August 2014;

    -    Letter of support from [Mr A] (undated).

16. The applicant’s evidence in the hearing was broadly consistent with the accounts she gave the department and in her other submissions.

17. In the hearing the applicant outlined her Kurdish heritage: her mother is of Kurdish background. She is from eastern Turkey but migrated to Istanbul. Her father is of [Christian] background, but the family are atheists.

18. Her [Relative 1] is a Kurdish MP [Mr A]. She has met him nay ties on family visits. He lived close by. He has been in the national parliament for 10 years. His father was murdered in jail. Having such relatives negatively increases her profile she said. She added that every employer would know who she is and would want to know why she was fired previously.

1. Her contribution to the book ‘[Book 1]’ is unpublished. There are some big names in the book. [Details deleted]. She named the publishing house involved. It was a commercial proposition. Its target audience is anyone interested in Istanbul. Her section is written under a pseudonym.

2. The Tribunal invited the applicant to detail the harm she experienced and feared as an atheist. She said being a Christian would lead to less harm, as atheists are treated as lesser human beings. She was harassed in the street. She was called a prostitute. People yelled at her and invoked the fear of God. She was told off for drinking water. She did not pray five times a day as people expected.

3. She did not seek asylum in [named countries] when travelling there as there was no support system for her there. She does not speak [Country 2 language] for example. She could not get permanent residence in [Country 2].

4. The Tribunal discussed with the applicant the most recent DFAT report on Turkey[1] and these relevant sections for example:

   [3.46] Critics of the Government: Protesters

   Article 34 of the Constitution guarantees the right to hold unarmed and peaceful meetings and demonstration marches without prior permission, but provides for this right to be restricted by law on the grounds of national security and public order. Under the state of emergency, and the subsequent legislative normalisation, this freedom became severely restricted, particularly when exercised by groups protesting against the government. According to Articles 9 and 11 of the State of Emergency Law (2016), measures could be taken during the state of emergency to prohibit, postpone or impose permission obligation for assemblies and demonstrations in closed and open areas, as well as to determine, publicise, supervise, and disperse areas of assemblies and demonstrations. Even before the state of emergency, protestors faced legislative restrictions: the Law on Demonstrations and Meetings (1983) requires all members of a protest organising committee to submit a signed declaration to the district governor’s office 48 hours prior to the event; the Law Amending the Law on Powers and Duties of the Police, Other Laws and Decrees (2015) allows police to detain any protestor without consulting the prosecutor’s office, and imposes a five year prison sentence on protestors who cover their faces fully or partially during a demonstration.

   Critics of the Government: Defamation

   [3.51]  In recent years, authorities have indicted hundreds of individuals, including journalists and minors, on defamation charges for insulting state institutions. President Erdogan has filed significantly more cases under Article 297 than his predecessors. Media reported Erdogan had filed 1,845 cases under Article 297 between August 2014 and March 2016. According to the Human Rights Association, during 2019, 36,664 people were investigated under Articles 299 and 301, of which 6,131 progressed to criminal cases, and 11,337 did not proceed past initial investigation. Media reporting alleged there was a 13-fold increase in convictions between 2016 and 2019 for insulting the president

   [1] DFAT Country Information Report Turkey, 10 September 2020

5. The Tribunal contemplates whether the applicant can be described as a protestor and might be so considered now or in the reasonably foreseeable future.

6. She claimed in her submission to the Tribunal

   ·     During the applicant’s employment in a [firm] in Istanbul, she was directed by her employer to monitor the information being released as the government was monitoring all public content. Although the applicant followed these instructions, she became aware that the government was censoring or controlling a lot of the media.

   ·     Issues began in May 2013 when the Gezi protests commenced. The applicant was in her home with her friends when a gas bomb was thrown through her apartment window, forcing her to evacuate. No reports on the protests were being released in the media, due to government censorship, however social media posts showed policemen assaulting civilians who were camped in Gezi Park. Further news reports wrote that protesters who posted about police brutality faced criminal charges. As a response, the Turkish government blocked social media outlets, such as Twitter and YouTube from being accessed within Turkey.

   ·     The applicant was directly affected by this censorship when she responded to posts on social media and provided general information about civil rights to those affected by police brutality. She subsequently was terminated from her employment as she was perceived to have taken action against the government. After this, the applicant found it extremely difficult to gain employment, as they were aware of her social media presence and her status as an Atheist with Kurdish heritage.

   ·     If the applicant is to return to Turkey, she will be targeted by the authorities due to her participation in the Gezi protests and her status as a Kurdish atheist. In March 2015, two undercover police officers forcibly entered the applicant’s home, without a warrant, in Turkey and questioned her grandmother about her whereabouts, showing that they are still interested in her. A letter from the applicant’s grandmother was provided to the Department in support of this.

   ·     As provided in the Applicant’s witness statement at the time of the Gezi Park Protests the Applicant was in her home in Turkey with her friends. During this time the applicant heard excessive noise from outside of her house and shortly after a gas bomb was thrown through the window of the house which consequently led to the applicant evacuating.

   ·     Once the applicant had evacuated she noticed that there was citizens running away from police. In order to inform of herself of what was happening, the Applicant searched the internet and was able to locate reports on social media platforms that police had attended to Gezi Park and attacked protesters who were camping out in Gezi Park.

   ·     In the midst of these attacks, the applicant began to notice people on social media platforms pleading for assistance (marking themselves on [Social media 2], pleading for water and lemon). The applicant was employed at [an employer]. The applicant was at home with one of the [colleagues] late at night. The applicant’s home was [not far] from the [a] landmark, which is also closely located to the agency. Whilst the protests were occurring at the park, people began running down [a named] Street, and hiding in narrow streets and apartment entries. A gas canister was launched into the applicant’s apartment from the street and then the applicant immediately looked down from a window and saw police chasing people. As the gas canister was filling smoke up in the room, the applicant and her colleague left the building to see what was occurring on the street. The applicant saw hundreds of people running. All the news channels were blocked and the applicant pulled a stranger aside to ask what was happening. The old man’s eyes were red and watery, he couldn’t see clearly and his granddaughter was crying beside him. The stranger responded that police were shooting people at the park and the applicant was informed about the protest. Even civilians who were not involved in the protest started running because of the gas and because police were arresting anyone that was on this particular street.

7. On balance the Tribunal is prepared to accept that the applicant has been and continues to be political critic of the government and protests about their actions. She is an outspoken person and fervent in her criticism and this was apparent from her evidence and the way she gave it in the hearing.

8. Her account has a consistent narrative and was in keeping with the country information on the protests in Istanbul of the time.

9. She provided photographs of a cannister lobbed into an apartment which corroborated her account.  Many other photographs were taken of damage and injured people which I am prepared to accept she either took or shared online, based on her consistent account.

10. While the delegate doubted the dates of her termination of employment and whether she had a real involvement in protests the Tribunal overall received a strong impression of the applicant being a protestor or a fellow traveller in an environment where fine distinctions are generally not made by the Turkish authorities. For example, people appear to be slotted in a group regardless of their individual characteristics. DFAT informs us that to be a critical academic for example led to being dismissed summarily for thousands:

    [2.35]  Human Rights Watch (HRW) reported in May 2018 that more than 5,800 academics had been dismissed from public universities under emergency decrees issued since the July 2016 attempted coup. Approximately 2,000 of those dismissed had signed a petition in January 2016 on behalf of the ‘Academics for Peace’ group, which strongly criticised the government’s military campaign in the southeast against the PKK and called for an end to the violence. In July 2019, the Constitutional Court ruled the ‘Academics for Peace’ prosecution constituted a violation of their right to freedom of expression. However, following the decision most have not been reinstated to their previous positions. Those dismissed on other grounds have limited opportunities to challenge their cases. The emergency decrees ordering the firing of academics include no evidence of alleged wrongdoing nor individualised justifications

11. Furthermore, even low-level activism or to the /Tribunal’s mind ‘click-tivism’ spells more risk for Kurdish people:

    [3.45] DFAT assesses pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for high-level politicians and low-level activists, and applies nationwide.

    …

    [3.54] DFAT assesses the government’s active use of defamation laws has limited the ability of critics to protest government policies. In particular, those perceived to have criticised the president personally face a high risk of prosecution and conviction, which may lead to a prison sentence.

12. Even if the applicant’s protest accounts have exaggerations, I am not prepared to rule out in a real sense her activities altogether, and find that though they were most likely at the lower end of the scale they nonetheless pose a real risk for her now or in the reasonably foreseeable future based on the assessment of risk in the most recent DFAT country information which I must give regard to. 

13. The applicant also has a number of what could be consider ‘aggravating’ aspects to her profile that might increase her risk. I accept she is an atheist. She claimed in her submission to the Tribunal that:

    ·The Applicant has, on two occasions, been targeted by strangers on public transport.

    ·In particular, and as mentioned above, on [date] September 2014, the Applicant was in a taxicab driving to [a place]. During the car ride the driver of another vehicle noticed the Applicant’s tattoo and began to verbally abuse the Applicant and run her car off the road. This unfortunately led to the car the Applicant was in being driven off the road and flipped upside down. The applicant provided an image of the flipped taxicab with her initial application for protection and is annexed to this submission for the member’s review

    ·Previous to the above taxi incident, the Applicant was publicly abused in the ferry on her way back from work for having tattoos, which identified her as a non-Muslim. A male commuter verbally abused the applicant for lacking any morals, demanding that she wear a headscarf and that she is a threat to society. He continued by trying to encourage other commuters to share the same sentiment.

    ·In government offices, the applicant has been refused welfare and was prohibited from receiving any welfare payments. After the applicant was dismissed from her employment after the Gezi Park protests, she struggled to find employment thereafter. For months, the applicant visited welfare offices in an attempt to earn a living. The applicant would take a customer number and wait for it to be called by the welfare officers. They would deliberately skip the applicant’s number and she would go home with no assistance.

14. Based on a consistent account the Tribunal accepts that she is an atheist who has been discriminated against and abused for her views. Having tattoos on balance make her more likely to be seen as ‘worldly’, non-traditional and non-religious. Atheists have been placed under a general category of opponents: 

    [4.1]  According to some human rights organisations, Turkey experts and Turkish opposition parties, the Turkish government is using the failed coup not just to dismantle the Gülen movement but also to settle scores with diverse groups and individuals who deviate from the norm set by the government. This might include human rights defenders, Kurdish activists, academics, journalists, Alevis, atheists, Kemalists and people on the left of the political spectrum.[2]

    [2] The Ministry of Foreign Affairs of the Netherlands, General Country of Origin Information Report Turkey March 2021

15. Cumulatively there is a profile of the applicant due to her ethnicity and membership of social group/s of protestors and atheists/ modernists.

16. Having questioned the applicant I find that she holds strong views, is passionate and would find it unlikely that she has changed as a person and would not feel compelled to speak out and act as she has in the past. Her profile as a Kurd is ascertainable and I note her [Relative 1]’s later statement to the Tribunal affirming her identity. She will be likely linked to his anti- government point of view. I also find that can cannot be reasonably expected to modify her behaviour or hide her identity or characteristics. She could not move to a part of Turkey where she would be at lower risk as her characteristics are evident throughout Turkey. She does not have a right to live elsewhere, as established by the delegate in her conclusion about inability to reside in Georgia. Her not claiming asylum in other countries she visited is understood as being because her position had not yet become untenable as events unfolded or because she did not have an ability to claim asylum. State protection would be untenable as the state and its personnel is a potential cause of harm.

17. Therefore, I find that the applicant has a well-founded fear or persecution on the grounds that she is of Kurdish ethnicity or race and has pro-Kurdish, and pro-democratic and anti-regime political opinions and atheistic views.  

18. The risk she faces is a moderate risk and is a real risk now and in the foreseeable future if she is returned to Turkey.  

19. The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of her ethnicity and political opinion. On the basis of the evidence before it, including the country information cited above, the Tribunal is not satisfied that state protection is available to the applicant in Turkey. The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Turkey. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Turkey for the reasons stated.

20. It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether she comes within the definition of a refugee contained in s.5H, it accepts that she is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, she meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

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

    DECISION

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

    Justin Meyer
    Member