1709997 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, a citizen of Turkey, a protection visa. The applicant had applied for the visa after arriving in Australia in October 2015. The delegate's refusal was based on the finding that the applicant was not a refugee under section 5H(1) of the Migration Act 1958 (Cth) and that there was no real risk of significant harm upon removal to Turkey.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee as defined by section 5H(1) of the Act. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of race, nationality, or political opinion, and whether there was a real chance of persecution in all areas of Turkey, with no effective protection available. The Tribunal also considered the broader country information regarding the situation for Kurds and pro-Kurdish activists in Turkey.

The Tribunal considered extensive country information, including reports from Human Rights Watch, the European Commission, and the Department of Foreign Affairs and Trade (DFAT), detailing the worsening general security and human rights situation in Turkey, particularly concerning Kurds and those perceived as anti-government. It found that pro-Kurdish political activists face a high risk of official discrimination, including arrest, monitoring, harassment, and prosecution, as well as a moderate risk of physical violence. The Tribunal accepted that the applicant had been threatened and harmed in the past due to his ethnicity and cultural activities. Consequently, the Tribunal was satisfied that there was a real chance the applicant would suffer serious harm, including loss of liberty and significant physical harassment, for reasons of his imputed political opinion and Kurdish ethnicity, and that this harm involved systematic and discriminatory conduct. The Tribunal concluded that the applicant had a well-founded fear of persecution and met the definition of a refugee under section 5H(1) of the Act, and that effective protection was not available.

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