1715386 (Refugee)

[2023] AATA 2518

1715386 (Refugee) [2023] AATA 2518 (26 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715386

COUNTRY OF REFERENCE:                   Türkiye

MEMBER:James Silva

DATE:26 June 2023

PLACE OF DECISION:  Sydney

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 26 June 2023 at 5:07pm

CATCHWORDS
REFUGEE – protection visa – Turkey – political opinion – conscientious objector to military service – successive deferrals by enrolling in university courses – unclear history and limited supporting evidence – failure to respond to call-up letter, arrest warrant and duration of absence – letters from conscription office and solicitor – country information – deferral and evasion of military service – not a conscientious objector but genuine wish to evade military service for personal reasons – no further deferrals or exemptions available – subject to fine, required service or imprisonment – law of general application – totally of circumstances and cumulative effect of claims – state of emergency after failed coup attempt – small but real chance of adverse attention as member of particular social group of draft evaders – activities in Australia not for purpose of strengthening claim – decision under review remitted

LEGISLATION  
Migration Act 1958 (Cth), ss 36(2)(a), 65, 91R(3)

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Randhawa v MILGEA (1994) 52 FCR 437

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. The applicant is a man in his [Decade] from Türkiye.

2. The applicant arrived in Australia [in] March 2014, as the holder of a student visa. He applied for a protection (class XA) visa on 19 August 2014. On 7 July 2017, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. For the following reasons, the Tribunal remits the decision under review for reconsideration.

   Criteria for a protection visa

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   Claims and evidence

   Protection claims

6. The applicant claims to be an Alevi Kurd, who experienced religious and racial discrimination when grouping up in Istanbul. He also claims to be a supporter of leftist and pro-Kurdish political groups.

7. The applicant claims to have outstanding military service obligations, to which he has a conscientious objection based on his ‘peaceful personality’; and which is also informed by his racial, religious, and political background. He claims to fear punishment for having evaded the draft to date; to still have outstanding military service obligations that he will have to perform; and that, in his dealings with the military, he will be subject to physical and verbal abuse as an Alevi Kurd, and conscientious objector. More generally, he claims that he is at risk of official and societal targeting, due to his racial, religious and political profile.

   Background

8. The applicant is a [Age] year old man born in Istanbul’s [District 1]. He gave a residential address in [Suburb], [District 2].

9. He gives his ethnicity as Kurdish and his religion as Alevi. His languages are Turkish and English. He also wrote that he speaks Zazaki, a language spoken by Kurds in eastern Türkiye. At hearing, the applicant said that in fact he does not speak Zazaki, but understands his grandmother when she speaks it.

10. The applicant attended primary and secondary school in Istanbul, up to [Year]. He was unemployed for a few years.

11. It was difficult to establish a clear account of the applicant’s places of residence, continued studies and his work, in the period from [Year] to 2014. These are critical to an assessment of his protection claims, in particular: (a) whether he had any outstanding military service obligations and, if so, how he avoided conscription; and (b) whether he participated in any political activities, or has an adverse profile for any other reasons.

12. In his protection visa application, the applicant wrote that he lived in Istanbul until 2005, and in [City 1], a large city some [Distance, direction] of Istanbul, from then until November 2013. He gave the following details of his education after completing high school in [Year]: (a) 2008-2013: [University 1, Department 1], [City 1]; and (b) September-November 2013: [University 1, Department 2]. He indicated that during the period from 2005 to 2008, he worked in a [Workplace] in [City 1]. The Tribunal explored this with the applicant in detail (considering country information that Turkish male citizens are required to register for military service at the age of 20 and commence military service from the age of 21, in this case, [Year and Year] respectively).

13. The applicant addressed these gaps at hearing, in a piecemeal way, and in a detailed statutory declaration dated 1 September 2021. Given the centrality of this to his claims, the Tribunal summarises these, with footnotes for the supporting evidence that he provided.

    §  He stayed with an uncle in [City 1] from January to April 2004, but returned home to Istanbul and lived at his mother’s address. He worked in a [Workplace] from June to December 2005.

    §  In June 2006, he took university entry examinations, and enrolled in a [Subject 1] course at ‘[University 2]’ in [City 2] (a city some [Distance, direction] of Istanbul). The applicant stated that the sole purpose of the enrolment was to avoid military service, and he did not move to [City 2] or attend classes. The enrolment expired in April 2007.[1]

    §  The applicant enrolled in a [Subject 2] course at [University 1, Department 1] in September 2008; this was cancelled in August 2013[2]  He continued living in Istanbul until 2009, and maintained that as his registered address. However, in practice he lived in [City 1] from 2009 to 2011, working there as [an Occupation 1].

    §  In 2010, he again took university entry examinations, and this time enrolled in a [Subject 3] study course at [University 3].[3] In 2011, he returned to Istanbul, where he had successive jobs in [Workplaces].

    §  In 2013, the applicant again took university entry examinations, which resulted in his enrolment in [a Subject 4] course at [University 1].[4] He continued living at his mother’s address until his departure for Australia in March 2014.

    [1] The applicant submitted a letter indicating that he enrolled in a [Subject 1] course at the university’s vocational high school on 11 September 2006, and this was cancelled for non-attendance on 20 April 2007.

    [2] A letter from the [University 1, Department 1], issued on 19 August 2021, gives the dates of enrolment and of its cancelation in August 2013.

    [3] A proof of student status certificate, dated 19 August 2021, states that the applicant enrolled in a [Subject 3] Department course on 15 October 2010; for study in a [Number]-year long course.

    [4] A [University 1] student document records the applicant’s enrolment in [a Subject 4] course on 3 September 2013, for the 2013/2014 academic year.

14. The applicant linked his successive enrolments with his efforts to avoid military conscription. He provided correspondence from the Ministry of National Defence (see below) showing that he had outstanding military service obligations as of 1 March 2016 (when he was already in Australia).

15. The applicant’s parents are from eastern Türkiye. His father was born in [City 3], a Kurdish majority city in eastern Türkiye; and his mother is from [Town 1], Muş province. His parents met at university. They divorced in [Year]. The applicant said that his biological father is retired, in Istanbul.

16. The applicant’s older brother, [Mr A], was born in [Town 2], a town and district of Elazığ Province in the Eastern Anatolia, in [Year]. He went to [Country 1] to study, and secured permanent residency there (not as a refugee). The applicant claimed that [Mr A] is politically active in [Country 1], through the Kurdish Association. His older sister was born in Bingöl Province in the Eastern Anatolia, in [Year]. A younger half-sister was born in [District 1] in [Year].

17. The applicant holds a Turkish passport issued on [in] 2013 (when he was [Age] years old). It is valid for ten years. At hearing, he said that he had held a Turkish passport as a child, although he never used it. In response to the Tribunal’s questions as to whether he held any other passport as an adult, he replied that he did not. With his brother in [Country 1], he had felt obliged to remain in Türkiye. The Tribunal explored this with the applicant given his claim that he had felt under pressure to do his military service from 2005, and his completion of an intensive [Language] course in September 2013. The applicant explained he had studied [Language] with a view to migrating there, to join his brother, but his brother and a migration agent had warned him that his prospects of obtaining a [Country 1] visa were slim (he appeared to link this with his failure to have completed his military service). With that in mind, he obtained a passport and opted to apply for an Australian student visa. He initially went to Perth, as his brother’s childhood friend was living there.

18. The applicant was granted a student visa on 6 March 2014, and arrived in Australia [Number] days later. As noted above, he applied for protection some five months later. According to his written and oral evidence, he lived in Perth for three years, before moving to Sydney. According to his oral and documentary evidence, the applicant runs a small [business] in Sydney, and lives with his [Country 2] partner, with whom he has a child born in [Year].

    Evidence

19. The Tribunal has before it a large volume of material, including the following:

    To the Department

    §  The protection visa application, including Forms B and C, lodged on 19 August 2014.

    §  A 9-page statement of claims, in English (translated from Turkish).

    §  The protection (Class XA) visa decision record (‘delegate’s decision’) of 7 July 2017.

    § A partial photocopy (biodata page only) of the applicant’s Turkish passport, issued in [District 2] in [2013]. The applicant sent a complete copy to the Tribunal.

    To the Tribunal

    §  The application for review, lodged on 17 July 2017, has attached to it a copy of the delegate’s decision.

    §  A detailed 36-page submission dated 9 August 2021, which includes a summary of the applicant’s claims and evidence, and attachments with country information[5] and legal arguments.

    [5] These included complete copies of the DFAT Country Information Report – Türkiye, September 2020; and the UK Home Office Country Policy and Information Note: Türkiye: Kurds, February 2020; and Country Policy and Information Note: Türkiye: Military Service, September 2018.

    §  Statutory declarations from the applicant, dated 8 August 2021 and 8 September 2021 (in Turkish, with English translations).

    §  Supporting documents:

    Identity and similar documents

    -   National ID card, issued in November 2013 (Turkish, with English translation).

    -   Birth registry record for the applicant.

    -   Social Security Agency Registration, for the period to March 2013.

    Political and cultural activities, and education in Türkiye

    -   To whom it may concern letter of 13 December 2013, from [University 1], certifying the applicant’s enrolment in [Department 2] from September 2013; and a ‘new student document’ relating to that course.

    -   Letter purportedly from the [Political party] headquarters, Ankara, dated 16 August 2021.

    -   Letter from a vocational school in Türkiye, relating to the applicant’s enrolment in a [Subject 1] course from September 2006 to April 2007

    -   To whom it may concern letter dated 19 August 2021 from [University 1], certifying the applicant’s enrolment in a [Subject 2] course from September 2008 to August 2013.

    -   [University 3] proof of student status, dated 19 August 2021, certifying the applicant’s enrolment in a [Subject 3] course from October 2010.

    -   A membership card for the [Suburb] Cultural Centre and Cem House.

    -   Photograph showing the applicant in Türkiye, with long hair, at student events, and recovering from an eye operation (purportedly linked with his participation in Gezi Park protests).

    -   Two photographs of the applicant’s brother, [Mr A] at Kurdish protests in [Country 3] and [Country 1].

    -   Photographs of the applicant at various functions in Sydney (Newroz and political protests), in March and May 2018, March and October 2019, and March 2021.

    -   A one-minute video of Newroz celebrations in March 2021, which pans to show the applicant in the background.

    Letters of support

    -   Detailed ‘Legal Expert Report’ and ‘assessment’ from solicitor, [Mr B], in Ankara.

    -   [Ms C] and [Mr D], [Organisation], dated 4 August 2021.

    -   Statutory declaration from [Mr E], dated 13 August 2021, a person who describes himself as a certified dede.

    Conscription

    -   Ministry of National Defence, [District 3] Conscription Office, dated 3 December 2013, stating that the applicant has no military service obligations until 31 December 2014.

    -   ‘Military status letter’ from the Military Conscription Office in [City 3], dated 17 March 2016 (in Turkish, with English translation), identifying the applicant as a draft evader  (for having failed to respond to a roll call prior to 4 February 2016.

20. The applicant appeared before the Tribunal on 18 August and 7 September 2021, to give evidence and present arguments. The hearing was conducted via videoconference, in light of the restrictions that applied during the COVID pandemic. An accredited interpreter in the Turkish and English languages assisted. The applicant was accompanied by his representative, Mr Kenan Bircan, of International Skilled migration Pty Ltd.

    Country of reference

21. The applicant claims to be a Turkish national. He speaks Turkish, holds a Turkish passport and is familiar with that country. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Turkish national. Türkiye is therefore the country of reference when assessing the applicant’s refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    Consideration of claims and evidence, and findings

    Assessment of claims

22. When considering claims the Tribunal must first make findings of fact, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that the assessment of credibility is inherently difficult, and that special considerations apply in relation to asylum seekers. It has had regard to guidelines on the assessment of credibility issued by the Tribunal, the Department and others.[6] In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.

    [6] The Tribunal has before it the AAT’s Migration and Refugee Division’s Guidelines on the Assessment of Credibility; Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines); and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, re0issued February 2019 at [203]-[204] (UNHCR Handbook)

23. In the present case, the delay between the applicant’s arrival in Australia on a student visa in March 2014, and his lodgement of a protection visa application only in August 2014 raises questions about the genuineness of his claims and his need for protection. At hearing, the applicant said that he initially felt unwell in Australia, and when he eventually found an interpreter, this person also fell ill. The Tribunal found the applicant’s evidence to be weak and unsubstantiated. In other evidence, the applicant said that he initially went to Perth because a friend of his brother lived there. This suggests that he had contacts in Australia and could have sought their guidance on how to find a migration agent and interpreter.

24. A significant complicating factor in this case is that the applicant struggled to provide details, and supporting evidence, regarding his whereabouts in Türkiye, and his education enrolments and employment. This is crucial in this case, given that his protection claims rest critically on his (claimed outstanding) military service obligations. In the applicant’s case, he was required to register for military service in [Year] (on turning 20), and to commence military service in [Year]. He claims to have outstanding military service obligations, and to have avoided conscription through a succession of enrolments in study courses, from 2006 until his departure from Türkiye in March 2014. The delegate – on the basis that the applicant did not provide any evidence of his [military service] deferral, or of any studies enrolment during the relevant periods – that he had in fact completed his military service at some point between 2003 and 2008.

25. The Tribunal shares the delegate’s concerns about the applicant’s delay in lodging his protection visa application and is sceptical about the applicant’s explanations for this. While this raises some concerns as to his need for protection, it is not dispositive of the issue.

26. The applicant’s muddled account of his circumstances in Türkiye does raise concerns about his claims to have outstanding military service obligations, and also his associated claims about his experiences as an Alevi Kurd and a person with political views. Nonetheless, he provided a range of evidence, in particular correspondence from the Ministry of National Defence (March 2016) and successive enrolments at universities (and associated vocational high schools), that does address the delegate’s concerns. In the Tribunal’s view, the Ministry of National Defence letter and the applicant’s enrolments in various courses only make sense if, as claimed, he has outstanding military service obligations, and seeking to avoid these.

27. The Tribunal’s full assessment follows. As it has a range of concerns about the applicant’s account of his circumstances in his home country, it considers it necessary to examine all of these materials in detail, rather than accept his claims and evidence at face value.

    The applicant – Alevi Kurd

28. The applicant claims to be of Kurdish ethnicity and the Alevi faith. He seeks protection in part due to his ethnic and religious identity, which in turn forms the backdrop for his claims based on politics and military service.

    Kurdish ethnicity

29. The applicant has consistently claimed to be of Kurdish ethnicity. Although he wrote on his protection visa application that he speaks Zaza, a Kurdish dialect, he clarified at hearing that he only understands it when his grandmother speaks it.

30. The Tribunal notes that the applicant’s parents’ places of birth in Dersim and Muş provinces, and his brother’s birth in [Town 2], are in the eastern parts of the country, with Kurdish populations. General country information indicates that many Kurds left their home areas in response to military actions, particularly during the 1990s; and that others also left because of perceived better opportunities, often heading to the cities of western Türkiye. After a period of relative calm and some Kurdish integration during the 1950s and 1960s, violence between Kurds and the state intensified during the military interventions and crackdowns on Kurdish activists in the 1970s and 1980s. The fighting reached a peak in the 1990s, with thousands of civilians killed and hundreds of thousands forced to leave their villages.[7] The chronology of the family’s movements is consistent with country information about the internal migration of the Kurdish minority.

    [7] Taspinar, O 2005, ‘The Kurdish Question in Kurdish Politics’, Kurdish Nationalism and Political Islam in Türkiye, Routledge, New York, p.84 & pp.87-90; p.93 & pp.97-98; pp.106-107; Human Rights Watch 2012, Time for Justice: End Impunity for Killings and Disappearances in 1990s Türkiye, September, p.1

1. Other country information indicates that the applicant’s neighbourhood in Istanbul, in the area known as [Suburb] in [District 2], has a well-established Kurdish population.

2. The applicant’s claim to speak no Kurdish (but to at least understand the Zazaki dialect) makes sense, as his parents were [Occupation]s in Istanbul, and his Zazaki-speaking grandmother lived with the family. It is also consistent with DFAT’s advice in June 2014[8]: ‘Most young Kurds are bilingual in Turkish and a Kurdish dialect, while some are monolingual in Turkish.’ The most recent DFAT country information report[9] indicates that, while the government has made ‘efforts to wind back discriminatory restrictions on the public expression minority identity’, Kurds continue to face ‘official discrimination and some sporadic societal discrimination based on their ethnicity’. It also notes[10] comments from human rights observers that some Kurds in western Türkiye are reluctant to disclose their Kurdish identity, for fear of provoking a violent response. The Tribunal finds it unsurprising that the applicant’s university-educated parents used the Turkish language, and did not expose the applicant or his siblings to Kurdish, in part, due to the stigma attached to the use of Kurdish.

   [8] DFAT, DFAT Thematic Report – Kurds in Türkiye, 2 June 2013

   [9] Department of Foreign Affairs and Trade (DFAT): Country Information Report – Türkiye, September 2020, paragraphs 3.2-3.9

   [10] Ibid, para 3..7.

3. The Tribunal notes and takes into account the supporting letters from Kurdish groups in Türkiye and Australia, acknowledging his background.

4. Based on this evidence, the Tribunal accepts that the applicant is of Kurdish ethnicity. The Tribunal finds that he is well-integrated into Turkish society. While he does not present as Kurdish, the Tribunal is satisfied that any exchange about his personal and family background would reveal this. The applicant’s Kurdish is more or less interwoven with his overall claims and evidence.

   Alevi Kurd

5. The applicant also claims to be of the Alevi faith, identifying in his original statement of claims as ‘Kurdish Alevi’. Although the statement of claims includes on pages one to three general country information about Kurds and Alevis (possibly copied from other sources), the applicant gave scant information about his or his family’s own religious practice.

6. At hearing, the applicant said that his mother practice the Alevi faith and attended the local cem (house of worship), but he saw it more as a philosophy and participated in only a few activities.

7. Given the applicant’s background and origins, and in light of his oral evidence, the Tribunal accepts that he is a nominal Alevi, but not religious or practising. It accepts, however, that this forms an integral part of his identity and, importantly, the way he is perceived officially and socially.

   The applicant’s background and experiences

8. The applicant has provided a range of claims relating to his experiences in Türkiye. The applicant’s statement of claims covers both general country information about Türkiye, and particular incidents that either involve him directly or in which has some kind of association.

   Family background

9. The applicant gave some historical background about his father’s family, and their experiences in [City 3], a Kurdish-majority area in eastern Türkiye.

10. The Tribunal notes that the family had moved from eastern Türkiye some time between [Year] (when the applicant’s older sister was born in Bingöl) and [Year] (when the applicant was born in Istanbul). In 1984, the Turkish military started its struggle to put down the separatist insurgency and urban terrorism campaign by the Kurdistan Workers’ Party (PKK[11]). During the conflict, large numbers of Kurds relocated to other parts of Türkiye, with the result that about half of the Kurdish population now lives in western Türkiye.[12]  

    [11] Partiya Karkeren Kurdistan

    [12] DFAT Country Information Report Türkiye - September 2020, 10 September 2020, p. 20.

11. The Tribunal accepts that the conflict in eastern Türkiye affected his family, and played a key role in their move to Istanbul in the mid-1980s. It also accepts that these experiences shaped their political views. Nonetheless, according to his evidence, both parents were university-educated and worked as [Occupation]s in government-run [Workplaces]. Overall, the Tribunal accepts that the applicant’s family background shaped his parents’ and his views of their place in Turkish society and their leftist leanings, it gives little insight into the extent of their actual commitment to pro-Kurdish or socialist political groups

12. The applicant claimed that his father was imprisoned for one year in about [Year], due to his political views (hence, when he was about [Age] years old). As noted above, the applicant’s parents divorced in [Year], when he was about [Age] years old. The applicant claims that they argued about the children, and separated. The applicant also claimed that an uncle was jailed for seven years and fled to [Country 1]. When the applicant was about [Age], the police raided the family home to take a maternal uncle.

13. The applicant did not substantiate his claims as they relate to his family’s activism, or the Turkish authorities’ pursuit of them. However, they are generally consistent with country information about the treatment of Kurds, including in western Türkiye.

    The applicant’s experiences

14. The applicant claimed that he was aware of his family’s background in Türkiye, and the Turkish authorities’ actions against them and the Kurdish community generally.

    §  He claimed to have experienced various forms of discrimination and treatment, citing as examples that he was not allowed to speak Kurdish at school, and was teased for his broken Turkish; that he resented the discriminatory treatment of Alevi students; and that he was intimidated by the heavy security presence in his local area; and that he recalled the violence when Turkish soldiers raided the family home and arrested his uncle

    §  The applicant claimed that in 2001, nationalist (Turkish patriotic) student attacked him at school; and that, after he attended some leftist celebrations, the school authorities opened a secret file on him.

    §  The applicant claimed that, after finishing high school, the police and others targeted him, in part due to his appearance (long hair and earrings), and also after they found out about his Kurdish background. This led to regular harassment and police interrogation. Once, in [City 1], a group of thugs attacked him with knives, due to his appearance.

    §  When he was studying at his most recent full-time course (in [Subject 2]), nationalist students raided the home where he was staying, forcing him to move out and attend classes only part-time. The implication was that this disruption adversely affected his studies, and resulted in his failure to graduate.

15. At hearing, the applicant alluded to some of these incidents. Asked whether he had been involved in any incidents that resulted in actual injuries or hospitalisation, he said that the passengers in a mini-bus once attacked him, and he required eleven stitches to his lip. The Tribunal formed the impression that he was drawing to some extent on the things that he may have experienced, or witnessed, or heard about; but that he may have been exaggerating or misconstruing some of these events.

16. The Tribunal notes that the applicant lived in Istanbul and later [City 1], enrolled in various courses of study, and worked in [Workplaces]. There is little in these circumstances to suggest that he was politically active, or that he was subject to persistent harassment. At hearing, he said that people sometimes targeted him because of his appearance, but he believed that his ethnic background and political leanings were the real cause. He produced photographs showing him with long hair, in various social settings. The Tribunal notes, and takes into account, that politically and socially conservative people may well perceive a link between the applicant’s appearance, and his ethnic and political preferences.

17. The Tribunal has an overarching concern that the applicant’s lengthy statement and the submissions in this case, are based in large part on a compendium of general problems reported by Kurds living in Türkiye; that they have blurred these with some instances that directly affected the applicant; and that overall, they are not a fair representation of the applicant’s personal experiences. Nonetheless, it accepts that he faced at least some of the discrimination and intimidation set out in his protection claims. It accepts that these experiences have informed his political views, including his attitude to military service. 

    Political views and activities in Türkiye

18. In his original statement of claims, the applicant wrote that, against the background of the discrimination and that he and his family faced, he started to ‘analyse events more precisely and question life from a different perspective’. This appears to have been a reference to an interest in leftist and pro-Kurdish policies, and his participation in activities that combined Kurdish culture and politics.

19. The applicant claimed to have attended a wide range of events and demonstrations in [Suburb], from 2005 to 2006, and again from 2012 to 2013 (taking into account his claim to have spent periods of time in [City 1] during the intervening period). The submission of 9 August 2021 sets these out in considerable detail. They included annual Labour Day and World Working Woman’s Day celebrations, as well as protests in response to specific incidents. Examples included marches in January 2007 (following the assassination of the journalist Hrant Dink); May 2011 and May 2012 (in response to the ‘Dersim Massacre’); various marches in 2013; as well also protests in Ankara in 2005 and 2006. He claimed to have attended the funeral of a teenager killed during the Gezi Park protests in March 2014, just four days before his departure for Australia.

20. In his oral and written evidence, the applicant referred to having initially participated in these events at the behest of his brother [Mr A]. The applicant spoke about his having joined the youth wing of the main pro-Kurdish political party, helping with meetings and distributing materials (rather than just attending marches). He recalled with evident ease the main pro-Kurdish parties, after they were successively banned. In response to the Tribunal’s questions, he gave some limited information about former political friends, but he did not appear to have corroborative evidence of or continued contact with these persons.

21. In this context, the applicant also noted that his presentation – often with long hair and earrings – was also part of his political expression, and attracted the adverse attention of the police. As noted above, he presented some photographs from this period.

22. The Tribunal noted, although he had provided some details comments about aspect of these protests, for instance, the context for the Hrant Dink protests, he had provided little to demonstrate that he was actually present at such events. He later submitted a letter of support from the local [Political party], dated 16 August 2021, confirming that he had participated in political and social activities in the area; and photographs of him with long hair at what appear to be cultural events (though not overtly Kurdish or political. One photograph shows the applicant following an eye operation, with a patch over his left eye. He attributed this to injuries suffered as a result of tear gas fired at a Gazi Park protest, but the photograph does not bear a date, and there is no other evidence to show such a link. Some photographs purportedly show his brother at political protests in Europe, but these do not in the Tribunal’s view shed light on the applicant’s political engagement in Türkiye. Finally, the Tribunal notes that several letters of support refer to the applicant’s activism in Türkiye, such as the letters from [Mr E], [Organisation] and the solicitor [Mr B]. In each instance, these appear to be based on the applicant’s own account of his background, although the letter from [Organisation] also refers to their (unsubstantiated) enquiries from reliable sources.

23. The Tribunal has some concerns that the applicant’s evidence of his (claimed) political activism was a recital of past events, not necessarily based on his personal involvement. Overall, his description of his activities in Türkiye suggest that he was unsettled, variously enrolling in college courses and finding work in [Workplaces], while (allegedly) trying to avoid military service. Nonetheless, the Tribunal notes a 2017 report on young Alevi Kurds in the applicant’s neighbourhood[13] which refers to a small, but significant portion of such youth engage in ‘leftist and/or socialist active politics’, and such ideas as having a broader appeal among the young people in this area.

    [13] PODEM: Public Policy and Democracy Studies, Dr Ulas Tol, Urban Alevism and the Young Alevis' Search for Identity, January 2017:

24. Taking this and similar evidence into account, the Tribunal accepts as plausible that the applicant supported broad leftist ideas and participated in leftist, pro-Kurdish and anti-government protests during the period from 2005 to 2013. It shares the delegate’s view that he did not acquire any political profile as a participant in such large scale events. To this it would add that it has doubts as to the strength of his engagement in opposition or pro-Kurdish political groups as such. Nonetheless, the Tribunal considers such political leanings and activities relevant when assessing his future prospects if he returns to Türkiye, particularly in view of his status as a draft evader.

25. The applicant claimed that he was subject to harassment and some physical mistreatment, at the hands of the police and nationalists. He gave as examples that the police interrogated him (sometimes triggered by his appearance); that nationalist students attacked him (and others) during Labour Day and World Working Women’s Day marches; and that the nationalist students disrupted his residency at a college hostel.

26. For the reasons stated above, the Tribunal accepts that the applicant has based at least some of these incidents on his past experiences, and that they informed his decision to avoid military service and to look for ways to depart Türkiye. It does not accept on face value, however, that he fled the country in response to any imminent threat of serious or significant harm.

    Military service

27. The applicant claims to have not performed compulsory military service in Türkiye, and presented a number of claims relating to: (a) his conscientious objection to conscription; and (b) the consequences of this, ranging from (i) the lack of alternative to conscription; (ii) the punishment he faces for draft evasion; (iii) his prospects when eventually forced to serve; and (iv) other official and societal mistreatment, as a draft evader.

28. Article 1 of the Turkish Military Law 1927[14] declares that every male Turkish citizen is obliged to perform his military service in accordance with the Turkish military law. According to the amended Article 2 of the Turkish Military Law, the military eligibility age begins on the 1st of January when the person turns to the age of 20 and ends on 1st of January when he reaches the age of 41. This means that the applicant’s military service obligations commenced in January [Year], and that his obligations continue until [Year].

    [14] Türkiye: Law No. 1111 of 1927, Military Law

29. The delegate noted that, from 2003 to 2008, the applicant was eligible for military service and was not involved in studies; and that, although he referred to a deferral up to the end of 2014, he had provided no evidence to support this. In this context, the delegate noted that the education provider would have had to inform the military when he withdrew from his studies in November 2013, and that his ability to obtain a Turkish passport in March 2014, at the age of [Age], further suggested that he had no outstanding military obligations at that time.

30. The Tribunal has received further evidence relevant to this, from the applicant and other sources.

    §  The applicant stated in his Australian student visa application lodged on 18 February 2014, on page 7, that he had not served in any military training ‘other than in the course of compulsory national military service’. This question does not require him to state whether or not he has completed his military service).

    §  The delegate noted that the applicant did not produce evidence of the (claimed) deferral of military service, but the Department fille includes (at pages 2-3) a translated text from the Ministry of National Defence’s conscription office in [District 3], dated 3 December 2013, stating that the applicant has deferred his military service obligations until 31 December 2014, and gives details of the student enrolments on which the deferrals were based ([University 3], and his enrolment as a ‘domestic student’ until December 2014.

    §  The applicant provided to the Tribunal copies of his successive enrolments at universities and vocational colleges during the period in which he was required to perform military service.

31. The applicant submitted to the Tribunal a letter dated 17 March 2016, from the [City 3] conscription office, stating that he had failed to reply to a roll call by the deadline of 4 February 2016, and is therefore subject to penalty, unless he can provide evidence to excuse his non-appearance (this relates to illness, and also if he has the ‘status of worker/employer, a professional or a craftsman/seaman abroad). A 2019 report from the Netherlands Ministry of Foreign Affairs[15] notes that the law distinguishes three types of evasion of military service, the first of which is ‘evasion of registration/screening (yoklama kaçakçiliğı). The letter that the applicant produced corresponds, in the Turkish original and English translation, to this. The Netherlands report also indicates that a person who has not responded to the general call-up for registration and screening for military service receives a call-up notice to their address, requiring them to comply with procedures.[16] The Tribunal finds that the letter of 17 March 2016 is such a letter.

    [15] Ministerie van Buitenlandse Zaken: Thematic Country of Origin Information Report Türkiye: Military service, July 2019:

    [16] Ibid, para 2.1 ‘Call-up system’/

32. At hearing, the Tribunal noted that the applicant’s Turkish passport was issued in [2013], and wondered why – if he had been eligible for military service from [Year] – he did not try to obtain an earlier passport and depart the country. It also noted the [Language Institute] certificate that he had provided with his Australian student visa application, indicating that he had undertaken 64 hours of coursework between 3 and 26 September 2013, in a [Language] course. In reply, the applicant reiterated that he had not held any earlier passport. He said that he had completed the [Language] course in the hope of joining his brother in [Country 1], but his brother and a migration agent had told him his chance of obtaining a visa was slim.

    §  The Tribunal views the applicant’s response – to the effect that he invested time in learning [Language] with a view to migrating there, even before getting a passport – with scepticism. It considers it more likely that he in fact held an earlier passport, and obtained his current passport after the [Country 1] authorities refused his visa application.

    §  The Tribunal considers that the applicant’s failure to obtain a [Country 1] visa – irrespective of whether he held of applying (as claimed), or applied unsuccessfully – lends some indirect support to his claim to have not completed military service. The Tribunal considers that his outstanding military obligations would have been a relevant factor in any [Country 1] visa application process (particularly given the large number of Turkish residents and visitors in [Country 1]), and that it may well have ruled him out from being granted a visa.

1. Although the Tribunal has some residual concerns about the applicant’s documentation generally, the letter of solicitor [Mr B] confirms the Tribunal’s understanding of the letter of 17 March 2016, namely that the applicant had obtained successive postponements of military service obligations (required for Turkish men aged 21 or above, and for vocation and technical high school graduates aged 25 or above); that the last of these was issued in December 2013; that that deferral expired in December 2014; and that the applicant has ongoing obligations.

2. The Tribunal is satisfied on the available material, and finds, that the applicant has never registered for military service, or been conscripted.

3. There is no evidence that the applicant, or anyone acting on his behalf, addressed the conscription office correspondence in March 2016. The Tribunal therefore accepts, as plausible, that he has outstanding military service obligations and that the Turkish authorities have registered him as a draft evader.

   Conscientious objection claims

4. The applicant wrote on his statement of claims – on page eight, almost as an afterthought – that he will be required to complete conscription if he returns to Türkiye. He set out his claimed objections to this:

   §It runs counter to his ‘peaceful personality’, his moral values, his religious beliefs and the free-thinking manner in which he was brought up.

   §He referred to reports of conscripts suiciding in the armed forces, in the wake of ‘persecution, intimidation, and verbal and physical abuse’.

5. The submission of 9 August 2021 contends that the applicant is a conscientious objector, ‘refusing to attend and complete his compulsory Turkish service due to his Kurdish ethnic identity, his Alevi faith, and his social and pro-Kurdish political opinion’. In his statement of 9 August 2021, the applicant also alluded to his wish not to be part of the ‘Turkish Army’s atrocities and human rights violations against the Kurdish people and other minorities’.

6. The applicant claimed that, because military service is seen as an integral part of a person’s patriotic duty, ‘nationalists’ target conscientious objectors with verbal and physical abuse. At hearing, the Tribunal explored with him the basis for his objection to military service. The applicant referred to the impact of his family background, the Kurds’ historical experiences, and his objection to the Turkish military’s role in their suppression. He did not give further detail, or specific examples, of having a conviction opposed to the principle of military service. He also did not demonstrate to the Tribunal’s satisfaction that he holds a belief against compulsory military service, based on religious, political or similar grounds, even though such factors may have influenced him in resisting military service.

7. The Tribunal notes country information that many young men seek to delay, and in many instances, evade conscription. The Netherlands MFA noted in 2019: ‘According to data from the Turkish government from 2018, a total of 1.9 million young men had obtained a deferral of military service because of their studies. Three million others had asked for a deferral for other reasons. Approximately 650,000 men are considered by the Turkish government to be evaders of military service and therefore to be breaking the law.’[17]

   [17] Ibid, page 9, citing Al Monitor: Young Turks with enough cash seek to skip military service, 4 July 2018

8. The Tribunal accepts the genuineness of the applicant’s wish to evade military service, for personal reasons as well as his racial and political background. However, it found his attempt to present this as a conscientious objection to military service per se, grounded in personal convictions, to be confused and lacking credible supporting evidence. It is not satisfied that he is a conscientious objector.

   Activities in Australia

9. The applicant has claimed to have participated in a range of Kurdish cultural and political activities in Australia, as a continuation of his political engagement.  He submitted, among other things, letters of support from Kurdish organisations in Australia, and photographs of him at protest events in Sydney during 2018 and 2019,

10. Section 91R(3) of the Act provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether they have a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention. In the present case, the Tribunal accepts that the applicant’s participation in Kurdish events in Australia was motivated by multiple factors, including social, cultural and political reasons, as well as his wish to obtain photographs to support his protection visa application. The Tribunal is therefore satisfied that the conduct falls outside the scope of s.91R(3).

    Assessment: Refugee criterion

11. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Türkiye and relevant country information, he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future.

12. The applicant claims to fear persecution for the following reasons, considered cumulatively: (a) his Kurdish race; (b) his Alevi faith; (c) his political opinion, as a socialist and pro-Kurdish activist; and (d) his membership of putative particular social groups, consisting of ‘draft evaders’ and ‘conscientious objectors’, based on his refusal to perform military service in Türkiye.

13. The Tribunal has accepted above that the applicant is an Alevi Kurdish, that he has a generally leftist and pro-Kurdish political opinion, and that he is a draft evader, having failed to respond to the Turkish military’s call-up notice in March 2016. The Tribunal accepts that the applicant’s wish to evade military service reflects a range of personal and political considerations, but it is not satisfied on the available evidence that he has a genuine conscientious objection to military service.

14. A preliminary consideration is the consequences of the applicant’s status as a draft evader. The applicant claims to fear that, on his return to Türkiye, the authorities will identify him as a draft evader, arrest him and imprison him. He claims that, even after such punishment, he will still be required to perform military service; and that he will face further physical and mental harm when he again announces his conscientious objection.

15. The applicant, his representative and the solicitor [Mr B] noted that as a registered ‘roll-call evader’, the applicant will not be able to avail himself of any further deferrals, and he does not appear eligible for the various exemptions that might otherwise apply, based on being physically or mentally unfit; or of having a defined close relative who was killed in combat or similar circumstances; or other grounds such as declaring that he is homosexual. The Tribunal accepts these claims.

16. The Tribunal notes that recent laws allow conscripts to ‘buy out’ their military service obligations, subject to certain criteria. As noted in the DFAT country report of September 2020, these give conscripts, after one month of military training, ‘the ability to buy-out the remaining five months for a fee of 31,000 Turkish Lira [A$1,830 at the time of this decision].’ However, it goes on to note that this only applies to those called up after June 2019, when the new law was introduced, and does not apply to those already considered draft evaders.[18]

    [18] DFAT, Country Information Report – Türkiye, September 2020, para. 3.93.

17. The Netherlands 2019 and other sources indicate, in the case of a conscription draft evader (i.e. a person who has not responded to a roll-up call), the military authorities will pass their details to the police or gendarmerie; attempts are made to locate and arrest the person; and if found, they are subject to a fine, and subsequently required to serve. Draft evaders not caught will be subject to an arrest warrant, details of which will be included in the General Information Collection System (electronic records).[19] This is consistent with the information provided by solicitor [Mr B].

    [19] Genel Bilgi Toplama Sistemi, see Ministerie van Buitenlandse Zaken: Thematic Country of Origin Information Report Türkiye: Military service, July 2019. at page10: >

    In considering the applicant’s treatment on his return, as a draft evader, the Tribunal has taken into account, among other things, the applicant’s evidence, the submission of 8 August 2021, the opinion of solicitor [Mr B], and country information sources.

    §  These sources indicate that the applicant, as a draft evader, will have been subject to an arrest warrant.

    §  Solicitor [Mr B] noted that the applicant will receive a conscription document from the Turkish Consulate, which he should present on his arrival at the airport. (He suggests that the applicant’s potential punishment, by way of fine and/or imprisonment, will vary according to whether or not he voluntarily presents this notice on arrival.)

    §  In any event, the Turkish authorities will be able to check his military status online, and confirm that he is subject to an arrest warrant. Border officials would transfer him to the nearest military branch within twenty-four hours. The Tribunal accepts as plausible solicitor [Mr B]’s comment that the military authorities will initially assess whether the applicant is subject to any exemptions (such as on health grounds). He also opined that, if the applicant does not qualify for an exemption, he will be required to complete military service, and after this, will be imprisoned.

    §   for periods of between two months and three years (depending on factors such as the period of non-compliance, whether or not the presentation is voluntary, and the court’s discretion).

    §  The Turkish Code of Military Criminal Law (Article 63)[20] sets out the system of penalties for evasion of military service, which consists of fines and/or prison sentences that depend on the period that has lapsed since a person presented themselves, or were arrested. Solicitor [Mr B] commented that in the applicant’s circumstances, the Law provides for the applicant’s imprisonment of between four month and two years (if he voluntarily presents himself), or six months to three years (if he is otherwise detected).

    [20] Türkiye: Law of 1930 on Absentee Conscripts, Draft Evaders, Persons Unregistered [For Military Service], and Deserters, 22 May 1930.

18. Relevantly, the 2019 Netherlands report indicates that the courts may convert prison sentences of less than one year into a fine. It goes on to note, however, that there are no known recent examples of ‘conscription evaders’ being subject to criminal prosecution[21]. It also reports that when the authorities locate a draft evader, they typically require him to sign a statement undertaking to report to a military registration office within fifteen days. While there are some reported instances of the police escorting a person to the military registration office, there are no known cases of them being immediately drafted and transferred to barracks.[22]

    [21] Supra, no.15, at page 22. The citation reads: ‘Law on Military Service (Law 1111) Article 89: Değişik ikinci fıkra: 11/2/2014, 6519/6 md. The translation reads: ‘Amended second sub-article, dated 11/2/2014. Article 6519/6 is the number of the article that amends the original article’.

    [22] Supra, no.15, at paragraph 5.2., page 22.

19. In sum, the weight of country information indicates that the Turkish authorities will likely detect the applicant as a draft evader on his arrival in Türkiye, whether on the basis of his declaration of this or their checks of national electronic records. This will likely result in his detention and transfer to the military authorities. While some sources suggest that he may simply be ordered to attend a military registration office within fifteen days, the Tribunal considers that the duration of the applicant’s absence from the country may attract more attention.

20. The Tribunal considers the Turkish conscription law, is on the face of it, a law of general application that applies to all Turkish males of a certain age. The Tribunal notes that laws of general application may be implemented or enforced in a discriminatory manner. Where the motivation for such selective enforcement is one or more of the Convention grounds, and the punishment involves serious harm, the enforcement of such a law can amount to persecution.

21. In this regard, the Tribunal notes the comments in the 2019 Netherlands report that, ‘as far as is known, the punishments for Kurdish Turks who evade military service or desert are the same (as those that apply generally), although it should be noted that evasion of military service has in principle been punishable with a fine since 2014’.[23] More generally, it observes that ‘there are no known cases of conscription evasion or desertion being penalised more severely because [of any Convention ground]. However, there are known cases of discrimination against conscripts on active service, for example because of their ethnic background […] or sexual preferences […]’.

    [23] Supra no.15, at paragraph 5.2, page 23

22. The applicant did not address these issues directly. The submission of 9 August 2021 contends that, in any trial for draft evasion, the applicant will declare the basis for his conscientious objection, namely his ethnic, religious and political views; and that he will still be liable for military service. For the reasons stated above, the Tribunal is not satisfied that the applicant’s opposition to military service amounts to conscientious objection (on general philosophical, or Convention-related grounds). It also notes that, while the submission describes the impact on the applicant of the punishments, it does not in the Tribunal’s view go so far as to state that the law is enforced in a discriminatory manner. The expert opinion report of solicitor [Mr B] also does not address this point.

23. In sum, the Tribunal is not satisfied that the applicant is a conscientious objector. It considers that the national service law is a law of general application, and is not satisfied on the available evidence that there is a real chance of its enforcement – namely the prison term and/or fines meted out as punishment for being a draft evader, and the further requirement that he proceed to complete his military service – being selective and discriminatory (on one or more of the Convention grounds). It is therefore not satisfied that the applicant has a well-founded fear of Convention related persecution, on the basis that he is a draft evader and will be subject to punishment on his return to Türkiye.

24. The Tribunal is required to consider the totality of the applicant’s circumstances, in assessing whether he has a well-founded fear of persecution. It notes that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

25. Despite some concerns about the applicant’s credibility, the Tribunal considers that it it the totality of his circumstances that may make him a person of adverse interest to the Turkish authorities. These include: (a) his Kurdish ethnicity (although not self-evident on first glance, this would be clear on any cursory examination of his background); (b) his nominal adherence to the Alevi faith; (c) his family’s political background; (d) his association with left-wing and pro-Kurdish groups participation in Türkiye (for instance, in Gezi in 2013) and more recently in Australia; and (e) his status as a draft evader. In the Tribunal’s view, the applicant’s claims in respect of each of these matters are not strong, but the cumulative effect may be relevant, particularly in light of recent political developments in Türkiye.

26. Country information indicates that, in the wake of the failed coup attempt on 25 July 2016, the government declared a state of emergency which gave it enhanced powers.[24] The crackdown on political opponents has continued to the present. The Tribunal notes also continued government sensitivity around the ‘Kurdish issue’, which extends to the arrest of those voicing dissent, and posting materials on social media. While the Tribunal is not aware of specific reports of the Turkish authorities monitoring the Kurdish community in Australia, there is evidence of them doing so in Europe, and of them monitoring suspected Gülenists in Australia.

    [24] See, for instance, Department of Foreign Affairs and Trade (DFAT) Country Information Report – Türkiye, 9 October 2018.

27. In relation to political activities, DFAT noted in its most recent report that, although Türkiye remains a democracy with a plurality of political views, ‘restrictions on the ability of Turkish citizens to express dissent to the government, individually or collectively, have increased […]’. It went on to say that the ability of critics to protest government policies through political demonstrations has been significantly reduced by the measures introduced under the state of emergency, which remain in place. And it assesses that pro-Kurdish political activists, including high-level politicians and low-level activists, face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters.

28. Taking all of these factors into account, the Tribunal is satisfied, given the low threshold for ‘real chance of serious harm’, that there is a small but nonetheless real chance that the applicant would attract the adverse attention of the Turkish authorities if he returns there. It takes into account in particular his Kurdish background, his leftist and pro-Kurdish contacts  in Türkiye and Australia, and the significant period during which he has been a draft evader. The Tribunal considers that there is a real chance that the border authorities, police or military will question the applicant about his political and family background, his activities and his draft evasion; and that they will detain him in order to do so. As noted in the most recent DFAT report[25], and other sources[26], allegations of torture and ill treatment continue against the government by individuals in police detention. The Tribunal is satisfied that there is a real chance of the authorities inflicting physical and mental harm on the applicant, in a brutal manner. Such treatment amounts to persecution.. The Tribunal is satisfied that the essential and significant reasons for the persecution feared are the applicant’s political opinion, actual and perceived; and his race. It is also satisfied, for the purpose of this decision, that there exists in Türkiye a particular social group consisting of draft evaders; that the applicant is a member of this particular social group; and that this is also one of the Convention grounds for the feared harm.

    [25] DFAT Country Information Report Turkey, Department of Foreign Affairs and Trade, 10 September 2020, p. 42

    [26] Human Rights Watch World Report 2022, Human Rights Watch (HRW), 12 January

29. The Tribunal is therefore satisfied that the applicant has well-founded fear of Convention-relater persecution in Türkiye.

30. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. In the present case, the Tribunal finds that the applicant has a well-founded fear of persecution at the hands of the Turkish authorities, and that this fear is not confined to his home area of Istanbul. The Tribunal concludes that the applicant cannot reasonably relocate to another part of Türkiye where there is no appreciable risk of the feared persecution occurring. He is therefore not excluded from refugee status on the basis of relocation.

1. Section 36(3) provides that, subject to certain qualifications, Australia is taken not to have protection obligations in respect of an applicant who has a right to enter and reside in another country and has not taken all possible steps to avail themselves of that right. There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in – whether temporarily or permanently, and however that right arose or is expressed – any country other than Türkiye.

   CONCLUSION

2. 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

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

   James Silva
   Member

   ATTACHMENT: Relevant law

   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.

   Refugee criterion

   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).

   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.

   Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

   Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

   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’).

   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

   
   

2022, pp. 665-671: Country Reports on Human Rights Practises: Turkey 2021, US  Department of State, 11 April 2022; 2,694 people killed, 3,145 mistreated or tortured in Turkey in 2021: report, Stockholm Center for Freedom (Sweden), 30 January 2022;.