1716586 (Refugee)

[2021] AATA 3647

1716586 (Refugee) [2021] AATA 3647 (3 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716586

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Damian Creedon

DATE:3 August 2021

PLACE OF DECISION:  Perth

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 3 August 2021 at 10:33am

CATCHWORDS

REFUGEE – protection visa – Turkey – religion – Alevi religious identity – perceived political opinions – leftist activist – applicant was coerced into becoming an informant –mental health problems – relocation not reasonable ­–state protection not available – decision under review remitted

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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).

   Background

2. The applicant is a [age]-year-old national of Turkey.  He was born in Yozgat, Turkey and was raised in Ankara after his family moved there.  The delegate’s decision record, a copy of which the applicant provided to the Tribunal, notes the following information regarding his immigration status over time:

   On [date] July 2013 the applicant arrived in Australia on a [working holiday] visa.^[[1]]

   On [date] December 2014 the applicant travelled [another country] returning to Australia on [date] December 2014.

   On [date] March 2014 the applicant’s spouse departed Australia to return to Turkey where she currently resides.

   On 1 May 2014 the applicant applied for another Student visa which was refused on 24 July 2014.

   On 24 August 2014 the applicant lodged his Protection visa (PV) application and he was granted an associated Bridging visa A (subclass WA-010).

   On 6 December 2016 the Bridging visa expired and on the same day he was granted a Bridging visa B (subclass WB-020) that is still in effect.

   On [date] December 2016 the applicant travelled to [another country] to meet with his wife and he returned to Australia on [date] January 2017. …

   [1] The applicant’s oral evidence at the Tribunal hearing, and his movement record confirms, that he arrived onshore on [date] July 2013 on a [student] visa.

3. As noted by the delegate, the applicant applied for the visa on 24 August 2014.

   Protection visa application

4. The applicant was born into a Turkish Alevi family on [date].  His claims for protection in Australia turn upon his Alevi religious identity, the persecution of Alevis generally in Turkey, specific persecution he has personally experienced in Turkey, his perceived political opinions and his fear of returning to Turkey as a person whom the Turkish authorities have coerced to be an informer.

5. The applicant attended an interview with the delegate of the Minister on 25 July 2016. Where relevant, the applicant’s evidence to the delegate is referred to below.

6. The delegate refused to grant the visa on 7 July 2017 on the basis that the applicant does not have a well-founded fear of being persecuted in Turkey. The delegate also did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that he will suffer significant harm.

7. The applicant applied to the Tribunal for a review of the delegate’s decision.

   Application for review

8. The applicant was not represented in relation to the review.

   Documentary evidence

9. The applicant provided copies of a number of documents in support of his application, including the following:

   a.A “Mental Health Assessment Treatment Report” dated 29 April 2021 issued in respect of the applicant by Clinical Psychologist Mr [A] [2].  The report notes a diagnosis of “Major Depressive Disorder”, “Insomnia”, and “Significantly low social and physical activation levels, struggles with daily functioning on social occasions”.

   b.The applicant’s “Republic of Turkey Identity Carte” recording his personal particulars.

   c.A document purportedly issued by the “[a named association]” under the hand of the “Chairman” recording that:

   [The applicant] was accepted as a member of our association on [date]12.2012 and his membership still continues in our association. [date].07.2021

   Hearing

   [2] Mr [A] states that he is “a registered Clinical Psychologist and a full registered member of both the Australian Health Practitioners Registration Agency (APHRA) and the Australian Psychological Society with over 10 years of professional experience working in mental health institutions in Western Australia and internationally”.

10. The applicant appeared before the Tribunal on 28 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

11. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

12. 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

13. 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).

14. 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.

15. 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.

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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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

23. 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’).

24. ‘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.

25. 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.

    Mandatory considerations

26. 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.

    Country Information

27. It is helpful to outline relevant country information prior to an analysis of the applicant’s evidence to the Tribunal.

28. The United States Department of State 2020 Country Reports on Human Rights Practices: Turkey (30 March 2021), notes:

    Turkey is a constitutional republic with an executive presidential system and a unicameral 600-seat parliament (the Grand National Assembly). In presidential and parliamentary elections in 2018, Organization for Security and Cooperation in Europe observers expressed concern regarding restrictions on media reporting and the campaign environment, including the jailing of a presidential candidate that restricted the ability of opposition candidates to compete on an equal basis and campaign freely.

    The National Police and Jandarma, under the control of the Ministry of Interior, are responsible for security in urban areas and rural and border areas, respectively. The military has overall responsibility for border control and external security. Civilian authorities maintained effective control over law enforcement officials, but mechanisms to investigate and punish abuse and corruption remained inadequate. Members of the security forces committed some abuses.

    Under broad antiterror legislation passed in 2018 the government continued to restrict fundamental freedoms and compromised the rule of law. …

    More than 15 million citizens were estimated to be of Kurdish origin and spoke Kurdish dialects. Security force efforts against the PKK disproportionately affected Kurdish communities in rural areas throughout much of the year. Some predominantly Kurdish communities experienced government-imposed curfews, generally in connection with government security operations aimed at clearing areas of PKK terrorists (see section 1.g.).

    Kurdish and pro-Kurdish civil society organizations and political parties continued to experience problems exercising freedoms of assembly and association (see section 2.b.). Hundreds of Kurdish civil society organizations and Kurdish-language media outlets closed by government decree in 2016 and 2017 after the coup attempt remained shut.

29. The Human Rights Watch, World Report 2021: Events of 2020 – Turkey (23 January 2021) notes:

    The assault on human rights and the rule of law presided over by Turkey’s President Recep Tayyip Erdoğan continued during the Covid-19 pandemic. The president’s Justice and Development Party (AKP) and an allied far-right party enjoy a parliamentary majority enabling them to consolidate authoritarian rule by passing rushed legislation that contravenes international human rights obligations. Opposition parties remain sidelined under Turkey’s presidential system and the government has reshaped public and state institutions to remove checks on power and to ensure benefits for its own supporters. …

    Since August 2019, the Interior Ministry has justified the removal of 48 elected Peoples’ Democratic Party (HDP) mayors on the basis that they face criminal investigations and prosecutions for links with the PKK. Repeating the approach taken in 2016-17, the government has replaced mayors in the southeast with Ankara-appointed provincial governors and deputy governor “trustees.” At time of writing, 19 mayors remain in pretrial detention. …

30. The most recent Department of Foreign Affairs and Trade Country Information Report: Turkey (10 September 2020), notes:

    3.1 Article 10 of the Constitution states all individuals are equal without discrimination irrespective of language or race (among other things). In practice, this means there is a single nationality designation for all citizens, except for three non-Muslim minorities (see Lausanne Minorities). Article 66 states everyone bound to the Turkish State through the bond of citizenship is a ‘Turk’. Article 42 states no language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Human rights observers have argued these citizenship and language provisions amount to discrimination against ethnic minorities.

    …

    Alevis

    3.19 In the absence of official figures, estimates of the size of the Alevi population vary considerably, although most credible estimates are between 10-25 million. Many Alevis are also Kurds, although estimated numbers again vary considerably (between half a million and several million). DFAT understands Kurdish Alevis are more likely to identify primarily as Alevi. While Alevis are widely distributed across Turkey, they are concentrated in central and inner-eastern Anatolia, Istanbul and other major cities. Tunceli is the centre of the Alevi faith, and its population is overwhelmingly (95 per cent) Alevi. Ordinary Alevis generally keep a low societal profile and do not highlight their religious identity, including through their everyday dress. Indeed, when asked by pollster Pew Research Centre, only five per cent of respondents volunteered they were Alevis.

    3.20 Alevism is a heterodox branch of Islam that emerged in the medieval period and incorporates Shi’a, Sufi, Sunni and local traditions. Practising Alevis read from the same Islamic texts as mainstream Muslims, but worship in a cemevi (prayer hall) rather than a mosque. Men and women pray alongside each other, worship in Turkish rather than Arabic, and are not expected to pray five times a day. While most Alevis regard their faith as a separate religion, some identify as Shi’a or Sunni or see their Alevi identity predominantly in cultural rather than religious terms. Alevis are mostly secular, supporting strict separation of religion and politics. Alevis report they are generally able to conduct their religious ceremonies and celebrate their religious festivals without official interference.

    3.21 The Turkish state does not recognise Alevism as a separate religion and considers Alevis to be Muslims. Cemevis are not recognised as official places of worship at the national level and, unlike mosques, do not receive public funding to support their construction or maintenance. The ECHR ruled in April 2015 that the Turkish government was violating the European Convention by not recognising Alevi places of worship and religious leaders. In November 2018, the Supreme Court of Appeals ruled cemevis should receive the same benefits as mosques, including exemption from utility bills. Some municipalities have voted to recognise the status of cemevis, particularly those under CHP leadership, and agreed to pay for utility bills. Other ECHR judgements from 2015 ruled only Alevi leaders could determine the faith to which their community belonged, and Alevi students should be exempt from compulsory religious education classes conducted by Sunni imams (see Education). Some Alevis claim the classes teach Alevi students incorrect information about their own faith, which parents have then had to correct at home. Alevi community representatives have told DFAT the ECHR decisions have not been implemented.

    3.22 Alevis have played a prominent role in the political sphere, particularly with the CHP, which has had strong Alevi representation. While most Alevis support the CHP, Alevis have also achieved parliamentary representation in other parties, including the AKP. No laws prevent Alevis (or other religious minorities) obtaining public sector employment or serving in the military. Some Alevis claim to have been denied promotion in the public sector due to their religious identity. DFAT does not have any specific information relating to the treatment of Alevi Kurds in the military.

    3.23 Although the Alevi community suffered significant societal violence in the past, DFAT is not aware of any instances of significant societal violence against individuals in the community in recent years. In 2019, several cemevis and Alevi tombs and shrines were vandalised and covered with graffiti with derogatory statements and painted red ‘X’ marks. Like other religious minorities, Alevis have occasionally been the subject of negative portrayal in state media, and subjected to low-level societal threats of violence.

    3.24 DFAT assesses Alevis face a low risk of official and societal discrimination. While they do not enjoy the benefits of official recognition as a separate religion, they are generally able to worship freely and participate in most areas of Turkish life, including politics. Kurdish Alevis do not face any additional religious-based discrimination beyond those who only identify as Alevi.

1. According to P Kingsley “Turkey’s Alevi’s, a Muslim Minority, Fear a Policy of Denying Their Existence” The New York Times (22 July 2017):

   By some metrics, the Alevis are safer now than at many points in their history. For centuries they have been the victims of pogroms, both during Ottoman times and under the secular Turkish republic. Hundreds of Alevis were murdered in sectarian violence in the tumultuous years that preceded Turkey’s 1980 coup, and dozens were killed during the 1990s.

   Under Mr. Erdoğan, however, there has been no mass sectarian violence against Alevis…

2. Kingsley also reports that Alevis have experienced discrimination, particularly in state institutions, in employment, stating that:

   Alevis have also reported discrimination in the workplace, particularly within state institutions. Few Alevis currently fill key roles in the state apparatus, such as governors or police chiefs. And although there is no concrete evidence of an official policy of bias, Alevis in low-level positions in the civil service regularly claim that they system is gamed against them, says Aziz Yagan, an academic who researches the subject.

3. The Immigration and Refugee Board of Canada report Turkey: The Situation and Treatment of Kurds and Alevis After the Coup Attempt in July 2016, Including in the Large Cities (July 2016-2017) (26 January 2017), records the views of a research assistant at the University of Sydney and a graduate of Bogazici University in Istanbul and the School of Economics, who expressed the view that:

   Following the 2016 coup attempt in Turkey, the government called the citizens onto the streets to protest against the so called coup d’etat. Some protestors – ignited by the atmosphere on streets – became violent especially in some of the districts where the Alevi population resided. One example was the Pasakosku district in the city of Malatya where the masses gathered on streets and insulted against the Alevi residents. Another example was in Antakya where a violent group attacked Arab Alevis. Other cases of harassment [have occurred] in districts of Gazi, Nurtepe, Ikitelli, Sari Gazi, Okmeydani in Istanbul, Tuzlucayir in Ankara and Pazarcik in Maras.

4. More specifically the applicant’s claims, the “Stockholm Center [sic] for Freedom” (SCF), self-described as “a non-profit advocacy organization that promotes the rule of law, democracy and human rights with a special focus on Turkey”[3], has recently reported upon the tactic of Turkish police coercing individuals into becoming informants.  In an article entitled “Turkey forced 160 people to become informants in first 10 months of 2020: rights watchdog”[4] the SCF reports that:

   A total of 160 people in Turkey were forced to become informants by government officers who used coercion and threats in addition to abduction and torture during the first 10 months of 2020, Turkish Minute reported, citing a special report published by Turkey’s Human Rights Association (İHD) on Thursday.

   The report, titled “Testimonies, Interviews, Forced Informing through Coercion and Threat, and Abduction Cases” is based on 160 cases detected by the association and includes 29 people threatened on social media, four while serving prison time and 72 in custody and other places.

   The report underlines that although the actual number of people forced into becoming informants in Turkey in the first 10 months of 2020 is much higher than 160, many of those victims refrain from submitting complaints to a prosecutor’s office or the İHD in order to protect themselves and their loved ones.

   The association says people who are abducted and threatened into becoming informants for the Turkish government are mostly activists, students, political party members, journalists and family members of political prisoners.

   “Intelligence and counterterrorism officials threaten those people and engage in psychological torture by promising to help them on issues they are sensitive about, since they know a lot about the victims’ personal lives. Then they force the victims to become illegal informants [for the Turkish government] by arresting and abducting them as well as threatening to kill or torture them.”

   In some cases the situation is worse, with abducted victims being subjected to physical and psychological torture for months without knowing where they are being kept against their will, the association added.

   The İHD also said other civil servants take part in some cases of coercion and threat in addition to law enforcement officers, giving the example of a high school student in İzmir, identified only by the initials M. T., as having been interrogated by three police officers after being instructed by the school’s vice principal to come to his office on January 13, 2020.

   The report also said no effective investigations were carried out into the cases of six people — Salim Zeybek, Gökhan Türkmen, Erkan Irmak, Yasin Ugan, Özgür Kaya and Mustafa Yılmaz — who were forcibly disappeared and kept against their will for six to nine months before mysteriously resurfacing in police custody in Ankara in 2019.

   [3] See which further notes: “SCF was set up by a group of journalists who have been forced to live in self-exile in Sweden against the backdrop of a massive crackdown on press freedom in Turkey. Committed to serving as a reference source by providing a broader picture of rights violations in Turkey, SCF monitors daily developments, documents individual cases of the infringement of fundamental rights and publishes comprehensive reports on human rights issues.”

   [4] See:

   Analysis, findings and reasons

   Oral evidence

5. The Tribunal discussed with the applicant his family history and his experiences growing up as an Alevi in Turkish society.  The applicant stated that his father died in 1991 and his mother is resident in Turkey.  He is [one] of three siblings: his sister is resident in Turkey and his brother is resident in Perth, Western Australia.  He stated that he comes from an “Alevi family”.  The applicant is married, and his wife is also an Alevi.  He stated that, while he himself is of Turkish ethnicity, his wife is Kurdish.

6. When pressed as to the nature of his personal beliefs, the applicant stated that he is Alevi, but “not very religious”.  He stated that his personal politics is “leftist”.  When further pressed he stated that he was drawn to “leftist” political philosophy “because of the discrimination” against the Alevi religion in Turkish society.

7. The applicant stated that he first became aware of his Alevi identity as a young man in school.  When pressed, he stated that for the first [number] years of his schooling, starting in early primary school, he and “eight or nine” other Alevi students out in a class of 40 were routinely singled and objectified to other students, particularly during religious education classes which he described as being run on “Sunni” principles.  He stated that he felt low level discrimination from other students after this, stating that, for example, other students would refuse to eat food brought to school by Alevi students as it was considered “unclean”.  Overall, the Tribunal found the applicant’s account of his experiences to be plausible and consistent with country information.

8. Partly in response to these experiences, the applicant stated that he joined an organisation called “Halkevleri” in 1997 when he was in “[specified grade]”.  When pressed he described the organisation as a “community house” providing accommodation and health services and assisting to protect children’s rights.  He stated that the majority of Halkevleri members were of Kurdish ethnicity, although there was a “large spectrum of ethnicities”, and Halkevleri were known to support the “People’s Democratic Party”, the “HDP”.   When pressed by the Tribunal the applicant stated to the effect that Halkevleri are perceived by the Turkish Government as “leftist” politically and a Kurdish organisation, close to Kurdish politics.  He stated his opinion that:

   The Turkish Government does not accept any kind of protest or any movement; Halkevleri are a big threat to the Turkish Government.

9. The applicant’s description of Halkevleri is consistent with that to be found on the Wikipedia entry for the subject:[5]

   Halkevleri (singular Halkevi literally meaning "people's houses", also translatable as "community centres") is the name of a Turkish community civil rights project. Its history can be reviewed in three distinct eras; between 1932-1951 (1st era), 1963-1980 (2nd era) and after 1987 (3rd era). …

   Halkevleri was an enlightenment project aimed towards city dwellers to gain support for reforms. It was planned by Kemal Atatürk, the founder of the modern Turkey.

   On February 17, 1932, branches of Halkevleri were opened in 17 cities. (Adana, Ankara, Bolu, Bursa, Çanakkale, Denizli, Diyarbakır, Eskişehir, İstanbul, İzmir, Konya, Malatya and Samsun.) But soon, the number increased to 478. Towards 1940, the villages were also included in the project. The sub branches in villages were called Halkodaları (English: People’s rooms) Towards 1950, the total number of these subsections exceeded 4000…

   The purpose of the project was to enlighten the people and to decrease the influence of the conservative circles. Free courses were offered on the topics of literature, drama, music, fine arts, speaking, and writing as well as handicrafts and tailoring. Folksay and folksongs were surveyed. Halkevleri also had 761 libraries and reading rooms. …

   Today Halkevleri acts as an umbrella organisation covering struggle for rights including the struggles for "right for free education", "right for free medical treatment", "right to housing" etc. Current leader is lawyer Oya Ersoy who is known for human rights trials.

   [5] the Tribunal acknowledges the undesirability of relying upon unverifiable Wikipedia information, however in this instance the information contained in the particular article is of a general nature, is conveniently translated and well footnoted with appropriate links to, inter alia, the website of Halkevleri organisation in Turkey at (which is, regrettably, untranslated).  The information is accepted by the Tribunal as providing a general background. 

10. When pressed as to the nature of his interest in Halkevleri and its activities, the applicant stated that he started to attend when he was at “high school”, that he and his friends were interested in going there for the activities run by volunteers and the opportunities that were presented in terms of enhancing education prospects through tutoring and scholarships as well as “organising” activities.  When further pressed, the applicant confirmed that by this he meant “political organisation” for leftist causes.  The applicant stated that part of the “organising” activities of Halkevleri was his attendance at protests and he gave two examples of such protests:

    a.In 1998 he attended [deleted] celebrations.  He stated that at the event he was detained overnight by police.  He stated that he was asked by police why he was wearing a “Halk” apron symbolising his membership of the Halkevleri.  He was released by police the following day.

    b.In 2000 he attended a protest concerning the trial of ten police officers concerned in the death of a Turkish photojournalist.  He stated that during the event police started “beating” protestors and that he was again detained and taken into police custody.  When pressed, the applicant stated that “they hit us with batons and clubs and kicked us and hit us with fists”.  He stated that at the police station the detainees were broken into groups of four and similar assaults continued from the police.  Eventually the applicant stated that he was released under threat of further torture and detention should he complain about his treatment.

11. In 2002 the applicant successfully gained entrance to [a] University in [City 1], Turkey, to [study].  In his written statement the applicant stated (uncorrected):

    My family was very worried as the university was very far from my home town and the city is known for being very conservative and high majority of sunni people. I had heard that they didn’t tolerate to any people from left wing or Alevis. My family was worried as I am very open-minded with long hair and goat beard.

12. On his first night in the university dormitory, the applicant stated that he was physically forced by other students to shave his beard.  When pressed by the Tribunal the applicant confirmed that his facial hair had political significance in Turkish culture; he stated:

    The style I had was for leftists – rightists have [a] different style.

13. The applicant confirmed that the reason he was forced to shave his goatee beard was to enforce political submission upon him.

14. During his time in [City 1], the applicant made friends through the local Halkevleri and participated in relatively low-level protests concerning an increase in the price of food and an increase in student fees.  On both occasions the applicant stated that he was detained by police.

15. In his written statement the applicant stated (uncorrected):

    After having very difficult time in university it took me it 7 years to complete. However all the experiences made me stick to my political point of view and motivated me to read more books and keep updated with what is happening in the country to show other people that they deserve a better life instead of living under poverty line.

16. On completing his degree, the applicant undertook compulsory military service between December 2009 and May 2010.  He stated in evidence that he was physically assaulted and psychologically degraded by the “commander” on account of his Alevi religion and his “leftist” politics.  When pressed by the Tribunal, the applicant stated that the military authorities “already knew” when he enlisted that he was Alevi by religion and a “leftist activist” and that this knowledge informed their behaviour towards him; he states in his written material (uncorrected):

    According to our GBT (general information tracking about identity) I was labelled as leftist activist. It had an effect on my military service. I wasn’t welcomed to the barrack and the commander treated me very badly and psychologically tortured. One day when I asked him not to treat me like I was a dog he told me ‘yes you are not a dog but leftist kizilbas (Alevi in dialect)’ and he punched me. When I was trying to protect myself, he accused me attacking him and reported me so I had to stay in the jail for a week. After I finished the discipline punishment he asked me to keep silent and listen to him otherwise I would never finish my service. My psychological sickness was on again and I had to take tablets for couple of months.

17. At the conclusion of his military service, in June 2010, the applicant was employed as [an occupation].  In September of 2012 the applicant married [a named person] and the couple lived in [an] area, the applicant stated, that is well known as having a high proportion of Alevi and Kurdish citizens.  The applicant continued his relationship with the Halkevleri, becoming a [volunteer].  He states in his written materials:

    I kept joining protests and social activities during my volunteering job.

18. A critical incident in the applicant’s narrative occurred on [date] May 2013.  The applicant stated that on that day he participated in a rally with the Halkevleri and HDP party people.  He stated that police forcibly broke up the rally and detained 16 people including the applicant.  He stated that he was taken onto a police bus, assaulted and forced to sit with his hands behind his head.  Upon arriving at the police station, he was placed into a room with one of his colleagues before being taken to the basement.  In the basement cold water was poured on the applicant while he was fully clothed and he was beaten; specifically, he was kicked and slapped in the face, and hit with batons.  The applicant stated that he was detained overnight. 

19. The next morning, the applicant stated, he was interrogated by undercover police officers.  During the interrogation the applicant was shown his and his family’s identification details.  He stated that he was interrogated about some of the families in the local area.  The applicant further stated that he was interrogated about friends that he and his wife “see often”, stating:

    They even knew what dates we visited those people.

20. The applicant stated that the police “demanded” that he become an informant on threat of violence to himself, his wife and his family.  The police demanded information regarding families in the area, families who attend Halkevleri and the Cernevi[6] and about Kurdish and Alevi families.  When pressed by the Tribunal as to his reaction to the prospect of becoming an informant, the applicant stated:

    It's against my philosophy of life.

    [6] Alevi prayer hall.

21. The applicant stated that, nonetheless, he agreed to become an informer.  He stated that he did so against his will, because he was being held in custody and felt that it was better to “be on the safe side”, to stay safe from torture or mistreatment while in custody.

22. When asked what would have happened if he had refused to become an informant, the applicant stated:

    They would harm my family; they would accuse me of committing a crime; they would accuse me of being a member of a terrorist organisation; they would ruin my life.

23. The applicant stated that he felt compelled to agree to be an informer under threat of these consequences. 

24. Upon release, the applicant stated that he did not relate what had happened to him (that is, that he had agreed to become an informer) “for a while”.  He stated that he developed a severe sleep disorder as a result of the predicament he was in and that, eventually, he confided in his mother; he stated:

    The only way, other than committing suicide, was to tell my mother what happened.

25. The applicant stated that after he told his mother about what had happened, his mother invited the applicant and his wife to move into her house; then she called his older brother in Australia and asked him to “rescue” the applicant as he was at risk of harm from the police.

26. The Tribunal asked the applicant what he feared would happen to him if he was to return to Turkey now or in the reasonably foreseeable future.  The applicant stated that he would be detained at the airport, tortured while in detention, and then false criminal accusations, or accusations of being a member of a terrorist organisation would be brought.  He stated that if he is not killed by torture in prison his life would be ruined by being labelled a terrorist.

27. The applicant stated that both his wife and his mother had been harassed by police seeking the applicant’s whereabouts.  He stated that in 2018 his wife was stopped by police on the way to her work and that she was told by police that they knew that the applicant was in Australia and had applied for a protection visa.  When pressed, the applicant stated that the police had become aware of these facts through their questioning of one of the applicant’s colleagues from the Halkevleri.

28. The applicant stated that he does not mix widely with the Alevi or Turkish communities in Perth as fears for his and his family’s safety.

    Analysis

29. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

2. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.’

3. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

4. In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully.  In assessing the applicant’s evidence, the Tribunal made allowance for the passage of time since the events described occurred, and the challenge of translation.  The Tribunal is also cognisant of the applicant’s “Mental Health Assessment Treatment Report” referred to above.  The applicant presented at the hearing as an intelligent, well educated man, although his demeanour throughout the hearing was consistent with the findings expressed in the “Mental Health Assessment Treatment Report”. 

5. Overall, the Tribunal considers that the applicant provided a consistent and plausible account of his circumstances.  His claims are consistent with general country information which indicates that that there is an historic anti-Alevi prejudice that exists in Turkish society which still finds expression today.  Moreover, they are consistent with specific country information concerning Turkish police tactics of coercing individuals into becoming informants.  The Tribunal notes in this regard the SCF report referred to above.[7] 

   [7] Although the SCF exists as an advocacy body of “self-exiled” journalists, the information contained in the article is well referenced and the Tribunal gives weight to it.

6. The applicant’s long association with the Halkevleri, as a student, a “leftist” activist and a [volunteer], make him an attractive target for Turkish police to engage in the types of behaviour described in the SCF report.  On the evidence before it the Tribunal is satisfied that there is a real risk that the applicant may experience any range of cumulative harms amounting to persecution, including, arrest, detention, harassment, ill-treatment and arbitrary deprivation of life.

7. The Tribunal considers that if he is returned to Turkey now or in the reasonably foreseeable future, the applicant is likely to come to the attention of the authorities as a result of his history of activism, his support (actual or perceived) of leftist causes in general and the Halkevleri and HDP in particular, and his interactions with police on and after on [date] May 2013 where he was coerced into becoming an informant.  This last incident in particular heightens the cumulative risk presented to him.

8. The Tribunal is, therefore, satisfied that there is a real chance that the applicant will face serious harm, and therefore persecution, in Turkey.  The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his religion, and political opinions heightened by his membership of a particular social group, namely individuals who have been coerced by police into becoming informants.  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.

9. 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 he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he 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.

10. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

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

    Damian Creedon
    Member