1725786 (Refugee) - [2021] AATA 1857

1725786 (Refugee) [2021] AATA 1857 (8 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725786
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Shahyar Roushan
DATE:8 June 2021
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 08 June 2021 at 4:53pm
CATCHWORDS
REFUGEE – protection visa – Turkey – capacity to participate in Tribunal’s hearing – cognitive and psychological impairment – race – Kurdish ethnicity – religion – Alevi – imputed pollical opinion – pro-Kurdish views – particular social group – family member of pro-Kurdish and anti-government activist – credibility assessment – inconsistencies between oral evidence of the applicant and her son at the Departmental interview – applicant’s vulnerability – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 426A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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
Procedural history
The applicant is a [age]-year-old national of Turkey. She is of Kurdish ethnicity and belongs to the Alevi sect of Islam. She was born [in] Erzincan Province and continued to reside in that Province until 1988 when she moved with her family to Umraniye, Istanbul.
The applicant’s husband died in 2009. She has a daughter and a son from that marriage. Her daughter migrated to Australia some time ago. The applicant’s son, [Mr A], his wife and their young daughter arrived in Australia [in] April 2014. The applicant arrived in Australia shortly after [in] May 2014 as the holder of a Visitor visa. She applied for a Protection visa on 7 July 2014. [Mr A], his wife and their daughter applied for Protection visas on the same day. [Mr A] made his own specific claims for protection while his wife and daughter relied on their membership of his family.
The applicant’s claims for protection, as set out further below, are closely linked to the protection claims made by [Mr A]. In essence, [Mr A] had claimed to have been a supporter of pro-Kurdish political parties in Turkey and a member of the Peace and Democracy Party (BDP). As a result, he had been subjected to mistreatment by the Turkish authorities, with repercussions for his immediate family members, including his mother.
At an interview held on 29 October 2014, the delegate proceeded to take oral evidence from both the applicant and her son in relation to their respective protection visa applications. Subsequently, the delegate refused both applications.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1725786 (Refugee)

Details

AGLC: 1725786 (Refugee) [2021] AATA 1857
Case: [2021] AATA 1857
Decision Date: 8 June 2021

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Immigration and Border Protection's decision to refuse the applicant, a national of Turkey, a Protection visa. The applicant, who is of Kurdish ethnicity and Alevi faith, claimed to have faced persecution due to her husband's and son's involvement with pro-Kurdish political parties and anti-government activism. Her claims were closely linked to those of her son, who had also sought protection in Australia.

The primary legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution, and consequently, whether Australia had protection obligations towards her under the Refugees Convention. This involved assessing the applicant's credibility, considering inconsistencies in her evidence, and determining if she met the criteria for a protection visa under s.36(2)(a) of the Migration Act 1958. The Tribunal also had to consider the applicant's capacity to participate in the hearing, given potential cognitive and psychological impairments.

The Tribunal's reasoning focused on the applicant's vulnerability and the credibility of her claims, which were supported by her son's evidence and the documented history of persecution faced by individuals with similar backgrounds in Turkey. Despite some inconsistencies, the Tribunal found that the applicant's overall account was credible and that she had a well-founded fear of persecution based on her imputed political opinion and membership in a particular social group, namely, being a family member of a pro-Kurdish and anti-government activist. The Tribunal also noted that it had decided to make its decision without further action to enable the applicant to appear before it, pursuant to s.426A of the Act, indicating a consideration of her capacity to give evidence.

Ultimately, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations. The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

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 Procedural history The applicant is a [age]-year-old national of Turkey. She is of Kurdish ethnicity and belongs to the Alevi sect of Islam. She was born [in] Erzincan Province and continued to reside in that Province until 1988 when she moved with her family to Umraniye, Istanbul. The applicant’s husband died in 2009. She has a daughter and a son from that marriage. Her daughter migrated to Australia some time ago. The applicant’s son, [Mr A], his wife and their young daughter arrived in Australia [in] April 2014. The applicant arrived in Australia shortly after [in] May 2014 as the holder of a Visitor visa. She applied for a Protection visa on 7 July 2014. [Mr A], his wife and their daughter applied for Protection visas on the same day. [Mr A] made his own specific claims for protection while his wife and daughter relied on their membership of his family. The applicant’s claims for protection, as set out further below, are closely linked to the protection claims made by [Mr A]. In essence, [Mr A] had claimed to have been a supporter of pro-Kurdish political parties in Turkey and a member of the Peace and Democracy Party (BDP). As a result, he had been subjected to mistreatment by the Turkish authorities, with repercussions for his immediate family members, including his mother. At an interview held on 29 October 2014, the delegate proceeded to take oral evidence from both the applicant and her son in relation to their respective protection visa applications. Subsequently, the delegate refused both applications. On 20 May 2015, the applicant and [Mr A] both applied for a review of the delegate’s decisions. At a joint hearing held on 27 February 2017, a differently constituted Tribunal (the first Tribunal) took oral evidence from the applicant and her son. On 1 May 2017, the first Tribunal affirmed the delegate’s decisions with respect to both the applicant and [Mr A]. The applicant and [Mr A] applied to the Federal Circuit Court of Australia for a review of the first Tribunal’s decision and, [in] October 2017, the Court remitted both matters to the Tribunal by consent to be reconsidered in accordance with the law. Both matters were subsequently constituted to the present Tribunal (the Tribunal) for consideration. On 25 November 2020, [Mr A] appeared before the Tribunal and gave oral evidence. On 15 February 2021, the Tribunal remitted [Mr A]’s matter to the Department for reconsideration with the direction that he satisfies s.36(2)(a) of the Act. Having departed Australia for Turkey [in] August 2018, [Mr A]’s wife and his daughter withdrew their review applications, leading the Tribunal to find that it had no jurisdiction to review the delegate’s decision in relation to [Mr A]’s wife and his daughter.The applicant’s capacity to give evidence

Evidence

Evidence Before The Court

In these circumstances, and pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. CLAIMS AND EVIDENCE In a statement attached to her protection visa application form, the applicant made the following claims: She is an Alevi Kurd and the eldest of five children. Her husband, who passed away in 2009 was an active member of pro-Kurdish parties since the early 1990s and had experienced ‘severe persecution by the gendarmes.’ Her husband was accused of being a separatist, as well as aiding and abetting the Kurdistan Workers’ Party (PKK) and as a consequence, he was beaten, detained and their house was raided. Following these incidents, they decided to leave their village in 1988 and move to Istanbul. Her husband’s cousin, [Mr F], experienced ‘serious harm’ at the hands of the security forces due to his involvement in Kurdish political movements. [Mr F] left the country and successfully sought protection in the UK in 2008. Another relative, [Mr G], was arrested for his involvement in the Communist Party of Turkey (TIKKO), ‘an illegal left-wing political organisation’ and continues to be incarcerated. As Alevi Kurds, the applicant and her family experienced discrimination and had to conceal their religious beliefs. She and her children could not speak Turkish and her children left school due to ‘racist, unfair, and discriminative’ treatment. The applicant’s husband was well-known within the Kurdish community of Umraniye, and he regularly met with friends to discuss politics. Her husband attended offices of pro-Kurdish political parties and participated in political meetings, protests and demonstrations. He also provided financial assistance to these parties. Her son also attended political groups and activities after leaving school, leading to his arrest and interrogation in May 2003. Her husband and son became more involved with the Democratic Society Party (DTP) between 2005 and 2006. She too attended some meetings and participated in cultural activities. In 2008, her son was harassed by the police in his workplace and had to leave his job. In April 2009, her husband passed away. At her husband’s request, his friends from the DTP came to bury him in the village and covered his coffin with the Kurdish flag. On the way to the village, they were intercepted by the local police, who wanted them to remove the flag from the coffin. An argument ensued and her son was arrested. He was released and they were allowed to continue with the funeral proceedings only after the flag was removed. In 2010, her son was detained again and accused of having links with illegal organisations. He was mistreated in custody. [In] January 2013, their home was raided by the police and her son and daughter-in-law were taken away. They were released that evening. [In] January 2014, the police raided their home again and her son was taken away and assaulted by the police. Following her son’s departure from Turkey in April 2014, her house was raided by the police and she was asked about her son’s whereabouts. She was assaulted and accused of ‘protecting a criminal’, after she told them she did not know where he was. Supporting evidence

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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