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

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

   Procedural history

2. 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.

3. 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.

4. 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.

5. 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.

6. 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].

7. 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.

8. 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

9. On 23 October 2020, a Tribunal Officer contacted the applicant’s representative, [Mr B], to inform him that the Tribunal intended to schedule an in-person hearing at its Sydney Registry in the following month. On the same day, [Mr B] wrote to the Tribunal, stating that he had ‘instructions’ that the applicant will not be attending the hearing due to the state of her mental health. [Mr B] submitted a copy of a detailed Forensic Psychological Evaluation Report by [Ms C], Forensic Psychologist, dated 17 August 2020.

10. In her report, [Ms C] outlined the applicant’s personal, medical and psychiatric history and provided a comprehensive account of ‘a battery of well-known standardised psychometric measures’ utilised to assess her current level of cognitive functioning and her capacity to retain information. [Ms C] referred to previous psychological assessments in relation to the applicant in 2016 and 2018 and noted that her findings are consistent with the diagnoses previously made, including PTSD, Generalised Anxiety Disorder and Major Depressive Disorder. In addition, [Ms C] noted that the applicant also ‘quite likely’ meets the diagnostic criteria for Neurocognitive Disorder. She stated:

    …it can be said with some confidence that [the applicant’s] low scores across the assessments which included cognitive ability, were not due to a desire to underperform in the tests, but rather due to the presence of cognitive impairment, and further exacerbated by her lack of formal education, her very low confidence and the chronic symptoms of psychological distress she has been experiencing for many years. Her reports of memory difficulty and her observed poor historical recall is believed to be most likely attributable to this cognitive impairment and chronic psychological distress. [The applicant] was found to be unable to engage in everyday activities required to function, meet environmental demands, care for herself or interact with others effectively.

    When considering if [the applicant] has a cognitive impairment which would impact her ability to participate meaningfully in a hearing in the AAT, the current assessment found considerable evidence that [the applicant] has cognitive impairment which is negatively impacting her cognitive, executive and adaptive functioning. Her overall functioning is being further impacted by her experience of chronic psychological distress which appears to have increased in severity since she arrived in Australia in 2014. Noting the above, along with her difficulties with memory and judgement, it is my opinion that [the applicant] would not be able properly comprehend or accurately respond to questions put to her in the context of an AAT hearing. Furthermore, [the applicant] would not be considered to be able to understand the nature of the proceedings or the substantial impact of the clarity of her evidence to the matter.

    In sum, on the basis of supplied information and extensive interview with [the applicant], and taking into account observations made and her results from formal psychological assessments, it is my opinion that [the applicant], with her current cognitive impairment, would not be able to meaningfully participate in the AAT hearing. She has not shown that she would have the requisite capacity to understand the nature of the proceedings in sufficient detail, respond appropriately to the questions put to her, nor would she be able to follow the proceedings or understand the processes of the Tribunal hearing.

11. At a directions hearing held on 26 November 2020, the Tribunal discussed the issues arising from the submissions received with [Mr A], the applicant’s daughter, [Ms D], who also resides in Australia, and [Mr B]. The Tribunal noted that the medical evidence submitted clearly raises questions in relation to the applicant’s fitness and her capacity to make decisions in her own interest in putting her case forward. Furthermore, in his submission, [Mr B] had referred to ‘instructions’ he had received regarding the applicant’s inability to participate in the proceedings. As [Mr B] has been appointed to act on behalf of the applicant and to provide her with immigration assistance, the Tribunal explained to the hearing participants that the medical evidence relied upon casts serious doubt on the applicant’s capacity and competence to properly instruct [Mr B] due to her disability. In these circumstances, the Tribunal adjourned the proceedings to provide an opportunity for the applicant’s children to consider applying to the Guardian Division of the NSW Civil and Administrative Tribunal (NCAT) for the appointment of a guardian for the applicant with a ‘legal services’ function.

12. A subsequent hearing was scheduled on 12 May 2021.    

13. On 11 May 2021, [Mr B] wrote to the Tribunal, attaching a copy of guardianship orders made by NCAT on 6 May 2021, appointing [Mr A] as his mother’s guardian for a period of 12 months. [Mr A] was given the functions of legal services, health care and consenting to medical and dental treatment. why also submitted a Neuropsychological Assessment Report by [Ms E], Clinical Neuropsychologist, dated 30 April 2021.

14. In her detailed Report, [Ms E] stated that the applicant presented ‘with a history of significant impairment in cognitive, psychological and everyday functioning on current neuropsychological assessment,’ which occurs ‘against a background longstanding history of psychological illness related to depression, anxiety, stress and trauma as well as limited formal education.’ [Ms E] reported that the applicant demonstrated ‘significant cognitive deficits in the areas of attention, processing speed, visuospatial, language, learning and memory functioning’ and that her responses on a psychological screening questionnaire were suggestive of ‘extremely severe symptoms of depression, stress and anxiety.’

15. [Ms E] concluded that the applicant’s ‘presentation is consistent with her longstanding chronic psychological illness but also indicates that an underlying Mild or Major Neurocognitive Disorder needs to be considered given signs of cerebral dysfunction on brain imaging together with significant cognitive impairment interfering with her independence in everyday activities.’ [Ms E] was of the view that:

    [The applicant] does not have the capacity to make decisions for herself related to complex legal matters such as her pending hearing before the Administrative Appeals Tribunal (Migration and Refugee Division) in relation to the review of the refusal of her Protection Visa application. Her ability to understand, follow and answer instructions as well as remember personal details from her past history and recent events is well below age expectations due to significant cognitive and psychological impairment.

16. In a covering submission, [Mr B] stated that, upon instructions received from [Mr A] on behalf of his mother, the applicant will not attend the hearing and that written submissions will be provided on her behalf.

17. 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

18. In a statement attached to her protection visa application form, the applicant made the following claims:

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. Her son also attended political groups and activities after leaving school, leading to his arrest and interrogation in May 2003. 

25. 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.

26. In 2008, her son was harassed by the police in his workplace and had to leave his job.

27. 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.

28. In 2010, her son was detained again and accused of having links with illegal organisations. He was mistreated in custody.

29. [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.

30. [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

31. The applicant submitted a letter to the Department from [Ms H], Social Worker, dated 4 September 2014. In her letter, [Ms H] stated that the applicant had attended three counselling sessions in August and September 2014 and presented with symptoms of Post-Traumatic Stress Disorder and Moderate Depressive Episodes. [Ms H] also noted that the applicant experienced adjustment issues since her arrival in Australia, and her ‘deteriorating mental health’ was exacerbated by ‘significant life stressors’ including her poor financial situation.

    The interview

32. As noted above, the applicant and [Mr A] attended an interview with the delegate on 29 October 2014.

33. Following the interview, the applicant submitted a statement, dated 3 November 2014, clarifying her responses in the interview with the Department. She submitted that she was extremely anxious during the interview and had difficulties expressing herself through an interpreter.

    The delegate’s decision

34. The delegate considered the claims and evidence provided by both the applicant and her son, in relation to his own protection visa application. The delegate raised concerns in relation to the credibility of the applicant based on inconsistencies between her evidence and that of her son as provided during the course of the Department’s interview. The delegate was not satisfied as to the credibility of the applicant’s evidence and found that she had fabricated her claims. The delegate was not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm if she were to return to Turkey.

    Review application

35. On 20 February 2017, in support of the application for review, the applicant’s former representative made a submission to the first Tribunal, repeating the protection claims made by the applicant and her son. It was submitted that both are vulnerable to persecution by groups such as the ‘ultra-nationalist Turkish organisations’ and extremist Sunni groups, on the basis of their political opinions, and support for Alevis and Kurds. 

36. The representative recounted the applicant’s claims to have experienced past incidents of harm and submitted that she was subjected to ‘horrific’ abuse during the police raid on her house in 2014, resulting in significant psychological issues. In addition, the representative provided country information in relation to the situation of Alevi Kurds in Turkey and letters of support from the Australian Kurdish Association and the Istanbul Branch of the Human Rights Association. He also submitted a number of psychological reports in relation to the applicant, including a report by [Ms I], dating back to 2017.

    The first hearing

37. The applicant and her son appeared before the first Tribunal for a combined hearing on 27 February 2017. The first Tribunal also took evidence from [Ms I], Registered Psychologist.

38. In her oral evidence, [Ms I] told the first Tribunal that it had become apparent during her consultations with [the applicant], that she was sexually assaulted during a raid on her home in 2014. She stated that the applicant had become ‘incredibly dysfunctional’ following this incident.

39. On 1 May 2017, the first Tribunal affirmed the delegate’s decision not to grant the applicant and her son protection visas. Whilst it was accepted that the applicant is an Alevi Kurd, the first Tribunal found that the applicant and her son were not reliable, credible and truthful witnesses, and found that they had fabricated their claims in order to be granted a protection visa.

    The present Tribunal

40. The procedural history prior to and before the present Tribunal has been outlined above.

41. Following [Mr B]’s advice that the applicant will not attend the hearing scheduled on 12 May 2021, he made a detailed submission in support of the applicant’s claims, dated 19 May 2021. The Tribunal has considered these submissions.

    CONSIDERATION OF CLAIMS AND EVIDENCE

42. 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.

43. 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).

44. 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.

1. 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).

2. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Analysis, findings and reasons

3. For the reasons detailed above, the Tribunal decided not to take oral evidence from the applicant and to proceed to make a decision on the basis of the evidence and material available to it. For the reasons that follow, the Tribunal has concluded that the decision under review with respect to the applicant should be remitted for reconsideration.

4. The delegate’s decision record suggests that he had primarily relied on apparent inconsistencies he had identified between the applicant’s oral evidence and that of [Mr A]’s at the Departmental interview. However, having carefully examined the evidence, the Tribunal formed the view that the inconsistencies relied upon could, at best, be described as minor. The Tribunal is also mindful of medical evidence provided in relation to the applicant, indicating that she has been diagnosed with cognitive impairment. Whilst the diagnosis appears to be more recent, the Tribunal cannot discount the possibility that the applicant’s cognition might have been in a state of decline at the time of the Departmental interview in October 2014. The Tribunal, therefore, does not share the delegate’s views in relation to the applicant’s credibility. Nor does the Tribunal share the first Tribunal’s views in relation to the credibility of the evidence put forward by the applicant and her son.

5. As stated in its decision record of 15 February 2021 in relation to [Mr A] (1725792 Refugee), the present Tribunal found him to be a credible witness who had attempted to provide detailed and consistent evidence at every stage of the process. The Tribunal accepted his claims in relation to his past support for, association with and membership of pro-Kurdish parties in Turkey. The Tribunal accepted [Mr A]’s claims in relation to his past experiences of harm for the reason of his race, religion and political opinion in Turkey.

6. The Tribunal further accepted that [Mr A] continues to hold strong pro-Kurdish views and that he is actively involved in pro-Kurdish organisations in Australia. The Tribunal accepted [Mr A]’s evidence that he had posted certain pro-Kurdish comments on his [social media] account in 2016, which were subsequently branded by the Turkish authorities as ‘propagandising for a terrorist organisation’. The Tribunal accepted that the Turkish government actively monitors social media activities of pro-Kurdish and anti-government activists and that pro-Kurdish activists who made comments on social media that authorities found offensive were now likely to be identified as PKK supporters and faced much harsher punishments than in the past.[1] The Tribunal accepted that [Mr A] is a ‘genuine objector to the conduct of the Turkish government’ and that the comments were not posted for the sole purpose of strengthening his protection claims. The Tribunal accepted that, in 2019, [Mr A] was refused a new Turkish passport by the Consulate General of the Republic of Turkey in Sydney. He was also informed that he was ‘under investigation in Turkey’ and there was an ‘arrest warrant’ issued against him. The Tribunal accepted as legitimate the documents submitted by [Mr A] in support of these claims, including a copy and translation of an ‘Indictment’ issued [in] 2018 by the Republic of Turkey, Istanbul, Office of the Chief Public Prosecutor. According to this document, [Mr A] is accused of having committed an offence by commenting on [social media] posts featuring photographs of members of a ‘terrorist organisation.’ The Tribunal also accepted as legitimate a document issued by the Republic of Turkey, Istanbul, Criminal Court of Peace, stating that [Mr A] is ‘suspected of propagandising for a terrorist organisation’ and that the matter had been adjourned as he had gone abroad. The document also indicated that an arrest warrant has been issued and that [Mr A] is to be taken to the Istanbul Chief Public Prosecutor’s Office within 24 hours of his arrest. The Tribunal accepts that a criminal case was filed against [Mr A] [in] 2020 at [a Turkish] Criminal Court, and that subsequent hearings were listed.

   [1] DFAT Country Information Report: Turkey, Department of Foreign Affairs and Trade, 9 October 2018. 

7. [In] August 2018, [Mr A]’s wife, [Mrs A], and his daughter departed Australia for Turkey, where they have remained ever since. The Tribunal accepted the evidence provided by [Mrs A] in a written statement, which was supported by evidence provided by [Mr A]’s sister and brother-in-law, stating that she was detained, interrogated and repeatedly harassed upon her return to Turkey for reasons related to her husband’s political views and circumstances. [Mrs A] stated that she was questioned by the Turkish authorities at the airport upon her arrival. She was verbally abused and interrogated in relation to her husband’s whereabouts, his Australian visa, whether he will return to Turkey, and his political activities. Her family home in Bursa was subsequently raided by the Anti-Terror Squad, she was taken to a police station, detained for six hours, interrogated, verbally abused and threatened. She was asked about her husband’s political activities with the Kurdish Association in Australia, and about his Protection visa application. On a subsequent occasion, [Mrs A] was again detained for five hours and interrogated. She was shown photographs, featuring activities of the Australian Kurdish Association in the community and was asked to identify those featured in the photographs. She was again threatened and ‘insulted’ by the police officers involved. Subsequently, the police visited her house on a regular basis to question her about her husband.

8. The Tribunal’s own findings in relation to [Mr A] are highly relevant to the applicant. The Tribunal adopts those findings and accepts the evidence upon which they were based for the purposes of this statement of decision and reasons. In addition, the Tribunal is prepared to accept the applicant’s previous accounts of her experiences as a consequence of her husband’s support for pro-Kurdish parties and her own attendance at meetings and Kurdish cultural events. Having accepted [Mr A]’s evidence that he was subjected to mistreatment by the Turkish authorities, with ramifications for his immediate family members, including his mother, the Tribunal accepts that the applicant was sexually assaulted by the Turkish police following the departure of her son from Turkey. 

9. The Tribunal considers it highly likely that, if the applicant were to return to Turkey, she will be subjected to treatment similar to that endured by [Mrs A]. The Tribunal is satisfied that there is a real chance that she will be subjected to short-term detention, extensive interrogation, verbal abuse and threats. The Tribunal is satisfied that this treatment will be directed at her due to the authorities’ interest in [Mr A], as well as her own Kurdish ethnicity and past encounters with the authorities. The Tribunal is also of the view that there is a real chance that this form of treatment is likely to recur due to the Turkish authorities’ ongoing interest in [Mr A], the criminal case filed against him and his continued absence from Turkey.

10. In considering the impact of this treatment on the applicant, the Tribunal has placed particular weight on the medical evidence detailed above. This incontrovertible evidence of the applicant’s cognitive impairment and other mental health issues strongly suggests that she is highly vulnerable. The Tribunal is of the view that if the applicant were to be isolated, interrogated and threatened upon her return, it will cause her extreme fear and anxiety, well beyond what may be experienced by someone without her medical profile. Moreover, in her Report, [Ms E] had referred to the applicant’s manner of engagement with her in the course of the neuropsychological assessment. [Ms E] had observed that [the applicant] was a poor historian, repetitive, had difficulty elaborating or providing further details and very slow, brief and vague in her response to questions. She also observed the applicant to be very quiet and having difficulty responding to interview questions. The Tribunal is of the view that, due to her cognitive impairment, it’s likely that the applicant will not be able to engage with or respond coherently to any questions asked of her by her interrogators in Turkey, which may attract further scrutiny and coercion by the authorities, who are unlikely to be aware of or sympathetic to her medical profile.

11. On the basis of the above, the Tribunal finds that there is a real chance that the applicant will be subjected to short-term detention, interrogation, verbal harassment and threatening behaviour if she were to return to Turkey. The Tribunal finds that there is a real chance that she will be subjected to this form of treatment on a regular basis. In assessing the seriousness of the harm, the Tribunal has had regard to the applicant’s cognitive impairment, significant mental health issues, and her overall high level of vulnerability.[2] The Tribunal finds that the impact of this treatment on the applicant will be so substantial as to amount to serious harm. The Tribunal finds that the treatment the applicant will be subjected to in Turkey would amount to persecution within the meaning of s.91R(1)(b). The Tribunal finds that the essential and significant reasons for the persecution feared are the applicant’s membership of a particular social group, namely her family, her imputed political opinion and her Kurdish ethnicity. As the applicant’s fear of harm is from the authorities in Turkey, the Tribunal is not satisfied that State protection is available to her. The Tribunal is not satisfied that the applicant would be able to avoid the harm she fears by internally relocating within Turkey. The Tribunal, therefore, finds that the applicant has a well-founded fear of persecution for a Convention reason.  

    [2] In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities: at [35]. It found that this proposition was consistent with the observations of the Full Federal Court in SZTEQ v MIBP (2015) 229 FCR 497 at [153], where it was emphasised that an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned. See also SZBQJ v MIMIA [2005] FCA 143 and SZBBP v MIMIA [2005] FMCA 5 at [35].

12. 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

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

    Shahyar Roushan
    Senior Member