1806886 (Refugee)

1806886 (Refugee) [2021] AATA 3241 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1806886

COUNTRY OF REFERENCE: Turkey
MEMBER:Shahyar Roushan
DATE:30 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 30 June 2021 at 6:17pm
CATCHWORDS
REFUGEE – protection visa – Turkey – political opinion – Kurdistan Workers' Party – religion – Alevi – particular social group – relatives of PKK members – race – Kurd – detention – torture – physical violence – state protection – mistreatment by the Turkish security authorities – political activities in Australia – crimes committed abroad – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, 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 Home Affairs on 8 March 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
BACKGROUND
The applicants are husband, wife and their son. The first named applicant (the applicant) has made his own specific claims for protection. His wife and son have relied on their membership of the applicant’s family.
The applicant is [an age]-year-old Alevi Kurd and a national of Turkey. He was born in Adiyaman, Turkey. He resided in Adiyaman between [year] and [year], and in Istanbul, between [year] and 2014. His parents, [and siblings] reside in Turkey.
The applicants arrived in Australia [in] March 2014 on Student visas and applied for Protection visas on 18 May 2017.
CLAIMS AND EVIDENCE
Protection visa application
The applicant made the following claims in his Protection visa application form:
He left Turkey to avoid persecution by the Turkish security forces, due to his family’s involvement in Kurdish politics.
After his brother joined the Kurdistan Workers' Party (PKK), the applicant was abducted, interrogated, beaten, tortured, and threatened with a gun. He was forced to be an informer by the Turkish police. When he tried to report the incident, he was interrogated and his claims were not taken seriously.
If he returns to Turkey, he and his family will face physical and psychological harm from the Turkish authorities. He would not be able to avoid this harm by internally relocating.
Supporting evidence
On 6 December 2017, the applicant’s representative, [named], forwarded to the Department a detailed statement by the applicant, dated 4 December 2017.
The applicant provided the following information in his statement.
He was born into a Kurdish family and lived in [Village 1], a central village in Adiyaman, Turkey. Kurds born in any Kurdish province in South East or Eastern Anatolia are considered second-class citizens. His family were known supporters of the PKK in Adiyaman and were not liked by the Turkish State.
Due to their proximity to the PKK, his grandfather and his grandfather’s family members were exiled to ‘different places’. When the PKK began to struggle, his family lost economic power and the government discredited his well-respected family.
His father was subjected to physical violence and torture and his family members were subjected to various insults and persecutions in public, in order to prevent other villages from contacting them. His uncle was forced to cut off his beard, a symbol of masculinity in Kurdish society, and forced to eat it. He was also forced to take his salvar (traditional Kurdish costume) off and carry his wife on his back in front of everyone.
After the death of his grandfather in [year], the applicant’s father moved to Istanbul in [year] to protect his children. The applicant was [age] years old at the time and left school to work and support his father. His parents tried to keep him and his siblings away from political activities, however, the applicant and his [Brother B], attended discussions, and Nowruz events.
The applicant was not an official member of any political party but supported the Kurdish political parties ‘materially and spiritually’. [Brother B], however, became actively involved in the Patriotic Revolutionary Youth Movement ((YDG-H) the militant youth wing of the PKK) at university in Ankara.
In July 2004, [Brother B] travelled to [Country 1] with his friend, [Mr C], to study [subject]. However, it was later discovered that this was a ‘cover’ for joining the PKK. In April 2005, [Mr C’s] brother faxed a letter to the applicant from [Brother B], stating that he and [Mr C] had joined the PKK.
After he received the letter, the applicant noticed a police car parked across his business for a week. One night, a few people came to his shop, claiming to be the police. They searched his shop and told him that they needed to take a statement from him at the police station. The applicant was blindfolded and taken to an unknown location. He was beaten and asked questions about the whereabouts of [Brother B] and [Mr C]. He fainted at some point and was left on the road on same night. He was later picked up by a passing car.
The following day, he went to the police station to lodge a complaint about being tortured by the police officers. They asked him many questions such as ‘how do you know whether they were police?’ and did not accept his official complaint.
His [Sister D] was studying at Ankara, and was close to [Brother B’s] friends from the YDG-H. After graduating, she could not find a job in the public or private sectors despite receiving very high marks. His other sister, [named], studied at a university at [another location] but left school due to ‘safety reasons’. She later married a relative and went to [Country 2].
In 2011, [Mr C] lost his life in a clash between PKK forces and Turkish forces in Hatay. The applicant was interrogated again and asked about whether he was communicating with his brother and [Mr C]. The police wanted him to become an agent and spy for the state. He was threatened with death and a gun was held to his head.
On another occasion, the applicant was approached by the police and offered financial assistance and business opportunities to convince him to work for them. However, he refused.
[In] February 2012, the applicant married his distant relative, [Ms E], who was [an Occupation 1]. [Ms E] was forced to resign from her job after working ‘in very difficult conditions’. She later suffered a miscarriage and took one year of unpaid leave so as not to lose her job. During this period, she visited her [relative] in Australia in August 2013 and was later granted a Student visa to study [subject] in Australia.
While the applicant and his wife were in Australia, there were serious developments in Turkey regarding the situation of the Kurds, including the Suruc massacre in July 2015 when the PKK restarted its military campaign against Turkish forces and the peace process officially ended. This was followed by the imprisonment of HDP MPs and the abolishment of assignments of the elected DBP mayors. The situation deteriorated after the July 2016 coup attempt. Kurdish cities were destroyed by the Turkish army and Kurdish civilians were detained, arrested, and imprisoned.
He has been informed by his sister over the phone that prior to Nowruz in 2017, his mother’s house in [a location in] Ankara, was raided by the anti-terrorism unit. They confiscated books and materials from his sister’s room and questioned his mother about her children. They also confiscated photos of the applicant and [Brother B] and asked his mother if they had joined the PKK. His mother told them she does not know where [Brother B] is, and that the applicant was in Australia with his wife.
The applicant fears for his and his family’s safety as they will be exposed to bad treatment in Turkey.
In a covering submission, [Mr A] stated that the applicant has a well-founded fear of persecution on the basis of his pro-Kurdish political opinion and membership of the particular social group consisting of ‘relatives of PKK members in Turkey’. The submission refered to extracts from the 2016 DFAT report on Turkey and the 2016 US Human Rights Report to support these claims. [Mr A] also stated that the applicant will be subjected to significant harm if removed to Turkey. It was submitted that the applicant believes he would not be able to continue his life in Turkey as he will be seriously harmed and killed, and the authorities will not protect him and his family. [Mr A] also stated that the applicant is receiving professional help due to his serious psychological issues related to his fear of returning to Turkey.
The following documents were also submitted in support of the application.
·Copy of the third named applicant’s birth certificate, indicating that he was born in Australia on [date].
·Copy of a psychological report dated 3 December 2017, by [Psychologist F]. The report states that the applicant was self-referred to [a named] Consultancy Service on 10 August 2017 for the treatment of anxiety. He was assessed on 10 August 2017 and attended five consultations. The report outlines the applicant’s protection claims as recounted by him. It states that after the applicant was arrested for the second time in 2011, he experienced symptoms including severe anxiety, which settled with the help of his wife. However, in 2015 he experienced very similar symptoms again, amidst the situation in Turkey between the Turkish government and Kurdish freedom fighters. The report states that the applicant ‘lost all his hopes for a peaceful and normal life free from persecution’. [Psychologist F] stated that the applicant was diagnosed with Generalised Anxiety Disorder (GAD) and that this was the result of ‘severe physical, emotional, psychological, and social discrimination’ including threats to his life, by the Turkish authorities.
·Copies of unlabelled photographs, featuring the applicant in the company of other individuals, including his brother [Brother B].
The interview
The applicant attended an interview with the Department on 7 December 2017. The interview was conducted with the assistance of an interpreter in the Turkish and English languages. Where relevant, the applicant’s evidence at the interview is referred to below.
The delegate’s decision
On the basis of his written claims and oral testimony in the protection visa interview, the delegate was not satisfied that the applicant’s claims to fear being harmed by the Turkish authorities is credible. The delegate found that the applicant’s delay in seeking protection raises considerable doubt in relation to whether he fears persecution in Turkey for the reasons claimed. The delegate found that the applicant would not be persecuted for one or more of the reasons mentioned in s. 5J(1)(a) of the Act. The delegate also found that there is no real risk that the applicant will face significant harm as a necessary and foreseeable consequence of being removed to Turkey.
Review application
On 14 March 2018, the applicants applied for a review of the delegate’s decision.
On 4 March 2019, the applicant submitted a copy of a birth certificate in relation to his second [child], born in Australia on [date].
On 26 May 2021, the Tribunal received a submission from [Mr A] and a number of supporting documents, including a statutory declaration by the applicant, declared on 19 May 2021.
In his statutory declaration, the applicant provided the following information.
About one week after his protection view interview, his [Sister D] was stopped in front of her house by some people from the MIT (Milli Istihbarat Teskilati – Turkish Intelligence Organisation). They told [Sister D] they knew who she was and had been listening to her phone calls. She was asked if she had any information about [Brother B], and whether the applicant or their [sibling] who lives in [another country], were in contact with him. They left after [Sister D] told them that she did not have any information about [Brother B] but said that they would call her later.
Around Christmas in 2017, one of the people who had previously visited [Sister D] called and asked her to report to the Anti-Terror Centre in Ankara. Whilst there, she was asked again about [Brother B] and whether the applicant contacted or support him. When she denied this, they threatened [Sister D] and told her that she is being followed.
The applicant’s parents were told by ‘someone from the counter terrorism branch’ that [Brother B] was killed in a conflict in [a location] [in] 2019. His father went to [a named town] to identify the body and discovered that the person who was killed was not [Brother B]. Later in October, someone from the counter terrorism branch went to his father’s workplace and asked him if he had further information about [Brother B]. His father told them that the deceased was not [Brother B] and he had no information about him.
Shortly after this incident, the people from the MIT visited [Sister D] and asked if she, the applicant, and [their named sibling] had any information about [Brother B]. They told [Sister D] that they are aware that she is experiencing financial difficulties and said that they could help her if she gives them information. She rejected their offer and left.
In February 2020, some people from the MIT called his father and requested that he attend the counter terrorism branch. His father was questioned about his brother and asked to be an informant. After his father refused, they called him ‘the father of the terrorist’ and ‘lynched’ him. The applicant stated that his father ‘could not even document the torture he suffered’ and could not get a medical certificate.
In his covering submission, [Mr A] recounted the applicant’s protection claims as made to the Department and in his statutory declaration of19 May 2021. [Mr A] reiterated that the applicant faced mistreatment in Turkey because of his Kurdish ethnicity and political opinion as he was perceived to be a PKK supporter. He stated that unlike his brother and other family members, the applicant supported Kurdish political parties and was not in favour of taking up arms to fight against the Turkish forces. It was stated that after coming to Australia, the applicant continued his political activities with the [Australian Kurdish Group 1] and regularly attended events and protests. During many of these protests, the applicant carried YPG, YPJ and PYD flags and banners with a photo of PKK leader, Abdullah Ocalan. Some of these political activities were reported in the pro-Kurdish media, [named] which the Turkish authorities consider to be a PKK affiliated organisation.
[Mr A] submitted that the applicant faces a real chance of persecution on the basis of his Kurdish ethnicity and his pro-Kurdish political opinion. He also faces a real chance of persecution because of his membership of the particular social group of ‘relatives of PKK members in Turkey’. The submission refers to an extract from the UK Country Policy and Information Note on HDP, which indicates that family members of actual or suspected PKK members/supporters might encounter difficulties ‘especially if the PKK supporter is a guerrilla fighter’. [Mr A] stated that the applicant’s family members were mistreated by the Turkish security authorities on multiple occasions because of their Kurdish ethnicity and political opinion. It was submitted that if the applicant was forced to return to Turkey, the applicant is likely to face similar mistreatment.
In addition, [Mr A] stated that because of his political activities in Australia, the applicant is likely to be charged with the following offences: ‘aiding a terrorist organisation knowingly and willingly’, ‘insulting the Turkish President’, ‘insulting the Turkish Nation, The Republic of Turkey and also the public officers’, and ‘making propaganda for the terrorist organisation’. [Mr A] referred to an attached expert opinion a solicitor, [Solicitor G], stating that the applicant can be sentenced to up to 26 years and 8 months imprisonment for his political activities in Australia. It was further submitted that the applicant will not have the right to a fair trial and may be subjected to physical and psychological torture during his detention.
[Mr A] provided the following supporting documents to the Tribunal.
·Copies of photographs depicting [Brother B] in the company of others, prior to joining the PKK.
·Copies of photographs purporting to feature [Brother B] after joining the PKK.
·Copies of photographs featuring the applicant attending political activities in Australia. Some of the photographs depict the applicant holding the YPJ flag and a picture of Abdullah Ocalan at what appears to be a public demonstration.
·Copy of a letter of support, dated [in] May 2021, from [Australian Kurdish Group 1]. The letter states that since their arrival in 2014, the applicant and his wife have been regularly attending gatherings at [Australian Kurdish Group 1], including the Nowruz celebrations, Kobani Day commemorations, and demonstrations and protests in Sydney. The letter states that the organisation is aware of the applicant’s protection claims and they believe that there is a real chance that the applicant would be persecuted upon returning to Turkey.
·Copy and translation of a document titled ‘To be presented to the Australian authorities legal expert report’ written by [Solicitor G], former military judge and former public prosecutor in Ankara. The document provides a general overview of crimes committed abroad which are ‘against the interests of the state’ and are punishable by the Turkish Republic. The document refers to various articles in the Turkish Criminal Law and conditions for putting a person on trial in Turkey for crimes committed abroad. The document also refers to relevant offences from the Anti-terror Law No 3713. The document states that the applicant’s [Brother B] is a commander in one of the top management positions within the PKK and had ‘committed armed actions against the State of the Republic of Turkey’ for which he will receive ‘aggravated life imprisonment’ if put on trial. It states that [Brother B] was detained twice by the police force due to his illegal activities and was subjected to physical torture, threats, and insults. The document further outlines the applicant’s activities in Australia, including his activities with the [Australian Kurdish Group 1] in Sydney in [specified months in] 2019 and in January and March 2021. It states that the applicant had participated in celebrations and commemoration activities which featured the PKK, YPG flags and emblems and pictures of Abdullah Ocalan. The applicant was also seen carrying banners with texts against the Turkish Republic. During protests, participants insulted and slandered the Republic of Turkey and the President. [Solicitor G] stated that based on his activities in Australia, the applicant will likely be charged with ’aiding a terrorist organisation knowingly and willingly’, ‘insulting the Turkish President’, ‘Insulting the Turkish Nation, The Republic of Turkey and also the public officers’, and ‘Making propaganda for the terrorist organisation’. It was further stated that it is not known whether there has been any investigation or trial against the applicant under the Turkish Criminal Law, however, if convicted, it is likely that the applicant will be given the ‘upper limit’ of 26 years and 8 months imprisonment. It states that the applicant will not have a right to a fair trial and may be subjected to ‘physical and moral torture’, and discrimination in prison. It was also noted that ‘family members of persons convicted of terrorist crimes will also be marked’. In addition, the document states that those convicted under the Turkish criminal and anti-terror laws are ‘blacklisted’ and that even after they have completed their prison sentence, they are detained as the first suspects in terrorist crimes where the perpetrator is unknown, and subjected to ‘physical and moral violence’.
·Copy of a letter by the Human Rights Association in Ankara, Turkey, dated [in] May 2021. The letter provides general comments regarding the Turkish legal system including terrorism offences, the right to a fair trial, and the monitoring of social media accounts by the authorities.
·Copies of news articles published by four separate Turkish media agencies [in] February 2021. The articles report on the arrest and imprisonment of [PCCK/KCK] members for ‘[terrorism charges] in [a named] village in October 2019’. The applicant’s [Brother B] is named in each article as one of those PKK members.
·Copy of the DFAT Country Information Report on Turkey, published on 10 September 2020.
·Copy of a report by the UK Home Office titled ‘Country Policy and Information Note Turkey: Kurdistan workers party (PKK)’ and published in February 2020.
·Copy of a report by the UK Home Office titled ‘Country Policy and Information Note Turkey: People’s Democratic Party (HDP)’ and published in March 2020.
·Copy of a report by the UK Home Office titled ‘Country Policy and Information Note Turkey: Kurds’ and published in February 2020.
·Copies of two online articles published [in] April 2011, reporting on the murder of PKK member, [Mr C]. According to the articles, he was killed in a clash with security forces in [a named] District of Hatay.
The hearing

The applicant appeared before the Tribunal on 2 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant’s representative, [Mr A], attended the Tribunal hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Initially, at the Tribunal hearing, the applicant demonstrated a tendency to provide vague and equivocal responses to simple questions regarding matters the Tribunal reasonably expected straightforward answers to, such as his employment history in Australia and Turkey. Following a short adjournment and submissions from his representative, the Tribunal accepted his explanation that his initial responses should be attributed to his state of nervousness and anxiety. The Tribunal also placed weight on the fact that the applicant provided detailed and consistent evidence in relation to key aspects of his substantive claims relating to his fear of harm in Turkey. Overall, the Tribunal found him to be a credible witness.
The Tribunal accepts that the applicant is of Kurdish ethnicity and a follower of the Alevi faith. The Tribunal accepts that he was born in the south-east of Turkey but resided in Istanbul prior to his travel to Australia.
According to the US State Department, neither Kurds nor Alevis are recognised as ethnic and religious minorities under Turkish law, which ‘is interpreted to recognize only three religious minorities – Armenian Orthodox Christians, Jews, and Greek Orthodox Christians’.[1] Unrecognised minority groups are reportedly ‘prohibited from fully exercising their linguistic, religious and cultural rights’ in Turkey.[2]
[1] US Department of State 2011, Country Reports on Human Rights Practices for 2010 – Turkey, 8 April, Section 6, Ibid.
According to Minority Rights Group International:
Until relatively recently Alevis survived by living in remote areas. Hopes of faring better under a secular republic failed to take account of popular prejudice. With conscription and the drift towards towns in search of work, Alevis, especially Kurds, have increasingly been exposed to Sunni prejudice and animosity. This was often reflected at an official level, with policies such as the lack of legal status of Alevi cemevis (places of gathering and worship) and the widespread prohibition of their construction - a ban that remained in place until 2015.[3]
[3] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Turkey: Alevis, June 2018,
An Immigration and Refugee Board of Canada (IRBC) response to a request for information on the situation of Alevis in Turkey, in a section headed Treatment by Society, states:
In correspondence with the Research Directorate, a professor at the Department of History, Anthropology & Philosophy at Georgia Regents University, who specializes in the political history of Turkey, explained that some ‘who consider themselves to be devout Sunni Muslims feel that Alevis are non-believers or “devil worshippers”’. Other sources state that ‘many’ Sunni Muslims regard some Alevi practices as ‘heresy’. According to Country Reports 2013, ‘Alevis regularly faced societal discrimination’ The Professor similarly stated that discrimination of Alevi ‘both subtle and more overt, takes place throughout the country’. In contrast, a 2014 article in the Turkey Analyst, a bi-weekly publication of the Central Asia-Caucasus Institute & Silk Road Studies Joint Center that focuses on news and analysis of domestic and foreign policy issues in Turkey (CACI and SRSP n.d.), states that the ‘increasing frequency of anti-Alevi prejudice’ comes from ‘members of the AKP leadership,’ that there has been no major increase in anti-Alevi sentiment ‘amongst the Sunni population as a whole’ and that most Sunnis and Alevis co-exist with relatively few problems on a daily basis.[4]
[4] Immigration and Refugee Board of Canada, Turkey: Situation of Alevis, including political and religious rights; treatment of Alevis by society and authorities; state protection (June 2012-May 2015), 12 June 2015, TUR105167.E.
In relation to Kurds, DFAT stated in its most recent report:
DFAT assesses Kurds in Turkey face official discrimination and some sporadic societal discrimination based on their ethnicity. The extent and form of this discrimination depends on geographical location and personal circumstance. Those residing in the southeast, and those active (or perceived to be active) in Kurdish political or civil society organisations are at higher risk than those who are not politically active, or those who support the AKP.[5]
[5] DFAT Country Information Report: Turkey, Department of Foreign Affairs and Trade, 10 September 2020.
In a 2018 report in relation to Kurds, Minority Rights Group International wrote:
Turkey's Kurdish community, besides being the largest minority in the country, is also one of the most discriminated against. Their situation deteriorated further following the outbreak of fighting in 1984 between the government and the Kurdistan Workers' Party (PKK), an armed opposition group fighting for self-determination. Increasing violence on both sides has resulted in the displacement of millions of civilians… While the conflict continued to exact a heavy death toll and displace hundreds of thousands of Kurdish civilians, the government also maintained a heavily discriminatory policy towards the community as a whole. This included the removal of Kurdish public officials, harassment of Kurdish political groups, targeting of Kurdish media outlets and the arrest of Kurdish politicians for holding party gatherings in Kurdish. The government also continued to conflate any effort to promote Kurdish rights, such as use of the Kurdish language, with support for 'PKK terrorists'.[6]
[6] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Turkey : Kurds, June 2018,
On the basis of this information, the Tribunal accepts the applicant’s claims in relation to past experiences of discrimination for the reasons of his race and religion.
In support of his claims, the applicant submitted numerous documents and photographs. This material clearly established that [Brother B] is the applicant’s brother and that he is affiliated with an armed militia group as a guerrilla fighter. Based on the evidence before it, the Tribunal is satisfied that PKK is the group [Brother B] is or was affiliated with. The Tribunal is satisfied that the Turkish authorities are well aware of [Brother B’s] links to the PKK as a fighter.
The Tribunal accepts that the applicant was monitored, questioned and mistreated by the authorities in Turkey for reasons associated with his brother’s links to the PKK. The Tribunal further accepts that the applicant’s immediate family members in Turkey have continued to be harassed intermittently by the Turkish authorities for the same reasons.
The country information before the Tribunal indicates that family members of PKK members or supporters in Turkey are targeted by the authorities. According to the 2020 UK Home Office Report on the PKK:
One source told the HO FFT that it could be difficult for family members of PKK members/supporters to get a job or even a passport.
When the HO FFT met the Director of a Turkish organisation in the UK he said, ‘Family members will inevitably be affected, especially if the suspected PKK supporter is a guerrilla fighter.’
Speaking about people critical of the government in general, a human rights lawyer told the HO FFT, ‘Members of families of people who are critical of the government will be targeted; if the police cannot find the person they are looking for, they will take another family member. This was very common during the emergency. Families were threatened by phone and their houses were raided.’[7]
[7] UK Home Office, Country Policy and Information Note Turkey; Kurdistan workers party (PKK), February 2020, p 29.
According to DFAT,
[The] UN Special Rapporteur on torture expressed serious concerns about the rising allegations of torture and other ill-treatment in Turkish police custody, since his last visit in December 2016. The Special Rapporteur said there were allegations individuals suspected of links to the Gulen Movement or PKK were exposed to brutal interrogation techniques, including beatings, electrical shocks, exposure to icy water, sleep deprivation, threats, insults and sexual assault. The Special Rapporteur also said torture complaints were allegedly dismissed in some instances because a state of emergency decree exempted public officials from criminal responsibility for acts taken in the context of the state of emergency…
There is limited recent evidence to suggest prisoners detained for PKK and Gulen-related convictions are treated worse than others.[8]
[8] DFAT Country Information Report: Turkey, Department of Foreign Affairs and Trade, 10 September 2020.
The Tribunal is mindful of country information before it, indicating that the Turkish government now actively monitors social media activities of pro-Kurdish and anti-government activists. In 2018, DFAT, citing human rights defenders, reported 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.[9] In a recent response, the Research Directorate, Immigration and Refugee Board of Canada stated:
According to sources, the Turkish government alleges that the HDP has ties to the PKK, which is designated as a "'terrorist'" group by the EU, among others, including Turkey… According to the Director of a UK-based Turkish organization cited by the UK Home Office, “'[b]eing ethnically Kurdish and outspoken politically'” "could cause the authorities to suspect an HDP member/supporter of supporting the PKK... A human rights lawyer cited in the same report stated that HDP supporters could also be arrested "'for handing out leaflets'" and targeted for posting on social media, attending a march, meeting or rally, or entering/exiting an HDP-associated building. In the same report, the Director of the UK-based organization also noted that family members of HDP member may be at risk "'if they show interest in their relative's court case or make political statements on social media or attend political rallies'," and that they may be targeted with threats, raids, beatings or imprisonment.[10] (references omitted)
[9] DFAT 2018, n7, above.
[10] Research Directorate, Immigration and Refugee Board of Canada (IRBC), Turkey: Situation of Kurds, including in Istanbul, Ankara, and Izmir; situation of supporters or perceived supporters of the Peoples' Democratic Party (Halkların Demokratik Partisi, HDP); situation of Alevi Kurds (July 2018-December 2019), [TUR106206.E], 7 January 2020,
Whilst the applicant has not claimed to have been a member of HDP or to have posted comments on social media, the Tribunal accepts that he has been actively supporting pro-Kurdish causes and has participated in rallies and demonstrations in support of Kurdish groups in Australia. The Tribunal accepts that the applicant features in photographs of these events published by [name], a Kurdish news agency, as well as the online version of Green Left. The Tribunal accepts that [this agency] is perceived to affiliated with the PKK.[11] The Tribunal finds that there is a high likelihood that the Turkish authorities monitor reports by Kurdish news agencies. The Tribunal did not form the view that the applicant has engaged in these activities in Australia for the sole purpose of strengthening his protection claims.
[11] [Source deleted].
Having carefully considered the evidence before it, the Tribunal is satisfied that, if the applicant were to return to Turkey, there is a real chance that he will be subjected to interrogation and questioning involving brutal techniques. The Tribunal is satisfied that there is a real chance that he would also be subjected to other forms of serious harm, including detention, significant harassment, serious physical harm or ill-treatment. The Tribunal is satisfied that such treatment would amount to persecution within s 5J of the Act. The Tribunal is satisfied that the essential and significant reasons for the persecution feared are the applicant’s race, imputed political opinion and membership of the particular social group of his family. The Tribunal is satisfied that the real chance of persecution relates to all areas of Turkey.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
The applicant’s wife and his son did not make their own claims for protection and relied on their membership of the applicant’s family. The Tribunal is satisfied that they are members of the same family unit as the applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Shahyar Roushan
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3241

30 June 2021

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