1810263 (Refugee)

1810263 (Refugee) [2021] AATA 4083 (23 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810263
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Rodger Shanahan
DATE:23 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2021 at 4:16pm
CATCHWORDS
REFUGEE – protection visa – Turkey – political opinion – Kurdish political activism – Democratic Society party (DTP) – religion – atheism – credibility concerns – delay in departing Turkey – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 Home Affairs on 5 April 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Turkey, applied for the visa on 31 July 2017.
CRITERIA FOR A PROTECTION VISA
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.
CLAIMS AND EVIDENCE
Protection Visa Application
The following statement was provided in support of the applicant’s claim:
My name is [the applicant]. I was born on [date] in [Village 1] of [District 1], Van where I lived until I was child. I am the [numberth] child of a Kurdish family with [number] children. I am single. My parents and my siblings are living in Turkey. I arrived in Australia [in] February 2016 with Working Holiday visa with one year validity. I am seeking protection from Australian government because I am scared to return Turkey due to serious harm I will face on the ground of my ethnic identity, political opinion and my past political activities.
Van is a Kurdish city in South Eastern Turkey. I started primary school in our village where I studied for one year. After I finished first year of primary school my parents moved from our village to Mersin city in 1994. I continued my education in Mersin. My parents left our village due to security reason. There was heavy oppression from the authorities against villagers. They were accused of aiding and abetting PKK guerrillas. The government was forcing people to vacate their village for so called “security reason” In fact people have been living in their villages for centuries and they didn’t want to leave their lands and house. My father and my relatives were interrogated and assaulted by security forces when they opposed forceful relocation.
I still remember soldiers and special police force raiding our house and searching. I was child and I was unable understand the purpose of those raids in those years. I also remember my father destroyed a Kurdish music cassette before a raid to our home. There were other people in the village who were detained and tortured for aiding and abetting PKK guerrillas. The villagers were also forced to act as a “village Guard” and help security forces. My father refused such offer and he was interrogated as a result. It was state’s policy in those years. Security forces were burning people’s crops so they would leave their village.
A few months we settled to Mersin I continued my education. I had a broken Turkish which became matter of joke amongst in class even at the school. I was being discriminated and called “[name]” meaning [specified animal] in Kurdish. I had very difficult time until I improved my Turkish. My parents were warning me not to speak in Kurdish in the neighbourhood and school. I was therefore sacred to speak Kurdish anywhere other than at home with my family members.
In later years I was highly successful at school. In secondary and high school my political opinion was being formed with what I had experienced and with what I witnessed in Mersin. I was more interested in my ethnic identity and Kurdish language, being my mother tongue. I was criticizing the government attitude and practices against Kurds. I was arguing with my friends when they were discriminating me and Kurds in general. Some nationalists were even saying: ‘All Kurds are terrorists”. I was sometimes arguing in class with my teachers when they were denying our ethnic identity and language.
I had problem a few times in high school and I was warned and threatened by my teachers. I was even accused of being a separatist. I had my first serious problem in March 2004.I was attacked by a group of ultra-nationalists in our suburb. I was badly assaulted by them while I was going returning from Newroz celebrations. My father stopped me from complaining to police. He said complaining to police will trigger more serious problems for me and my other family members. I was very angry because I was victim and I was unable to do anything about it.
After I finished high school I was not successful at the university selection test. I was preparing university test to be held in the following year. I had time and I was spending time with other Kurdish friends. I went to DEHAP (Democratic People’s Party) office with them for the first time. I was also attending activities and meeting organised by the party.
In October 2004 I wanted to visit my village with my father. Soldiers stopped us while we were travelling to village in a car owned by a relative. We were asked the purpose of our visit, where we live etc. The way we were questioned was very threatening. They questioned me and my father separately. I later found out they asked the similar questions to us. We later heard soldiers asked other people about us and the purpose of our trip to the village. I think they were suspected we had link with PKK.
In June 2015 sat university test again however I was unable to get the score I needed to study architecture. I decided to sit the test again in the following year. I got involved in politics more within DEHAP. I was detained and interrogated by police after the Newroz Celebrations I attended in Mersin. Police raided my family home and took me to anti-terror unit where I was held for 6 hours and interrogated. They alleged I opened Ocalan’s poster at the celebrations. I denied the allegations and told them I was not the person. They hit my head when I rejected their allegations. In the end I believe they were convinced and they released me. I heard many other Kurds were interrogated.
In late 2005 DTP (Democratic Society party) substituted DEHAP. DTP received greater support from Kurds and other left-wing groups in the country. I was attending DTP office and continuing my political activities with the new party. In June 2016 I sat university test and decided to enrol in [Discipline 1] of [University 1] in [District 2] of Antalya city. I started university education in September 2006.
In the beginning I was staying with friends whom I contacted through my friend from DTP. I was staying with other 3 Kurdish students studying at the same university campus. Two of my friends had already been studying and they were aware of the risk against Kurds. They warned me and my friend. I was careful and had no problem for about 5 months. In February 2007 police conducted ID check and body search at the university campus. They later checked my bag and found a book about Kurdish cause. They started threatening and shouting. They said they would not tolerate such separatist publication into university campus.
The book was legal publication. Students who were around were watching while it was happening. After this incident I realized I was look at with hatred looks by nationalist students. I felt sometimes frightened because the [District 2] was a nationalist town and it was stronghold of ultra-nationalist group known as “Ulkucu”. I had no other problem until I finished first year of my university education in June 2007.
I started second year of university study in September 2007 after sending my school holiday in Mersin with my parents. During the second year I was travelling to Antalya to attend DTP office with my friends. I was attending political and cultural activities organised by the party. I met many other politically active Kurds in Antalya. My political activities at the university campus and in [District 2] were limited due to safety reason. I was having problems with ultra-nationalist however they were not serious.
We travelled to Antalya following the closure of DTP by high court. We visited some friends to discuss what we could do about the closure. There were police everywhere in Antalya. We returned to Antalya. On the same day in late evening, police raided our unit and alleged that we were undertaking illegal political activities within the university. They took ail of us to police station. We were interrogated by specialist anti-terror unit police from Antalya. They were alleging that we were organising political meetings at our unit for separatists and making propaganda of PKK. Police assaulted me and my friends because we all refused their allegations, in fact we were having Kurdish visitors however none of them was politically motivated.
We were lucky we had no publications at home which they would see as illegal. We were released on the next day after being held there for about 10 hours. I finished university in June 2011 and found job in a [workplace] close to [District 2]. I was working long hours during peak season (June July August) and had more time for me after peak season. I was sometimes visiting my parents in Mersin.
BDP (Peace and Democracy Party) was our new pro-Kurdish party following the closure of DTP. I continued attending BDP Antalya while I was working. In or around 2012 I decided to apply visa from [Country 1] to gain international experience. I was granted visa for work practice in or around September.
I travelled to [Country 1] in September 2012 and completed my work experience of 12 months. I returned to Turkey upon the completion of my work practice in September 2013. I found another job in [District 2] in [workplace] again where I worked as [Occupation 1] for about 8 months. In June 2013 I was offered similar position with better conditions in another [workplace] in [District 2], which I accepted. I worked in this [workplace] until September 2014 which was the end of [Discipline 1] season. I didn’t start another job because my compulsory military service was due around that time and I was unable further defer it.
I did my short term military service for 6 months from December 2014 until May I experienced some degree of discrimination because of my ethnicity. I was unable to hide my Kurdish identity because my place of birth is Van. After the military service I returned to Mersin. I was planning to start working. In the mean time I was attended political activities. [In] June police raided my family home. I was kept in detention for over 24 hours. I was mistreated by counter-terror police while being interrogated. I was forced to accept I was involved in YDG-H (The patriotic Revolutionary Youth Movement).
I denied their allegations and I said I had no involvement in such organisation. From the questions they asked I realised police had investigated and collected information about my past political activities. I was released in the early morning of the second day. I later found out my close friend [Friend A] was also detained as part of the same operation including. I noticed I was under surveillance. I was scared to leave home. I didn’t know what to do. I wanted to be away from Turkey for an extended period of time and decided to apply working holiday visa.
I waited the assessment of my visa application for about 3 months. Around the same time one of my friend said he would help me to find a job in a [business] in [Country 2] where I would stay long term. He said the position would be available after New Year. My friend contacted me in later January and said the management would not employ anybody for the position. I had Australian working holiday visa which was open for my stay for a year from the date of entry. I left Turkey [in] February and arrived in Australia on the next day.
I was planning to stay here for a year and return to Turkey. When I heard my friend [Friend A] was arrested I became frustrated and started searching a way to stay here longer as much as I could. I therefore applied for a student visa in or around January 2017 believing that I would be granted. My application for student visa was refused and I lodged an appeal for the refusal of my application. In the mean time I was so scared of being refused again. I then decided to apply protection visa because I would in high risk of being persecuted if I return to Turkey.
I would like to be protected by Australian government and would like to live here in the future. I will give more information about claim when I am called for an interview.
AAT Hearing
It was put to him that he had been requested to provide some witness statements to accompany some photos he had provided to the Tribunal and was asked if he had provided them. He claimed he had written them emails but they were busy during Eid but he would arrange for them to be provided. It was put to him that he had been given sufficient time to provide them and the Tribunal needed them prior to the hearing so that he could be examined about them.
He said he had only received the request just prior to the hearing and it was put to him that he would surely have provided some statements in support of the photos – the Tribunal simply needed some emailed statements and he was given until the following Monday. He said that he would provide these.
It was also put to him that he had provided a range of country information to the Tribunal but it was not clear what its relevance was to his claim and he was asked to do this prior to the hearing. He said he replied and said that he would explain it at hearing. He said that he sent this information because of injustice regarding human rights and the negligence of laws.
He claimed that he is Kurdish and had political views and there was a well-founded cause for him to be arrested in Turkey. Asked what would happen to him if he returned to Turkey he said that in the current political climate he would be arrested and tortured. The authorities would do this because if his past political activities and what he had done in Australia, what he had shared on social media. It could be everything.
He also claimed there was no religious freedom which could also be a part. He was then asked if he had a claim regarding religious identity and he said that in Turkey he couldn’t tell them he was a non-religious person. If they knew about this he would be killed as people were killed for not fasting. He would be killed by a government party member or supporter. Asked if he was an atheist or non-practising Muslim, he said he was an atheist. He said he had no other claims.
He had been involved with HDP and student demonstrations and the political situation in Turkey was very bad at the moment. He was asked to go through his history of political activism and why he would be targeted. The Tribunal advised him that it had his written statement but wanted to hear from the applicant. He said he came to Mersin in 1994 as the villages were emptied out and they had to go to Mersin.
Mersin was Turkish and this was the language. He went to primary school and experienced discrimination but became politically aware and active in high school. When he finished high school he joined in activities such as Newroz. He explained in the statement that he was attacked in 2004 on his way back from Newroz. In 2005 there had been a house raid and he was taken to the police station where he was detained in a cell for six hours. Asked if any other family members were taken, he said that his older brother was also taken. He hadn’t mentioned this in the statement as he thought it was only about him. If he added his brother then there were many other family members. Asked how many family members were taken, he said it was just him and his older brother. There was only a younger sister there at the same time.
Asked why he was targeted, he claimed that it was because he went to Newroz and hung up a poster of Abdullah Ocalan. He then made it into university and he got involved in party activities there too – the political environment at university pushed him into it. During a police search they found books which were legal but the police asked why he had them and implied they were illegal. This is what happened.
In 2007 DTP closed and they wanted to discuss this at a building in [District 2] and there was a police raid and he was detained for 10 hours. He was accused of being a member of the PKK and doing propaganda for them. He claimed there had been tens of raids at his home and he couldn’t remember them all. His computer was taken and he had told this to DIBP before. Asked if he mentioned this in his statement – asked what years the raids were carried out, he claimed that there were lots when he was a student. Between 2007-2011/12. He agreed that he was raided dozens of time, his computer was taken. Books were also taken. It was put to him that he must have been of significant interest to them given he was raided so many times. He said he was a Kurdish student and a member of the Kurdish student group and a member of the parties. They would raid early in the morning.

Asked if he took part in protests and the like he said that he would join them at the building in [District 2]. Asked if he had any evidence of his political activity such as protests, social media evidence or photos of him at any party meetings or engaged with any party. He claimed that the HDP building was burnt in September 2015 and the minister was arrested. He told this to DIBP who rejected him before because of no evidence. He was asked again if he had any evidence of his participation with any political group in Turkey such as social media or photos.
He said that he tried to get in touch with the head of the party but he had been arrested. He was asked again and he said he had no evidence. He said they were all in the building in [District 2]. He again said the head of the party was in jail and he couldn’t get hold of any pictures. He was asked why he, his family or university friends had no photos of his activity or no photos of him had been uploaded onto any social media. It was strange that every image of him was contained in the building in [District 2] and not available anywhere else.
He said there was a staff in HDP that took all the photos. He was asked about his colleagues at university or elsewhere who would have taken photos on their iPhone or the like. He said that he had some photos of Newroz. He said that social media wasn’t very popular in those days and they knew what they were doing was illegal so they didn’t upload anything. It was put to him that HDP was legal as was DTP and he said they were but they weren’t looked upon well. It was put to him that the groups weren’t illegal and he agreed but said this was in name only.
He claimed that he was also hit on the head by the authorities. Asked if he had any photos or medical records that would support this claim he said he didn’t try to get them as he would have been arrested. Asked if he was ever arrested or charged he said he was placed under surveillance. Asked again if he was arrested or charged, he claimed that he was detained for 10 hours. Asked if he was charged and went to court for an offence, he said when they were detained they would be put in front of the judge and they would be released. It was put to him that if they appeared before a judge they must have been charged with an offence, and he claimed that if he had been charged they wouldn’t have been put in front of a public prosecutor. They were let go after seeing a prosecutor – it was not a judge. The documents about their arrest goes to the prosecutor who decides if they go to court and in his case he was let go. He was arrested but not charged.
His political activity continued at university. He then went to [Country 1] in September 2012 for a year. He had no problems in getting a passport or in leaving Turkey. There was no extensive pressure at this time else he would have applied for protection in [Country 1]. It was put to him that he said there was no pressure yet he claimed he was arrested three times, raided dozens of times and his computer taken away. He said that this was normal. He was asked if he feared nothing despite all these things allegedly happening to him, and he said that this had become ordinary. There was a period of resolvement that had happened in Turkey and he had the legal means to stay in [Country 1] longer but Turkey was in a period of resolvement when he returned.
Asked if he was happy about serving in the Turkish military he said he wasn’t happy but it was compulsory. It was put to him that he claimed the Turkish military had expelled his family from their village and he could have applied for protection in [Country 1] as a conscientious objector. He said that there were no arrests happening in Turkey at this stage so he felt okay to return. He was asked if the Turkish military had expelled his family from Van and forced them to move to another, Turkish town. He said he had to serve so he could move to Australia and he couldn’t postpone it any longer.
Australia also made it a requirement and his village had been emptied quite a few years before. Asked why he didn’t apply for asylum in [Country 1] as a conscientious objector – it was strange to the Tribunal that he would join the same military that had done to his family what he claimed they had. He said that there was a period of resolvement and that he hoped he could get out of service by paying money but not at the time he joined. He said he thought he could pay the fee but when he researched coming to Australia he saw this was a requirement. He wanted to come the year before.
In the military he was a private soldier. He had problems in the military. His weapon was taken away and he was told that he wasn’t psychologically fit to have a weapon. Asked if he had said this before, he claimed that he believed he told the DIBP officer. He was told that he would be given time post-hearing to show the Tribunal where in his interview that he had mentioned this to the DIBP officer. He said that he would be given menial tasks – he was in the military for six months.
Asked if anything else happened to him before he came to Australia, he claimed that when he came back from the military that was when the period of resolvement began falling apart. He got out of the military in May 2015 and this was when peace was dissolving. Asked if he was politically active at this stage, he claimed that his house was raided again in June 2015. He was arrested, kept for 24 hours and accused of being part of YDG-H. He was not given any arrest warrant. Everyone was being arrested and he was afraid of this environment and tried to get away from this environment.
This was the day he thought things would get worse. He tried to stay away. Asked if he was charged and why he was released, he said that he experienced violence that day and as a result he tried to stay away. He feared for his life and the political environment was getting worse. After June 2015 there was endek when 3,000 people were killed in five cities in the east of the country. This was an example of the political situation coming to a point. This happened after June, around August 2015.
He said these 3,000 people were killed because they were in, or believed to be in YDG-H. He began distancing himself from politics and too look to go overseas because he feared that he would be prosecuted for no reason. He tried to get a job in [Country 2] but this didn’t work out. He applied for an Australian visa. Because of the killings he was afraid to exit so he waited a bit and departed in February. Asked when he got the visa to Australia, he claimed that he got it in October. Asked why he didn’t come in October, he said the situation was bad with the 3,000 killed. It was put to him that he felt afraid and he could have left then. He said he felt that he could have been arrested at the airport.
Asked if he had mentioned this to the DIBP official at his interview, he said he wasn’t sure. When he was asked if this was the first time he had mentioned it, he claimed that he could have but it was a long time ago. He was asked if he was saying the officer didn’t place much importance on the fact that he had a visa and didn’t leave for four months as this struck the Tribunal as strange. He claimed that he did tell the officer about the 3,000 people killed. He was asked to confirm that he told the DIBP officer that his delay was because of the deaths and his political activity and he was afraid of being detained at the airport.
He claimed that he put this in his statement. He then said that he may not have mentioned the 3,000 people but that he did tell the officer that he was afraid of being picked up at the airport. It was put to him that he could tell the Tribunal post-hearing where on his interview tape that he had discussed this with the DIBP officer so the Tribunal could check it. He then said that he had told the officer this and he was asked to point this out post-hearing.
He was asked when he applied for protection after arriving in February 2016 and he said it was about July but wasn’t sure what year. He was asked again when he applied and he said it was July 2017. It was put to him that this was a very long delay and he was asked why he waited for 18 months given the level of fear he claimed to experience in Turkey. He claimed he intended to stay here for one year then return. There was a coup in July 2016 and thousands of Kurds were arrested and the environment got much worse. Then he began researching how he could stay and he started researching about getting a student visa.
There was a building at the town hall where he spoke to the agency about the student visa. It was put to him there was a coup in July 2016 and the situation was bad and Kurds were arrested, but he then applied for a student visa rather than protection. He claimed that he didn’t know he could apply for protection and he just wanted to extend his visa. He had finished university in Turkey. It was put to him that he was well-educated so it was strange that he never saw a lawyer of the Immigration Department about staying because of his political profile. He appeared to have done nothing about looking for options. He claimed he thought the political environment would improve and he could return. Asked why he thought that would be the case after a coup - he said things got worse and thousands were arrested.
Asked why he chose July 2017 to apply for protection, he claimed that after the coup he saw the student visa people and they were Turkish so he couldn’t talk to them about his concerns. They looked at his visa and said there was no rush to apply for a student visa. He was asked why he chose July 2017 to apply for protection, he claimed he was refused his student visa. He appealed but was afraid this would be rejected so applied for protection. It was put to him that he had delayed leaving Turkey despite having a valid visa, delayed applying in Australia until after his student visa was refused so there was a concern that he was just staying here for economic reasons. He said he had better conditions in [Country 1] and could have stayed here. He found it hard to find work on his bridging visa.
It was put to him that he had sent in photos and claimed to have been politically active since being in Australia. He agreed and said that he had been especially lately. He didn’t know many people when he arrived so wasn’t very active then. He was more active three or four months after he arrived in Australia. It was put to him that all the photos he had provided the Tribunal appeared to be after his student via was refused. The Tribunal was concerned that these were only because he had done them to establish a refugee profile. He said that he hadn’t and he had other photos but didn’t know their dates.
It was put to him that he had not provided any support letters and was asked if he was active on social media. He said there were excerpts from newspapers that he had provided. Asked if he had a social media presence, he said he uses [Social Media 1]. Asked if he was putting forward any social media evidence, he claimed that he did use social media and he would be sending that evidence in. He was told he should provide all evidence – photos and social media. He said his [Social Media 1] was active and he had it for quite a while but wasn’t sure when. It began before he came to Australia – he said it was open and the Tribunal could open it. He was told that he could provide it post-hearing as he would be given time.
Asked what political organisations he was a member of, he said he attended protests such as Newroz or Turkish political issues or anniversaries. Asked what organisations he was a member of in Australia, he claimed that it was a Kurdish organisation that was in [Suburb 1]. It was [Kurdish Organisation 1]. He was a member and had been from 2016. Asked if he had told the DIBP official he was a member he said he wasn’t asked this question.
Asked why he thought the Turkish government would know what he was doing in Australia, he claimed that the Turkey Internal Minister had broadcast a speech saying they knew everything that people outside Turkey were doing. There were people taking photos of them at meetings at demonstrations and people should consider this. He was asked to provide country information regarding this after the hearing. The Tribunal had no access to information that the Turkish government follows demonstrations against Turkey overseas and arrests people as a result, he said he would send live news about it.
A family from Sydney had been arrested in Gaziantep. It was put to him that it didn’t say they were arrested because of attending protests in Sydney and it wasn’t apparent why they were arrested. He said the family was a member of [Kurdish Organisation 1] and this was the reason why they were arrested. It was put to him that the information he had sent didn’t actually say much and he should provide some follow-up information such as the court result. He said the arrest was the example.
It was put to him that he had no profile in Australia. He said he just went to a few protests and wasn’t an organiser. He was asked why the Turkish authorities would care. He said he had gone to more than a few and the others arrested didn’t have a profile either and were arrested on return to Turkey.
He was told about s 424AA and it was put to him that during his 2018 interview with DIBP he was asked about his involvement with Kurdish groups in Australia, and in response to concerns that he hadn’t done much he said he knew there was a Kurdish group that organised picnics and things but he wasn’t involved and stayed away from these things and that at that stage he had attended one protest, about Afrin, which was at Sydney Town Hall the previous Saturday because it was close to where he was that day. He said that protests in Australia were meaningless and didn’t change a thing.
The concern was that he had said he was a member of [Kurdish Organisation 1] since 2016 but told DIBP that he wasn’t a member. He had also told the Tribunal that he was an active member of Kurdish groups and that he had attended at least three demonstrations prior to his DIBP interview but he told DIBP he had only attended one, the Saturday before his interview. The concern was that his claims about the level and timing of participation in Kurdish demonstrations in Australia were different between what he told DIBP and the Tribunal. The concern was that whatever he didn’t was not really reflective of any genuine Kurdish activism.
He claimed that he was referring to picnics that were meaningless activities, not protests. He did tell the DIBP officer that he rarely attended and he wasn’t very active. He had only joined one but he went every Saturday to the meetings from the end of 2016/start of 2017, and he joined demonstrations. He also said that he told the DIBP officer that he wasn’t getting any of the information about demonstrations because there was no social media content. Asked if he told the DIBP officer he joined the organisation in 2016 he said he didn’t as he believed he wasn’t asked, but he didn’t tell him. He said he was asked about the demonstrations and he told him. He had been going to the Saturday meetings regularly but didn’t think to tell the DIBP officer.
He said that things are getting worse in Turkey and yesterday a Kurdish person was killed on the basis of his race and attacks happened on the previous days and the HTP offices were raided in Marmaris. One person was killed in these raids. He was told that he could include this information post-hearing and explain how it applied to his personal circumstances.
It was put to him that he had provided a range of country information prior to the hearing and he was asked to tell the Tribunal which elements within those documents related to his claims and he stated that he would explain at the hearing. He was told that now was his chance to explain. He claimed that he would re-send the documents. He was told that he needed to point the Tribunal to the page and paragraph number that pertained to his case. He said he couldn’t recall them at the moment. He was told that a letter had been sent asking him to provide this information prior to the hearing and he said that he would provide it at the hearing.
He said that there was not much information about his student years because the organisation elements he was related to were in [District 2] and the building was burnt by the nationalists. He could have found documents at this place. It was put to him that the Tribunal was interested in photos and social media that may give the Tribunal confidence that he was actually active. These things could be found on the internet, on people’s devices, in photo albums and were independent of the building or the party president. He said that nobody shares these things on social media.
He was advised that he needed to address the range of concerns the Tribunal had raised. He was told that he would be given time for a written submission post-hearing, including those parts of the DIBP interview that had been referred to. If he could not provide these then this may raise questions about his delay in departing Turkey. His written statement made no mention of his fear following the deaths of 3,000 people. He said he couldn’t remember going into detail about the 3,000 people but he did remember talking about his fear of going through the airport.
Asked about his atheism claim, he said it wasn’t mentioned in his statement. Asked if he mentioned it to the DIBP officer at the interview he said he didn’t think so. He then said it may have been mentioned during the talk. Asked why he never mentioned it in his statement, he claimed that he didn’t see it as a primary reason. He was told that he could put in multiple reasons and he said he didn’t have a representative so it was an individual effort. He confirmed that he couldn’t recall whether he raised it at the DIBP interview. He was asked whether the rejection letter mentioned his claim of being an atheist he said it didn’t.
It was put to him that if there was no mention of it then perhaps he hadn’t raised it at interview. He believed that he probably didn’t mention it at interview then. Asked why he was only mentioning it now, he claimed that at the time he wasn’t very knowledgeable about these things or how to fully express himself. It was put to him that he hadn’t provided any country information that atheists were at risk of harm in Turkey as the Tribunal was not aware of any. He said that in his application he had written this in his protection visa application. Asked if he made a claim as a result of this, he said he didn’t have much information about it so he focused on the political.
Asked how anyone would know he was an atheist, he said all his friendship group would know. He had been an atheist since high school, and he was asked what serious harm he had suffered as a result of this. He claimed that he was forced to fast and go to mosque. Asked who forced him to do this, he said that people, family, the environment did. It was put to him that the Tribunal didn’t understand how they forced him, and he said it was a reason for attack. During Ramadan you can’t eat out or smoke. It was put to him that the member had been to Turkey several times, including during Ramadan and this was allowed. He claimed it depended where you were. You could in modern parts of Turkey. He said that he shouldn’t be made to move just because of this. It was put to him that the rules were that if he could move within Turkey to avoid persecution then he should.
He claimed that he shouldn’t have to leave his family and they were a religious family and he shouldn’t have to leave. He was [age] years old. It was put to him that if he was [age] and had different views to religion than his family then he should move. This was life. He claimed that he had been away from his family for 15 years. He said there were around three or four states where he could live comfortably. It was put to him that the measure for protection was whether he could subsist, not whether he could live comfortably. Asked again what serious harm he had experienced in Turkey because of his atheism, he claimed that his main claim was political. He was told that the Tribunal had to explore the claim as he had made it. He said he was not attacked but he couldn’t walk around and say he had no religion. He was asked to provide country information indicating that atheists were targeted.

He then said that just being an Alevi was enough as they were being targeted. It was put to him that he was not an Alevi and he needed to raise something relevant to his claim. He said that he raised this as an example. It was put to him that he had not previously raised this claim and he had only raised it after his application was refused and he was perhaps raising this now because he thought it may help his claim rather than because he actually was atheist or feared harm because of it. He said that he had mentioned this before and he said he wrote atheist in the section of his application. It was put to him that he actually wrote N/A. He claimed he had put down atheist and it was put to him the member had it in front of him and it said N/A. He said that he thought he had written atheist. He said he thought writing N/A meant he was saying no religion. It was put to him that he had said specifically that he had written atheist. He said he may have perceived N/A as atheist.
He claimed that after he left university and looking for jobs he was sifted out of government jobs because he was Kurdish. He was asked if this was the case why did he not apply for asylum in [Country 1] or in Australia as soon as he got here if he believed this was a real problem for him. He claimed that there was a period of resolvement when he came back from [Country 1]. This was why he researched going overseas. People weren’t being discriminated against during the period of resolvement.
Asked what degree he had, he said he had a [Discipline 1] degree but he could teach in [Discipline 1] high schools. It was put to him that [Discipline 1] was largely private sector. He said there was government involvement such as high schools or cultural areas. He said his aim was to become a teacher – asked if he had mentioned this previously, he said he hadn’t as the subject wasn’t raised. He was given additional time to provide the information he had been requested.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a work and holiday visa [in] February 2016, his application for a student visa was made on 30 January 2017, refused on 14 March 2017 and he sought review from the AAT on 4 April 2017. He applied for protection on 31 July 2017 and withdrew his AAT student visa review on 13 November 2017. I have sighted a copy of his passport and accept that Turkey is the applicant’s country of nationality.
The applicant claimed that if he returned to Turkey he would be detained and tortured by the Turkish authorities because he was a politically active Kurd and he would be killed by a government party member or supporter because he was an atheist. To the extent that it is relevant I have taken into account the September 2020 DFAT Report - Turkey.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The hearing was conducted from the applicant’s residence and a technical check had been conducted prior, the member could see and take into account the applicant’s body language, and the interpreter is bound by a code of conduct and I did not see or sense anyone else present in the same room as the interpreter. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated many of his claims, including the central claim that he was politically active in Turkey and would be perceived to be as a result of activities and interactions in Australia, in order to be granted a protection visa.
Kurdish Political Activism
While I accept that the applicant is ethnically Kurdish I do not accept that the applicant was, or would be perceived to have been a Kurdish activist when he lived in Turkey. There is no corroborating evidence of his alleged activities such photographic or social media evidence that he was an activist in Turkey. The lack of social media evidence is strange given the number of activities he claimed to have been part of over an extended period of time. I do not accept that this was because staff took all the photos which were kept in the DTP building that burnt down in September 2015.
It lacks credibility that over all the years he was allegedly active that neither he nor anyone else took a photo other than DTP staff. Neither do I accept that they did not take photos because they knew it (the party) was illegal. When it was put to him that the party was not illegal for the entire time he was allegedly active, he then said that they were cautious. Nor do I accept that the lack of social media activity was because it wasn’t very popular. Country information[1] indicates that there were 22.5 million Turkish Facebook users in 2010 which would indicate significant market penetration in a country of then 72.5 million in contrast to what the applicant claimed.
[1] ‘Turkey may ban Facebook’, Scoop World News, 10 October 2010.
His actions in asylum seeking countries are also not indicative of someone who was the focus of Turkish authorities’ attention for so many years for his activism. He claimed to have been attacked by Turkish nationalists in 2004, having his house raided tens of times by Turkish authorities between 2007-2012, his computer and books taken, and that he was detained two or three time by police and assaulted by the police while in custody. This would indicate that he was well-known to the Turkish authorities as an activist.
Yet he was able to get a Turkish passport and leave the country for [Country 1] without a problem. Once there he never applied for protection. I do not accept that he failed to do so because he believed the degree of interest the Turkish authorities showed in him was normal for Kurds. He did not explain how he arrived at this conclusion, nor is there any country information available to the Tribunal nor provided by the applicant that would indicate that this was normal.
He also claimed that he didn’t apply because there was a period of resolvement in Turkey when he returned. I take it that this refers to the ceasefire formally in place between the PKK and the Turkish government from April 2013 to July 2015. The applicant was in [Country 1] from September 2012 so this does not account for the seven months prior to this. Nor does it explain why the applicant has no pro-Kurdish social media profile while he was in [Country 1] – it is reasonable to believe that someone as committed to the Kurdish cause as the applicant would have been moved to make some type of public comment regarding the ceasefire while in [Country 1] that he could have evidenced as to his commitment to Kurdish activism.
His tardiness in applying for protection in Australia is further indication that he had no well-founded fear of serious harm in Turkey. The applicant claimed that he was arrested and detained for 24 hours in June 2015, the ceasefire formally ended in July 2015 and the applicant received an Australian visa in October 2015. Yet he didn’t leave Turkey until February 2016. I don’t accept that he delayed his departure because of the fear engendered by the killing of 3,000 Kurds by the Turkish authorities.
He had never mentioned this in his statement, nor did the Tribunal believe that he did during his DIBP interview. He claimed that he believed he had and he was given the chance to point out that section of the interview in which he told the delegate about this. Nothing was provided by the applicant post-hearing. Nor do I accept that he was waiting to hear about a job in [Country 2]. This not only relies entirely on his oral evidence, it does not explain why he was willing to stay in the face of such alleged personal danger or why he could not have come to Australia immediately and then travelled to [Country 2] if he got the job.
Then, once he was in Australia there was a further delay between his arrival in February 2016 and his lodging of a protection visa application in July 2017. I do not accept that he did not know about protection in Australia and he was given advice to apply for a student visa by some unnamed Turkish immigration agency in Sydney. Once again this relies on his oral testimony which I have found lacks credibility. I also do not accept that the tertiary-educated applicant could not have sought out a migration agent or enquired with the Department about protection options if he did have the fear of serious harm in Turkey that he claimed.
He also stated that he was scared after the July 2016 coup and that thousands of Kurds had been arrested following it and yet he still didn’t apply for a year following this. Given his inability to apply for protection in [Country 1], his delay in leaving Turkey despite having a valid Australian visa and his subsequent delay in applying for protection in Australia, I am satisfied that his decision to apply for a protection visa in July 2017 was motivated by a general desire to stay in Australia and prompted by his student visa refusal in March 2017 rather than any fear of serious harm in Turkey.
Because I do not accept that he was a Kurdish activist, I also do not accept that he was ever detained or beaten by the Turkish security authorities on any occasion while he was in Turkey. Nor do I accept that he experienced any house raids or had any books or his computer taken by the Turkish authorities.
I have taken into account the photos he provided in support of his claim to have been active in Turkey but lend them little weight. One he claimed was a meeting of DTP. There is no date, he has not indicated where he is in the photo and it appears to be around 20 people around a number of tables that looks like it was taken in a [location]. The only identifying feature was a banner in the background with the name ‘[redacted]’ – an internet search revealed this to be a [specified] company. There is nothing in the photo that suggests, let alone indicates the group is gathered there for any political purpose.
I have also taken into account the photo he claims is of him at Newroz in Turkey however I also lend this little weight as there are no identifying features as to where it was taken. It is simply a photo of the applicant in the company of another man in what appears to be a group environment but with virtually nothing else that would indicate what the context is or who else was there.
I have also taken into account his claim to have been politically active in support of Kurdish nationalism once in Australia however I lend his actions little weight in determining the truthfulness of his actions and rather I find them deliberately undertaken to create a refugee profile. I am also satisfied that his actions are so anonymous that they will not be known by the Turkish authorities.
I have taken into account a letter and a statutory declaration he has provided from members of [Kurdish Organisation 2] and the Co-chair of [Kurdish Organisation 3] that attest to his experience of, and prospects for harm in Turkey. I lend them little weight in determining that he was politically active in Turkey. Both are vague and based on unknown and unverifiable sources. The first states their opinion to be based on ‘enquiries from reliable sources’ and the second says that the author is informed of the persecution the applicant was subject to without saying how he became aware of it. I place much greater weight on the reasons already given for finding the applicant’s claims to have been politically active in Turkey to have been fabricated.
I also note that the statutory declaration also noted the author was well aware that members of [Kurdish Organisation 2] upon travel to Turkey. He provided no such examples. The applicant referred to a family detained in Gaziantep however there is no indication as to why they were detained, what became of them, or their relationship (if any) to any NSW Kurdish group. I also note that neither the letter nor the statutory declaration made any mention of this family.
I accept based on the letters and photographs provided that the applicant has attended the associations’ premises for Kurdish gatherings. I also accept that the applicant has attended pro-Kurdish protests in Australia on occasion. He was asked to provide evidence of his attendance and he did so post-hearing. The photos are a combination of private photos of his attendance at the Kurdish centre in a social setting and his attendance at some protests although he is only visible in three of them. He has dated these protest photos post-facto between April 2017 and March 2020.
I note that they are either private photos or ones that appear in [Publication 1] and [Publication 2]. He is not named in any of them. The protests themselves are very small, the applicant is not identified in any except what appears to be private photos (and perhaps selfies) and he doesn’t appear in either of the media stories. I also note that [Publication 1] is often blocked in Turkey[2] so it may never even have been available to be seen in Turkey and even if it was the protests were very small and unlikely to attract the attention of Turkish authorities.
[2] ‘[Source deleted].
Even if they were to look at it the applicant is not identified so I am not satisfied that he could be identified even if they wished to and, given he has no profile in Turkey there is no reason why he would be on any security agencies’ radar. I have taken into account his claim that a Turkish minister claimed that those who protested overseas would be targeted in Turkey. The Tribunal was not aware of this and the applicant was given the opportunity to provide country information in support of this post-hearing however failed to do so. I have also taken into account his claim that people took photos and the Turkish government would know – this again relies on his oral testimony which I have found lacks credibility.
He also claimed that he could be identified by his social media posts and that he had started a [Social Media 1] account - he was given the opportunity to provide evidence of this post-hearing however he again failed to do so.
I do not accept that the applicant was denied employment because he was Kurdish. I have taken into account country information[3] that indicates there is official and some societal discrimination against Kurds, that they were more likely to work in the public sector at the sub-national level and that they were under-represented in senior positions. I do not accept that the applicant has been denied employment because of his ethnicity as it relies on his oral testimony which I have found lacks credibility.
[3] DFAT Country Information Report – Turkey, pp 21-2.
The applicant has a tertiary qualification in [Discipline 1]. The private sector accounts for a large proportion of this sector and he would therefore have no problems in being employed there and, given he was looking at sub-national public sector work, available country information indicates that he could also compete for these jobs. His willingness to return to Turkey from [Country 1] is also supportive of his belief that he could gain employment in Turkey.
Atheism
I do not accept that the applicant is an atheist. To begin with, it would be virtually impossible to tell the difference between an atheist and a non-practicing member of a religious faith. While I accept that the applicant wrote N/A on his protection visa application on the section that said religion, I also note that he never raised atheism as a claim in his protection visa application nor during his DIBP interview (he was given the opportunity post-hearing to show the Tribunal where he made the claim but never did). The claim was only put forward after his protection visa application based on his Kurdish activism claim was rejected, which makes the Tribunal suspicious at to the motivation for doing so.
He also provided no country information that atheists or non-practising Muslims were persecuted in Turkey. The only information available to the Tribunal indicates that atheists are growing in size in Turkey and that atheist associations operate openly in Turkey.[4] Because of this I do not accept that the applicant could not profess his atheism openly in Turkey or that there is a real chance that being a non-practising Muslim would result in any risk of serious harm.
[4] Atheism grows in Turkey as Recep Tayyip Erdogan urges Islam | Europe | News and current affairs from around the continent | DW | 09.01.2019, accessed 18 August 2021.
I also do not accept that he was unable to smoke and that he would be made to fast during Ramadan. General country information such as travel guides[5], as well as the member’s personal experience that neither is true. Although the applicant claimed it was only not enforced in a small number of modern areas of Turkey. I do not accept this to be the case and the applicant provided no evidence to support this claim. I also note that the applicant has qualifications in [Discipline 1] and this is an employment sector in Turkey that is highly unlikely to require either a ban on smoking or fasting during Ramadan either now or in the reasonably foreseeable future.
Other Issues
[5] See for example What it's really like to visit Turkey during Ramadan — Walk My World and Ramadan in Turkey - Common questions answered - from blog - Turkey Homes, accessed 23 August 2021.
While I accept that the applicant’s family relocated from Van due to the security situation at some stage, I do not accept that his parents were accused of aiding the PKK, that soldiers raided their village and villagers were tortured and had their crops burnt, that his father was interrogated or that when they returned for a visit in 2004 they were stopped and questioned in a threatening manner by Turkish soldiers.
Not only do these claims rely solely on the applicant’s oral testimony without further corroboration, they also tell the story of a Turkish military who were abusive to his family and himself. The Turkish military had also been involved in a protracted counter-insurgency campaign against Kurdish nationalists in the years before the applicant did his conscription. It seems strange therefore that he voluntarily returned to Turkey to undertake conscription with the same military who allegedly mistreated his family and sought to crush Kurdish nationalism when he could have applied for asylum in [Country 1] on this basis.
I do not accept that he was okay with this because of the ‘period of resolvement’ given this still didn’t erase the actions of the same Turkish military whom he joined. Nor do I accept that he thought he could buy his way out of the service given it I reasonable to believe that he would have sorted this put before he returned to Turkey from [Country 1] and if he was unable to do so then he could have applied for asylum.
I also do not accept that the applicant’s weapon was withdrawn from him because he was accused of being psychologically unstable. He had never mentioned this previously and, although he claimed that he mentioned it in his DIBP interview he was given the opportunity post-hearing to provide the Tribunal with the section where he said this, however no such indication was provided post-hearing. It is entirely possible that he may have been made to perform tasks that he considered menial however as a recruit in the military for six months I am satisfied that tasks he may have considered menial were just the types of non-discriminatory tasks a short-term conscript would be made to carry out.

The applicant also provided a range of general country information prior to the hearing. He was asked in a letter prior to the hearing what elements pertained to his claim and he advised in reply that he would indicate the elements at the hearing. At the hearing he claimed that he couldn’t recall the relevant parts. I have taken them into account but lend them little weight because they are very general in nature and the applicant hasn’t been able to indicate their relevance to his circumstances despite being given every opportunity to do so.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever politically active in Turkey, that he is known to have attended pro-Kurdish demonstrations in Australia, that he really is or would be perceived to be a pro-Kurdish political activist, or that he is an atheist or would be targeted for being a non-practising Muslim, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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 4083

23 August 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing