1813837 (Refugee)

1813837 (Refugee) [2021] AATA 4181 (17 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1813837
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Rodger Shanahan
DATE:17 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 September 2021 at 5:43pm
CATCHWORDS
REFUGEE – protection visa – Turkey – ethnicity, religion and political opinion – Alevi Kurdish nationalist – discrimination, threats and attacks during education and compulsory military service – detention, interrogation, torture and monitoring – cultural and political activities in Australia – mental health – credibility – unreliable witness and many fabricated claims – low level of political activity in home country – little supporting evidence provided, including fraudulent documents – worked, obtained passport and departed without issue – voluntary returns – delay in applying for protection – applied after application for skilled visa refused on character grounds – political activity in Australia undertaken to boost claim after protection visa refused – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 424A
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 dependants.
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 20 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 17 August 2016.
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:
“Statement of [the applicant]
My name is [the applicant]. I was born in Istanbul city of Turkey on [Date]. I am the [child] of an Alevi – Kurdish family with 4 children. I arrived in Australia [in] February 2009 with student visa which was valid for one year. I extended my student visa as I did further study. I am now on bridging visa A because my application for Subclass 485 visa has recently been refused by Migration Refugee Tribunal. I am scared to return to Turkey because of my political opinion, ethnic identity (Kurdish) and my Alevi faith. The followings are the reason for my fear of being seriously harmed.
Family Background
My father migrated from [Village 1] of [District 1], Sivas to Istanbul before I was born. My father got retired about 10 years ago and has been living in Istanbul with my mother and my [sister]. My mother was born in [Village 2] of [District 2], Erzincan. My mother migrated from Erzincan to Istanbul with my father after marriage. My mother is also retired after her service at my uncles business. My sister [Ms A] lives with my parents because of her health problem. My other two sister [Ms B] and [Ms C] are living in Turkey with their husband and children.
Education in Turkey
I was born in Istanbul where I completed primary, secondary and high school education. After high school I attended [University 1] and completed a two years associate program and was awarded the title of “[Job skill/role]”. I started working after my study. While working I got enrolled Bachelor of [Subject 1] Degree by correspondence at [University 2] and graduated [in] September 2007.
I worked as a “[Job title]” between December 2002 and November 2004 at [Company 1] and later worked as a “Senior [Job title]” between November 2004 and March 2008 at [Company 2].
In April 2008, my compulsory military service was due and I was unable to postpone my military service. I had to go to military service despite the fact I didn’t want to. I experienced severe form of discrimination in the Army. Following my 5 months military service I returned to Istanbul in September 2008. After the military service I worked as a “Senior [Job title]” at [Company 3] between September 2008 and January 2009.
I decided to do further study in English and applied for a student visa from Australia which was granted (subclass 570 ELICOS Sector Student Visa) on 16^th of January 2009 and entered Australia [in] February 2009.
My political involvement in Turkey
I was raised within a politically active family and relatives. I started attending political and cultural activities since my young age. My father always wanted me and my siblings to be aware of our ethnic identity. He was warning me to be careful when I was teenager because the authorities were mistreating politically active Kurds. The treatment was worse for Alevi Kurds.
When I was in primary school I was scared to say that I was an Alevi Kurd. I was hiding my ethnic identity and my Alevi faith. I saw other student being isolated and degraded because of their broken Turkish. When I was in secondary school I started question why we, Alevi Kurds, are were being discriminated and treated unfairly in the country. I started feeling offended by statements of some teachers regarding Alevis and or Kurds. I was telling my father what I was experiencing at school however my father was telling that I had to ignore them in order to continue my study. At the same time he was encouraging me to read and understand our identity and culture. We had range of books about Alevism and Kurds at home. He taught me Kurdish but I couldn’t improve it in later years.
In high school my political knowledge and awareness of Kurdish identity further improved. I had friends with similar political opinion, faith and ethnic identity. We were discussing political issues between us. We were meeting outside school hours at our homes to discuss politics as well as listening Alevi and Kurdish music. There was severe oppression on Kurds mid 1990s and many Kurds were forced to leave their villages and migrate to cities in western Turkey. I heard horrible stories from my friends reading their experiences with the security forces in their villages.
I started threats from ultra-nationalist because I was mostly with Kurdish group and they all knew that we were discussing pro-Kurdish political issues between us. We were ignoring their insults and discriminations as the consequences would be serious if we responded them. I was finding hard to accept when some teacher were ignoring Kurds and insulting them. One day I attempted to say that not all Kurds were supporting PKK. My teacher yelled at me and degraded me in the class in front of 40 students.
After high school I was unable to secure a university course and had two years time to prepare university exams and attended political and cultural activities organised by People’ Democracy Party (HADEP) or Alevi Organisations. I started attending “[Organisation 1]” (an Alevi Organisation) in [Suburb]/Istanbul, where I was meeting my friends and discussing political issues concerning Alevism and Kurdish cause. I was mature enough to express my political opinion in certain contexts. I attended May Day and Newroz celebrations almost every year I was in Istanbul from 2000 until I left Turkey in 2009.
I was accepted in [Subject 2] Course at [University 1] in 2000. I left Istanbul and staying in [Town] campus of Isparta. [Town] was a small conservative Turkish town. I stayed at university campus for a few weeks however I didn’t feel safe there. I was approached by “Ulkucu” (ultra-nationalist group) and threated me. They said there was no place for “traitor”, by meaning Kurds. There was another group who were fundamentalist. I decided to rent a unit with another Kurdish friend who was also scared in the campus dormitory like me. My flat-mate [Mr D] was from Mardin and his mother was unable to speak Turkish. He was calling his mother and speaking to her in Kurdish. One day in or around February 2001 a neighbour heard him speaking in Kurdish. A middle age man knocked the door and started swearing at us. He was saying “You must speak Turkish. This is Turkey. If you don’t like f… off” We were both shocked and scared. After this incident people in the building were looking at us in strange way. We later heard the same person accused pour our landlord to rent his unit to “terrorist”.
In later months we started receiving threats from nationalist students. They were swearing at us and staring in a threatening manner. I finished the first year without having any serious problem. When we returned to [Town] in September 2001 after summer holiday the level of threat increased. We started receiving similar treatment within the town as well. In April 2002 I was attacked by a 5 ultra-nationalists in the street. I was alone and I was unable to defend myself. They punched and kicked me and left me there with bruises. Someone helped me to get up after a while as I was feeling dizzy. He took me to police station. I told police that I was bashed by 5 ultra-nationalists who were unknown to me. Police officer asked how I knew they were ultra-nationalists I they were unknown to me. I said they were swearing at me and calling me “terrorist”. Police asked: “Are you a terrorist?” I was scared to say anything else because I would have more serious problem with police. I said: “Don’t worry” and walked out. I saw police watching me while I was walking away from the station. After this incident I was scared to go out in the dark and always having someone with me until I finish my study in June 2002. When I was returning the keys to the landlord he said; “I am glad you are returning home safely without being harmed” I asked him what he meant by saying that. He told he was also threatened and question about us.
I was unable to attend a few exams because I was fearful after the bashing. I failed from 2 subjects and I had to return to [Town] just to attend my exams. I was staying in Istanbul after June 2002 and travelled to [Town] twice to sit my exams. I didn’t stay there and return to Istanbul on the same day in the afternoon. I passed my exams and graduated in February 2003.
I found a job as [Job title] in December 2002 in Istanbul. I worked with this employer until 2004. I was living with my parents and participating in political and cultural activities in Istanbul. I attended DEHAP office once in early 2003 soon before I was banned in March. Later on in the same year I started attending Democratic Society Party (DEHAP) office on regular basis. I was seeing my friends there on the weekends. I was attending activities organised by the party. I was detained by police in our suburb soon later I left home to meet my friends and attend Newroz celebrations. I was wearing scarf symbolising Kurdish flag (Yellow, Red & Green). I was held in detention for 8 hours and interrogated if I had any link with any illegal organisation. I was assaulted by being punched while I was being interrogated. I was released in the evening around 6-7:00 PM. They asked me to sign a statement. When I asked what it was they said “It is the evidence that we treated you well here”
My friends saw my parents at the celebrations and asked them about me. My father was concerned as he couldn’t see me at the celebrations. I told him what had happened in the evening.
In November 2005 Democracy Society Party (DTP) took over from DEHAP. I was an active member of DTP until I left Turkey in January 2009. The party was banned from politics later in the same year. I became an active member of the party over the years. I was supporting the party by giving donations and doing [a certain] job free of charge. I was often called to the party office [to do jobs]. I was sometimes helping them to prepare written materials for the activities to be organised.
Police raided my family home in May 2006 and searched our home. They came to our home around 4:00 AM in the morning. They were extremely harsh towards my parents and siblings. They took me to police station for further interrogation. I was asked many questions regarding my political activities. They alleged that I was involved in separatist/terrorist acts which I denied. I was mistreated by being assaulted on and off during the interrogation. They asked me several question about other people in DTP. I told them I knew many people in DTP but I had not come across anyone involving illegal activities. My statement made them very angry. After 1-2 hours interrogation they stopped asking questions and left the room. I was taken back to my cell by other two police officers. I was kept in detention for another 3 hours before they released me.
I was spending more time during 2007 General elections as the party officials asked me to assist them with the preparation of their election materials. After the election in late September 2007 I was taken by police in the street around 9:00 PM. They kept me in detention for about 20 hours. Police knew what I was doing for DTP. I suspected they managed to get information from someone from the party. I was badly beaten because I denied all their allegations.
After this detention I noticed that I was being followed and monitored by some people. This continued on and off for about 3 months. I was scared to attend the party office for about 8-9 months until I went to military service in April 2008.
In the army I received the worst ever mistreatment. I was subjected to capital punishment and insults with no reason. I was defenceless and had no option than putting up with their ongoing ill treatment. I decided to leave the country after my military service. I finished military service in September 2008.
I started to search the way of leaving the country and found out I would get long term student visa. I found an agent who assisted me with my visa application. My visa was granted in January. I left the country in late January 2009 and arrived [in] February.
After I arrived in Australia I did number of courses and intending to get my permanent residency under skilled migration.
Education in Australia
I studied a general English preparation course for 40 weeks until 6^th November 2009 and completed the IELTS preparation course, after this course I applied an onshore aa subclass 573 Higher Education sector visa and this visa granted on 06 January 2010. On this visa I studied an intermediate level IELTS Preparation course between 11^th January 2010 and 5^th of February to improve my English Language skills. I studied my master degree at [University 3] for one term and then I received a scholarship from [University 4]. I made another subclass 573 Higher Education Sector student visa on 7^th March 2012 to continue my education at [University 4], which was granted on 30^th of March 2012. I successfully completed my Master of [Subject 2] degree with [University 4] on 28^th June 2013. I was also studied Graduate Diploma in [Subject 1] with [Institution] between 17^th March 2014 and 24^th October 2014 and I successfully completed my course.
I had a serious de facto relationship between 2009 and 2010 in Australia. My girlfriend fell pregnant and did not tell me that for almost four weeks. As being an international student who was focusing on my studies I was not ready to become a father. I shared my feelings and opinion with my girlfriend. At first my girlfriend understood and accepted my feelings. She later on changed her opinion and she said that she wants to give birth. The couple began having regular arguments regarding the situation. On the day the incident took place I came home from school. My girlfriend was home with her friend. Soon they started having a fight over the same topic. They started yelling at me walked towards mine making threatening comments. I lost control of myself and I pushed my girlfriend away and left at home. My girlfriend and her friend went to the police station and reported the incident soon after I left. I came back home and after a short while police came home and taken to me the police station. I stayed in police custody overnight and was released with an AVO. I was also told by the police that I will be having a court case within a month time. In the court I pleaded guilty. I stated that I was very upset and sorry with what I had caused. The court made an order [in] November 2010 finding me guilty of the offence of assault occasioning actual bodily harm. He was then released on a good behaviour bond for 18 months. During the bond period of 18 months and even after that until today I did not have any other problems.
I was applied for a skill assessment for subclass 485 visa application with [Skills assessment body] on 10^th of March 2015. I have received a positive skills assessment from the [body] which stated that my [work-related] skills are suitable for migration under the occupation “[Occupation]” (ANZSCO [Code]). I took an IELTS test on 14^th February 2015 in which I received overall band score of 6.0, than I made a visa application on 13^th March 2015 for subclass 485 visa, when I lodged the application, I answered “no” to all character questions, because of this reason my visa application was refused based on the grounds that the visa applicant did not meet sub-clause 485.216(1) of the regulations which requires PIC 4020 to be satisfied by the visa applicant.
My political involvement in Australia and reason for late application
I have been involved in political and cultural activities since I arrived in Australia. I regularly attended [Organisation 2] and the activities they organised or supported.
I return to Turkey to visit my parents in January 2013 and stayed with my parents for two months because my parents insisted to see me. I entered and left the country with no problem however police came and asked my parents about me. My parents told them I was living in Australia and returned to Turkey to visit them. They left without saying anything else. I was highly concerned and didn’t visit my parents since that date. In the mean time I focused on my study to get my skilled migration visa. I was confident I would get my visa however my visa application was refused because I didn’t disclose my conviction which was not intentional. I explained it at the AAT hearing.
After my visa application was refused I started highly concerned about my return to Turkey. I was scared I would be seriously harmed if I continued my political involvement with pro-Kurdish political party and groups in Turkey. I therefore decided to seek protection from Australian government.
I will be seriously harmed if I return to Turkey as I will continue defending the rights and freedom of Kurds. My political activities will be treated as terrorism by the authorities as happened in the past. Being an educated person I can’t remain silent to this issue. I am scared I would be arrested and mistreated by police and/or would be seriously harmed by racist ultra-nationalists. Relocating to another part of the country would not be a solution for me because I wouldn’t refrain from involving in political wherever I live in Turkey.
I would appreciate if I am given an opportunity to give more details about claim, especially my fear to return to Turkey. I declare that the content of my claim is true and correct to the best of my knowledge and recollection.
Yours sincerely,
[the applicant]
17.08.2016”
AAT Hearing

The applicant was asked whether he knew everything in his protection visa application and that it was true and correct and he agreed that it was and didn’t wish to change anything. The applicant was at his solicitor’s office. He claimed that if he returned to Turkey he could be tortured or attacked because the Turkish government were extreme nationalists – he could be detained without limit. This happened to others and they subsequently went missing. He was an active Kurdish person and he was also Alevi. He cannot hide his political opinion and will openly express this – he wants independence for the Kurdish people and his struggle for this will never end. He had no other claims.
He said that in 2003 he was going to Nowruz and had a yellow, red and green scarf and for this he was taken into custody by the police. They kept him there for eight hours and tortured him. They would ask him questions about who he was working for and then hit him and throttled him. They asked if he was with the PKK. Asked if he had any medical reports or photos of his injuries that could support this claim, he said that they had to sign an undertaking saying they had not been tortured. They were told that if they complained about this, they threatened to torture him more. He was asked again if he had any photos or medical reports of the injuries and he said that there was no report and the pictures were taken by the party.
Asked where they were now, he claimed that they were in the party’s archives. He was asked if he had tried to get the photos given they were taken 18 years ago, and he said that the party was shut and they couldn’t access them any more. The party offices had been destroyed. He was asked if the party had put these online or highlighted them in any way so the Tribunal could have confidence that he had experienced torture. He said there were no smart phones at this time so they couldn’t be shared with media. They were also not trying to leave any leads for the police.
The party did make sure the European Human Rights knew about this. He was asked if there was a report from the European Human Rights Commission about their treatment and he claimed that a report was being submitted about what was being done to him and his friends. He was asked if he had a copy of that report. He said they weren’t given one and wouldn’t be given one. Asked if he had sought a copy from the European Human Rights Commission. He said he hadn’t tried because it was a long time ago and he didn’t know the name or number of the report. He was asked why he hadn’t tried four and a half years ago when he submitted his protection application he said that he didn’t think he could obtain a copy because the party had been talking with the Commission not him.
Asked if he had told his lawyer about this and had tried to get him to obtain it. He said that he told his lawyer but they never thought about getting it. When asked the lawyer said he hadn’t tried to obtain a copy because it was outside of his jurisdiction and he would have to engage people from overseas to access it. The applicant was asked if he had ever mentioned the existence of this report to DIBP at his interview and he said that he was never asked. It was put to him that he didn’t need to be asked, and he said he was told only to answer questions he was asked and didn’t volunteer information. Asked if he had even included information regarding the existence of this report in any of his written submissions. He said he hadn’t because he had only mentioned what happened to him. Asked if he had mentioned being tortured in 2003 in his submission he said he had. It was put to him that in his six-page submission he had never mentioned the European report and the Tribunal was concerned this was because no such report existed.
He said that he made the application based on the questions he was asked – he didn’t think to include this. He didn’t have a representative at this stage. He agreed that he wrote a submission. It was put to him that he mentioned in his six-page submission that he did primary school, what high school he went to and what job he did but he made no mention of the European report regarding his alleged torture. He said he did not have a solicitor at the time he wrote this. The hearing was his opportunity to talk more broadly about his claim which was what he was doing.
In May 2006 the police came to his door about 4 am and searched the house and told them not to say anything to anyone else. He was handcuffed and taken for questioning and his father was handcuffed at his home. The applicant was kept at the police station for two hours and questioned constantly about whether he was a terrorist and hit whenever he answered. The accused him of being with DTP and they knew what he was doing and it was illegal. Asked if he required any medical treatment or any photos showing injuries he received as a result of being hit. He said he couldn’t get any photos because there were no smartphones or the like then. They only told the party and the party kept the files.
It was put to him that before smart phones one just took a photo with a camera, scanned it and kept it on a computer. He said that if he had any of this evidence on his computers and the police found it he could go to jail because of it. He thought the party kept these details as it was too dangerous at home. It was put to him that he could have scanned it, then sent it as an attachment to a fake email address which meant it wouldn’t be stored as a photo on his computer – the Tribunal was surprised the party hadn’t told him of this simple security procedure.
He said this made sense but back then he didn’t have technology like scanners but at the time he didn’t need this technology. He agreed that he was released after a few hours after signing an agreement that he was not harmed. In 2007 he was active in the elections and two months after the election he was walking down the street and taken by the police – he was questioned more intensely and kept there for 20 hours. The questions were about the DTP and he was told they were all terrorists and asked about links with the PKK. They said again the party was a bed for terrorists.
They told him that they would finish him off and wouldn’t let him live and knew what he was doing. They would ask a question then hit him. The torture they did was meaningless – they were stripped, beaten and they used a baton. They told the police that what they were doing was legal. Asked if there were any photos or medical reports as a result of the torture that he could provide, he said he was very scared and he was scared to go the party building from then on but he informed th party via telephone and they processed this information. It was put to him that this must have been very traumatic and he said that it was. He was asked if he had sought psychological/psychiatric help and he said that he did after the last event. Asked if he had a record of this, he said that he believed he had a report sent to his old email address. He had cancelled his old email address but said he would try to retrieve it.
Asked if he had gone to any psychologist in Australia, he said that he did when he first came. He said there should be a record. Asked who he saw and how many times, he claimed that he went four times to someone called [Ms E]. This was in 2009/10. Asked if he was referred to this person by his GP and he said that he didn’t have medicare and went straight to the psychologist and paid her. It was put to him that he was a student and had health insurance so could have gone to the GP.
He claimed that in Turkey they don’t go to a GP first and go to a psychologist direct so he did that here. Asked if he had mentioned this previously about going to the psychologist for torture he said that he wasn’t asked. He did tell [Ms E] about what happened to him but he was not asked about it. It was put to him that there had been no previous mention of his psych appointments in his written or oral statements nor was there any report submitted as part of his application or subsequently and he was asked why this was the case. He said he didn’t go there for his problems with the DTP but he went there for personal and sexual problems.
He was then asked if he hadn’t mentioned his claims to the psychologist but he did tell her about the torture. He was told the Tribunal had no reports before it and he was asked if he had had any other mental health treatment in Australia that mentioned this torture claim and he said there was a free consultation line he could use and he did mention this using an interpreter – it was in 2010 when he was seeing [Ms E] but [Organisation 2] provided him with the number. Asked if he had any mental health treatment reports showing he was dealing with torture trauma since then, he claimed that he had [Ms E]’s report, a grandfather figure at [Organisation 2]. He was asked for medical reports and he said he had [Ms E’s] reports but didn’t have any other medical reports. He was asked to provide the reports from [Ms E] and was told that he could send reports from the [organisation] but if they weren’t medically qualified they were unlikely to carry much weight.
The applicant said he distanced himself from the party building and believed he was being followed for three months. He based this on seeing a car and two people wherever he went. It was a foreign car with two people outside the car smoking and they would see him on busses and transport. It was put to him that they can’t have been very good at surveillance if someone untrained such as himself saw them everywhere he went. He said they weren’t trying to be discrete but were trying to psychologically pressure him and to let him know they were pressuring him. It was put to him that he was obviously of great interest to the Turkish security authorities if he had been detained and tortured three times and followed by two people for three months. He said they didn’t know what the security authorities were thinking.
He said he didn’t know if he was a priority but the custody and the following was psychological pressure. It was Orwellian. Things he did such as speaking his language, wearing the scarf and going to the party all brought him to attention. He was asked if he was fluent in Kurdish given he said he spoke his language, and he claimed that he wasn’t fluent but spoke at a basic level. But even if he said hullo in Kurdish to someone that would be enough. His parents’ mother tongue was Kurdish and their Turkish limited.
It was put to him that he must have spoken Kurdish at home then. He claimed that they spoke Kurdish to each other but because of the pressures they felt the parents didn’t teach them Kurdish and they learnt Turkish at school. The Tribunal said it was very strange that he didn’t know Kurdish fluently given many people spoke a second language at home, and he claimed that his parents were strident Kurdish nationalists as was he. As a consequence it was very strange that his parents didn’t teach him Kurdish at home, particularly given they didn’t speak very good Turkish.
He said that even the leader of the HDP (who is jailed) and Abdullah Ocalan don’t have good Turkish. It was put to him that the Tribunal was interested in him – it was put to him that he allegedly grew up in a Kurdish nationalist household where his parents didn’t have good Turkish, and he was a strong Kurdish nationalist with close links to [Organisation 1] for the 12 years he had been in Australia yet he only spoke basic Kurdish. This seemed very unusual for the Kurdish nationalist background he claimed to possess.
He claimed that there were no Kurdish lessons in Turkey and they could only speak it at home. He wasn’t allowed to speak it outside home. He claimed the Tribunal was being unfair because Kurdish was outlawed in Turkey so the real culprit was the Turkish government. It was put to him that he had also been in Australia for 12 years and it didn’t seem that he had picked up much Kurdish – he said that they spoke Turkish and didn’t give any Kurdish lessons. Asked if they knew of people who taught Kurdish so he could have learnt from them, he said there were different dialects and he couldn’t find anyone who could speak his Kermaji dialect.
It was put to him that this was the most common, and he said that there were lessons in Surani but no Kermanji speakers. It was put to him that in the member’s experience Kermanji interpreters were normally the easiest to source for the Tribunal. He was asked to provide a letter from the [organisation] attesting to the fact that there was no possibility of getting lessons in the Kermanji dialect in Sydney. The advisor said that this would need a letter from the Tribunal – the Tribunal advised him that they had provided the Tribunal with unsolicited letters from the [organisation] as part of the application. The Tribunal was asking them to provide additional information from that source and if they couldn’t or wouldn’t do this then they needed to explain that in the post-hearing submission.
Asked what happened to him after he was followed, he said he distanced himself from all this and went to the military and wanted everything to die down. It was compulsory. He said they were discriminated against in the military – he thought everyone would be treated equally. He would be made to clean the toilets and be screamed at. It was put to him that when one joined the army one got yelled at and cleaned toilets. The member had been in the army for 26 years and this was what happened.
He said the other private soldiers were told to defecate over the toilets and then the Kurdish soldiers were told to clean it up to put them down. He was asked if Kurdish soldiers were yelled at but non-Kurdish soldiers weren’t and he agreed this was the case. It was put to him that this was hard to believe as recruit instructors yelled at recruits – this was part of training. He said they were hit with their boots and they were put down and they were yelled at in the normal way that others were yelled at.
Against all these odds he finished the military and this had a big psychological effect and this meant he wanted to leave and he did his research and came to Australia as a student. He got his passport in February 2009 after the military. Asked whether, given his political profile at this time, whether he had any problems in getting a passport and he said that he didn’t. He had no problems in leaving the country as he had no court order against him.
He was asked why he would be given a passport if he was believed to be a security threat as he would be better controlled if he was inside the country. Country information indicated that it could be difficult to get travel documents if someone was of security interest to the authorities and he was asked how he got his passport so easily given his alleged profile. He claimed that he was an ordinary member in DTP and not senior and there was no court order. There was no record of him being in custody as they were illegal detentions.
He came to Australia in 2009. Asked when he applied for protection, he said it was 2016. Asked why there was a seven-year delay in applying for protection, he claimed that he intended to return when the situation was better and he was hoping for the ‘Peace period’ to take hold. Asked what this was, he claimed that it was a peace resolution between the government (AKP) and HDP. He believed it began in 2010 and finished in 2015. He said in these years there were still problems between his party and the government at this time.
He was asked whether there were any problems with him because of his profile and he said that he waited for there to be a resolution. He said there were still problems for him between 2010-2015 and he was asked whether he was unable to go back to Turkey. He said that he did return in 2013. Asked why he did this, he claimed that his mother was crying and he had an Australian visa. He went for a few months and he thought there had been three years since the start of the period of resolvement and he wanted to go there and to see if things had changed. He knew he could return to Australia with his visa. He returned after two months and regretted his visit as there was a raid on his home after he got back to Australia.
It was put to him that the Tribunal found it hard to believe that with his alleged political profile and his alleged treatment in the military that he would voluntarily return to Turkey. He said that there was no court order in his name and that people came to his house and asked for him. They sent documents to his home address. He knew it was strange that they were detained for no reason. He said that the documents were sent to his house in 2019.
Asked whether anything happened to him when he was at his parents’ house for two months he said that nothing did as he stayed at home the whole time. The police came around one month after he returned to Australia. He returned in January, February or March 2013. When they came to his house they asked for the applicant and they told them he had returned. He was asked if this made him scared and he said it did. Asked whether he still wished to return to Turkey at this stage, he claimed that he wanted the period of resolution to be finalised and peace to happen. He believed it would be.
It was put to him that he had been detained and tortured three times, voluntarily returned to Turkey in 2013 and in a city of 19 million people (the applicant had mentioned Istanbul was a city of 19 million people previously) the police had singled out his house to visit within a month of him returning to Australia. The Tribunal found this chain of events suspicious as the police turned up just after he left. He said he was saying what happened. It was put to him that given these events that he had been singled out by the police after these years and after his treatment by them he must have been scared and was asked why he didn’t apply for protection after the police visit to his parents’ house.
He claimed that the period of resolvement had started and he wanted to be a part of this and of an independent Kurdistan and HDP was striving for. They wanted to get parliamentary representation with 10 per cent of the vote. In 2016 there was a coup. He was told to focus on 2013 and the torture he had received and despite this he returned and miraculously the police turn up just after he left. He could have applied for protection and become a dual citizen and still worked for these outcomes but at least he would be safe.
He said that 2013 fell into the period of resolvement from 2010-2015 and this was what he focused on and he wanted to be part of the Kurdish cause. He gave up after the coup and that’s when he applied for protection. Asked when the coup was, he said it was July 2016. Asked what happened to him regarding his migration status in 2016. It was put to him that things had happened to him in Turkey yet he never applied for protection.
He only applied for protection three weeks after his skilled visa cancellation was affirmed and the Tribunal was concerned that he was only applying for protection because his other visa options were exhausted and that this action didn’t reflect any events that actually occurred to him in Turkey. The willingness to return to Turkey and coincidental timing of events raised further doubts in the Tribunal’s mind.
He claimed that after the 2016 coup attempt it wasn’t coincidental because that was when he gave up hope. The fact that his appeal was denied and then the coup meant that there was no longer a fight to fight. He was asked whether he had a social media profile that showed he was part of the fight or photos of him being active in the fight. He said he had photos and two social media accounts – one of the accounts was for his opinions. He began them in 2019. It was called [Account name] but was under his name. It was put to him that this was late in the process and was asked when his protection visa application was first refused. He claimed that it was a social experiment as he was in agreement with his community and about what the Turkish community was thinking.

He could share the pages with the Tribunal and he received racist and other abuses because of what he wrote. He was again asked when his visa application was refused by the Department and he said it was in 2018. It was put to him that the Tribunal was concerned that he started a social media page after he was denied a protection visa. The Tribunal had also raised concerns about the convenient timing of some of his evidence and this also added to concerns that he wa not really an activist. Asked if he had any social media presence prior to applying for protection in 2016 and he said he didn’t. He was asked why he only began one after he received a rejection of his protection visa application and he said it was just a social experiment done at the time.
He agreed that he began social media pages in 2019. Asked why the Turkish authorities would know or be interested in his page given there were many millions of pages in the world. He said the pages contained basic things and he wasn’t even going to include the claim unless he was asked. It was put to him that this then meant the Turkish authorities weren’t interested in this. He claimed the page was [Account name] and it was put to him he could provide some pages after. It was put to him that he had never put this in any pre-hearing submission and said he wasn’t going to raise it unless asked so it must not be of much concern to him. He said again that it was an experiment expressing his thoughts to see what treatment he would get and he received many adverse comments.
The member said he had received letters from [Organisation 2] and was asked why the Turkish authorities would be interested in any activities he had done with this group in Australia. He claimed that a few friends who went back to Turkey and were associated with the [organisation] had problems because the [organisation] were considered to be with PKK because they had YPG flags. He was asked why the Turkish authorities would think he had anything to do with YPG/PKK given he had no history of this, he said he had carried YPG flags at demonstrations. Asked if he had photos of this he said that he could get some – it was put to him that he claimed to have been active with this group for over a decade so it was strange he hadn’t provided anything to date.
He claimed that he had provided a paper from the [organisation] that contained everything. As for individual pieces of evidence, this wasn’t what they were doing. Their intention was to demonstrate and wave flags and social experiments. Asked if he provided any photographic or video evidence of him attending demonstrations in Australia, he claimed that he hadn’t as he wasn’t going to take photos just to show at his case. They asked if he had any photos and he said that he told them he didn’t take photos just for his case. He said that there are photos that friends took and he could try and get these. It was put to him that it was up to him and if it had been raised with him previously it didn’t appear that he was trying to argue his case very vigorously.
He claimed they didn’t join demonstrations to take photos and the letter includes everything about his participation, including in protests. It was told that if there was no photo or video evidence of him then how would the Turkish authorities know he was at demonstrations. He claimed that he joined a demonstration in front of the Turkish consulate and the staff there took videos of them. Asked if there was any evidence of this, he claimed that he provided a letter that outlines he joined the demonstrations.
The Australian police were there and the [organisation]’s letter would show that and if the Tribunal didn’t believe this he didn’t think the Tribunal was being fair to his claim. Asked if there was any social media evidence that he was at the consulate and that the staff were videoing them – for example if his group took photos of them. He said he would check if there was. It was put to him that he had a long time to prepare for this given his DIBP interview was in 2018 and he was alerted that this lack of photographic evidence was an issue then so it was assumed that he would have been better prepared given he ahd three years’ notice of the Australian government’s concerns..
He was asked how the Turkish authorities would be able to identify him from a country of 90 million people. He claimed that he had provided an initial letter that answered all the questions. He asked if he provided photos of him at a demonstration this would answer the question =s and he was told that it would just confirm that he was at a demonstration, it didn’t answer why he would be of interest to the Turkish authorities.
He was asked about a summons that he claimed arrived in September 2019 and it was put to him that it gave no details of what it was for or whether any arrest warrant had been issued or trial held. It was put to him that it was strange that it appeared in September when he wasn’t of any alleged interest to the authorities since 2013 – the convenient timing coming as it did the tear after his visa refusal also raised questions in the Tribunal’s mind as to its veracity.
The Tribunal had to decide whether it was a real or fraudulent document as there were no security features evident and it could have been produced on any home computer. He claimed that he added this letter (from a Turkish solicitor) and the solicitor’s phone and the Tribunal could ring to confirm. The Tribunal said it would not call the number as there was no way of verifying who the person was at the other end or their relationship to the applicant. The question the Tribunal was interested in was why such a document would turn up after his negative visa decision but six years after the last time he claimed there was any interest in him from the Turkish authorities.
He claimed that these were ordinary matters in Turkey and a friend had posted something in 2014 and he was summonsed in 2018 and these were the sad truths. Asked if there was an arrest warrant for him or if he was tried and he claimed that they didn’t let him know. His solicitor in Australia sent a letter to the Consulate but there was no reply. The adviser said the letter was sent in 2020 – asked if this was in the submission, the adviser said he didn’t put it in the submission because he received no reply to it. It wasn’t sent by registered post but by standard post – asked why he wouldn’t send by registered post he said courts normally sent it by normal mail.
Asked if there was an arrest warrant for not turning up for the summons and he said he didn’t know. It was put to him that his family would have known given they sent the summons to his house then the warrant or the court case result would have been sent there as well. He claimed that his parents chased it up and the solicitor chased it up but the police said they wouldn’t talk to his solicitor but they would only see him in person which was why this solicitor (in Australia) wrote to the consulate.
It was put to him that it was very strange that the police wanted to see him in person if they knew he hadn’t been in the country for years and why they wouldn’t just issue an arrest warrant or, if he was of interest why they hadn’t sought his extradition from Australia given there was a treaty between the two countries. He claimed they had friends in [Organisation 2] who were banned from going to Turkey and the Australian government was not handing them back. He was asked why the Turkish government wasn’t seeking his extradition and he said he wasn’t a criminal and he wasn’t a priority. He had no idea why the summons was sent, perhaps it was because he didn’t want to provide a statement for a case.
It was put to him that he had provided a photocopy of a DTP card but there was no explanation with it and he was asked its relevance. He said that it was because he was an observer at these elections. He got hold of the card because his parents were moving and they found it and it just popped out. His sister told him about it. It was put to him that he had been very particular about not having any evidence that would tie him to DTP which was why he had no photos or anything of the like and yet this card turned up. He said that it wasn’t a forbidden card just that he was an observer – he said he must have hidden it so well that it was only found. He had told DIBP previously that he couldn’t locate it. It was put to him that it was a photocopy of a handwritten document with no security features so it was difficult to give it much weight. He said that one just put it on their collar – it was a one-sided card given out by DTP to show they were on duty.
He was asked about his claim to fear persecution as an Alevi and he was asked if he was an observant Alevi and he claimed that he was. He claimed that there was [an Organisation 3] in Sydney and he attends their activities such as going to scripture. Country information was put to him that Alevis don’t face serious harm in Turkey and he had gone to two universities in Turkey and been employed since he left school, travelled to and from Turkey and he appeared to be well educated, done his military service and been employed and country information indicated Alevis weren’t persecuted in Turkey and he was asked why he thought he would be.
He said that he disagreed and noted the 1993 Sevis incident when 35 people were burnt alive in a hotel. People were also burnt in Ghazi, including educated people. Besides this Alevi people’s houses were marked and this shows the genocide done to the Alevis. He was asked why he personally feared serious harm in 2021 Turkey as an Alevi given his background in terms of education and employment and he claimed the Islamist party was now very powerful and people who didn’t pray are being ostracised and shunned in society – this is the same for those who don’t fast. It was worse for Alevis in Turkey in 2020 and 2021. He was asked to provide country information to support this claim as that available to the Tribunal did not support this claim. He then said the incident in the park at Ghazni in 2013 killed all Alevis and the comments made by Erdogan was discriminatory about Alevis was discriminatory. He was asked to provide evidence that Alevis in Turkey in Istanbul in 2021 were targeted, particularly as his family lived in Istanbul evidently without difficulty.
He said the Ghazi Park incident was an example of how Alevis are targeted and the Cem house they wanted to knock down but it was saved. During Ramadan the lights had to be off and there were pressures of this kind and it was unbelievable. He was reminded to provide information about the personal issues he faced and believes he faces as an Alevi.
He as also asked about two speeches he gave to [Organisation 2] that he allegedly gave in 2009 and in 2019 transcripts of which he provided to the Tribunal. He was asked if there was any evidence that they were publicly available and he said this was for the participants in the [organisation]. He was asked if there were any copies of it on the internet or [Social media] or the like. He was asked how the Tribunal or the Turkish authorities would be able to know that he actually gave these speeches, and he claimed that he did this speech to the community and it was open. He didn’t know why he had to make it public and make himself a target.
He was asked if he told the Immigration Department about the 2009 speech he allegedly gave. He said they didn’t ask and he didn’t tell them. It was put to him that he had written a six-page submission to the Department so it was strange that he didn’t find room to mention the speech he had given to the [organisation]. He said giving speeches was done on a continuing basis and these probably were the ones that stood out. He believed that the letter the [organisation] was comprehensive so he had no need to include it. Asked if the [organisation] letter mentioned his speeches, he said he could have this added if the Tribunal wanted it specifically outlined. Not all participants gave speeches which may be why it wasn’t mentioned.
Asked if any of his family members had been detained by Turkish authorities since he had left Turkey he said that his sister had been taken into custody. This had occurred twice – in October 2014 and January 2016 protesting restrictions on going out. Asked if there was any interest in him at the time she was detained, he said the questions at custody were mainly about him and he had given a written statement about this at his first interview with the Department. Asked what they wanted to know about him, he claimed that they asked her where he was and where he was living and when he was returning. They told her to tell him that if he returned he should report to the police station. It was put to him that this would have frightened him and he agreed and said that all the events frightened them. It was put to him that the police had visited his house looking for him in 2013 and they asked his sister about him in 2014 and January 2016 yet he didn’t apply for protection.
He said he did apply in 2016 and it was put to him that it was seven months after his sister was allegedly detained but just after his visa refusal. The Tribunal had difficulty in believing that his sister had been detained. He repeated again about his hope in the peace at the end of the period of resolution and he didn’t see anything abnormal about his applying in 2016. It was put to him that it was eight months after his sister’s alleged detention. He claimed there was a coup at the same period and they couldn’t move anywhere.
Asked when the coup was, he said July 2016 – it was put to him that his sister was detained and authorities asked about him in January 2016 so the delay had nothing to do with the coup. He said that he had been detained many times and this wasn’t the problem – it was the end of the period of resolution that made him seek protection. He said the head of DTP was still being kept in jail. The message was that they will detain others by not releasing Dematash the head of DTP.
He repeated that his life was threatened if he returned to Turkey and he was asking for protection from the Australian government. The adviser was asked if he had anything else and he asked for a five-minute break and this was granted. Following the break the advisor said that he believed that video evidence wasn’t accepted by the Tribunal but if videos were accepted he wanted to know how it was best to transmit. It was put to him that the member was not aware of any ban on receiving videos.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] February 2009, his application for a skilled visa was refused in September 2015 and this was affirmed by the MRT in July 2016. He applied for protection on 17 August 2016. 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 killed or tortured by the AKP and their supporters because he was an Arab Alevi and because he had been politically active against them. 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 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. To begin with, he claimed to speak only basic Kurdish which is on the face of it strange for such an allegedly ardent Kurdish nationalist. It is also inconsistent with his claim that his parents were both Kurdish nationalists who spoke fluent Kurdish but limited Turkish. I do not accept that because of the pressures they didn’t teach him Kurdish. This was inconsistent with what he wrote in his statement where he said that his father taught him Kurdish at home but that he wasn’t able to improve it later.
It also lacks credibility that if his parents only had limited Turkish but were fluent in Kurdish and that his father wanted him to be aware of their ethnic heritage, and encouraged them to read and understand their identity and culture that they wouldn’t speak to the applicant in Kurdish at home while he learnt Turkish at school and/or teach him to read Kurdish so he could read books in Kurdish. Their hesitancy to impart Kurdish language skills on the applicant because of the ‘pressure’ is also at odds with country information that Kurdish is widely spoken in Turkey.[1]
[1] DFAT Country Information – Turkey, September 2020, p 21
There is also no corroborating evidence of his alleged activities with the Kurdish political parties such as general photographic or media evidence that would support his claim that he was an activist in Turkey. While I note that the applicant claimed he was only an ordinary member, he was also allegedly active for several years and took part in protests and party meetings. The lack of supporting evidence in which the applicant can be seen as a political activist is curious, but not determinative of itself.
I do not accept that he was ever detained or beaten by the Turkish security authorities on any occasion while he was in Turkey. He claimed that he was detained and beaten by the police in March 2003, May 2006 (when they came to his house and took him away) and September 2007, and that he was then followed at his place of work and on public transport by two men for three months. I note that the amount of interests shown in him by the Turkish authorities appears to be out of proportion to his role in Kurdish activist groups, which he claimed was just as an ordinary member.
He could provide no evidence of the injuries that he allegedly received such as any photos taken at the time. He claimed that reports about his torture (including photos) had been sent to the European Human Rights by the party. I do not accept this to be true. He had never mentioned it in his six-page submission, he provided no link to, or copy of such reports, nor had he even sought to contact the organisation to seek a copy of their report. These are not the actions of someone keen to highlight the injustices meted out to them by the Turkish authorities. Section 423A of the Migration Act also requires me to draw an inference unfavourable to the credibility of the claim or evidence if I am satisfied that the applicant does not have a reasonable explanation as to why this was never raised prior to the primary decision being made. For the reasons listed below I do not find this claim regarding the European Human Rights commission being sent details of his torture to be credible.

(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 4181

17 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction