1814086 (Refugee)

[2019] AATA 6857

1814086 (Refugee) [2019] AATA 6857 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814086

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Nicole Burns

DATE:2 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 December 2019 at 4:50pm

CATCHWORDS

REFUGEE – protection visa – Turkey – ethnicity – Kurdish – religion – Alevi – actual and imputed political opinion – member People’s Democratic Party (HDP) – pro-Kurdish demonstrations – anti-Turkish government – Kurdish independence –  previously known to Turkish Intelligence – assaulted and threatened by police – posts on social media – criminal conduct in Australia – political activities in Australia – mental health heightens risk – decision under review remitted   

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Turkey, applied for the visa on 19 December 2014. The delegate refused to grant the visa on 9 May 2018.

3. The applicant appeared before the Tribunal (via video link from [Location 1]) to give evidence about his case on 26 September 2019. The hearing was assisted by an interpreter in the English and Turkish languages.

4. The applicant was represented by his registered migration agent, who attended the Tribunal hearing.

5. The Tribunal notes there have been significant delays in hearing this matter, due to a decline in the applicant’s mental health. The applicant was first invited to a hearing to take place on 17 July 2018, and the Tribunal scheduled three more hearings thereafter, all of which were postponed at the request of the applicant’s representative due to the applicant’s poor mental health and concerns about his capacity to give evidence. This included the applicant being transferred for a period of time from [Location 1] to [Hospital 1] where he was admitted to a secure psychiatric unit [under a medical order] according to a letter from the [a provider of forensic mental health services] to the representative on 17 January 2019 (a copy of which was provided to the Tribunal). The same [letter] stated that the applicant’s presentation has been consistent with the ‘diagnosis of [Medical Condition 1]’.

6. At hearing the applicant said he had returned to [Location 1] from [Hospital 1] sometime in March 2019; that he was diagnosed with some type of [specified medical condition]; and that he was currently taking medication to assist in managing the symptoms.  In a report provided to the Tribunal after the hearing from Forensic Psychiatrist, [Dr A] dated 13 August 2019 the doctor reports that the applicant was currently prescribed [specified] medication. [Dr A] also refers to the applicant’s [symptoms], and opines that he suffers from [Medical Condition 1]. However, as noted by the representative in his post hearing submission, the medical evidence demonstrates that the [condition] arose long after the applicant first made his claims for protection. The Tribunal accepts that is the case. As well, having engaged with the applicant over many hours of hearing the Tribunal is satisfied that he was competent to give evidence and was able to meaningfully engage in the hearing process.

7. The Tribunal notes at hearing the applicant explained that he has been in prison since  [July] 2018, initially arrested and charged with [a specified offence]. His representative said the applicant was found guilty and received a [number]-year sentence with a [number]-year non-parole period. The applicant has appealed the conviction and sentence and was awaiting further news from his criminal lawyer.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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 s.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

12. 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Receiving country

14. The applicant states he is a national of Turkey. He came to Australia in November 2014 as the holder of a student visa and Turkish passport. He has also produced a translated copy of his Turkish national identity card. On this basis the Tribunal accepts the applicant is a national of Turkey and has assessed his protection claims accordingly.

    Claims and evidence

15. The issue in this case is whether Australia has protection obligations with respect to the applicant if satisfied that he is a refugee or complementary protection provisions apply. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

16. The applicant is a [age]-year-old man from [City 1], southern Turkey who claims to fear persecution on return to his home country for a number of reasons, including because of his (Kurdish) ethnicity, (Alevi) religion and his actual and imputed (anti-government/pro-Kurdish) political opinion (including in relation to his membership and support of the People’s Democratic Party (HDP) and political activities in Turkey and in Australia).

17. The applicant’s protection visa application was accompanied by a statutory declaration from the applicant dated 21 January 2015 in which he sets out his background, protection claims, experiences in Turkey and fears if he has to return there. Material provided in support of the visa application included copies of photographs of the applicant attending protests against the mistreatment of Kurds in Turkey in [Australia]; a letter[1] of support from [an office bearer], [Organisation 1 in Australia]; a letter[2] from [an office bearer], [Organisation 2 in Australia]; a translated copy of the applicant’s  [Organisation 3] membership card; a copy of the applicant’s father’s press ID card and some of his news articles; and country information about treatment of opposition supporters in Turkey, among other things.

    [1] Dated 20 February 2017

    [2] Dated 20 February 2017

18. The Tribunal notes the Departmental file contains a letter submitted to the Department after the applicant’s interview with the delegate.  In it the applicant’s representative advises of the recent arrest of [Official 1] of the HDP in [Province 1] ([Mr B]), who was also, allegedly, the author of a letter submitted to the Department (on 30 May 2017) confirming the applicant’s involvement with the HDP. However the letter from HDP is not on the Departmental file, and the delegate does not refer to it in the decision record. This was brought to the representative’s attention at hearing and afterwards he submitted to the Tribunal a copy of the letter in Turkish dated 28 April 2017 showing an HDP stamp and symbol, along with a copy of a translated version from Turkish to English. The letter is purportedly signed by [Mr B], People’s Democratic Party, [Official 1] of [Province 1], who states that the applicant ‘had actively participated in our Party’s activities from 2012 until October 2014’. At the Tribunal hearing the applicant said he thought he obtained the letter in Turkey prior to coming to Australia.  However in a post hearing submission the representative states this is incorrect: the applicant instructs that he obtained the letter in 2017 whilst he was in Australia, and that he was confused at hearing. He said his father obtained the letter by visiting the HDP officer in [City 1], on his instruction.

19. The representative provided to the Department a copy of a news report of [Mr B’s] arrest (translated) and a screen shot of the applicant’s phone showing WhatsApp conversations between the applicant and [Mr B] who he was allegedly in frequent communication with until [Mr B’s] arrest in August 2017.

20. On review the representative has provided to the Tribunal three written submissions[3] setting out the applicant’s background, protection claims and country information to support the contention that his claims are well founded. In a post hearing submission the representative clarified aspects of the applicant’s oral evidence at hearing, provided an update about his mental health and relevant country information, and provided some examples of the applicant’s tweets (and retweets), critical of the Turkish government.

    [3] Dated 11 September 2018, 24 September 2019 and 1 November 2019.

21. At hearing the applicant gave oral evidence about his background, reasons he left Turkey (and adverse experiences there), activities in Australia, and fears upon returning to Turkey now or in the foreseeable future. His oral evidence was detailed, reasonably coherent and consistent with his earlier claims to the Department and written claims before the Tribunal. His knowledge of the political environment in Turkey – when he lived there and more recently – as well as about the political parties he claims to have supported was comprehensive and consistent with country information. He has also provided supporting documents, including a letter from HDP confirming his involvement, as mentioned above. Accordingly the Tribunal accepts the applicant’s core claims with respect to his political activities and related experiences in Turkey as described at hearing, summarised as follows:

    a.The applicant left Turkey (to study in Australia) in November 2014. A few months prior – in July 2014 – he was forced into a car whilst walking along the street in his home town of [City 1] by four men, blindfolded, and taken to a basement of a building. There the men told him they were from the MIT (Turkey’s state intelligence agency) and asked him to report about activities of his local cemevi (Alevi prayer hall) and other Kurdish organisations he was involved in, including the HDP. Initially the applicant refused, however he agreed after they threatened to kill him. They let him go and said they would be in touch. They contacted the applicant a few days later on his phone and asked to meet: however the applicant switched off his phone, destroyed his SIM card and did not leave his house for a few days. Around this time he decided he needed to leave Turkey. He did not have any further contact with the MIT.

    b.The applicant believes the MIT tried to recruit him to relay information about Alevi and Kurdish groups because of his involvement with such groups. Specifically:

    ·His regular attendance at an Alevi cemevi in [City 1] to worship

    ·His active involvement with the HDP

    ·His involvement with the Mesopotamia cultural association

    c.The applicant first became involved with the HDP whilst at university (in [City 1]) in around 2001, attracted to their aim to protect the democratic rights of Kurds. He attended meetings, helped organise Newroz (new year) celebrations and distributed brochures. His involvement continued after university, until he was approached by MIT in mid-2014 (before he departed Turkey in November 2014).

    d.The applicant experienced the following incidents in Turkey in the past due to his profile as an HDP member and/or as a Kurd/Alevi:

    ·The applicant and two friends were attacked by a group of ultra nationalist students whilst at university in March 2002, around a week after Newroz celebrations whilst waiting at a bus stop. His friends managed to run away but the applicant fell to the ground and was assaulted. A police vehicle stopped nearby and took the applicant to the police station: the applicant wanted to make a complaint but the police called him a ‘terrorist’ and a ‘woman’ (noting he had an earring) and refused to allow him to do so.

    ·One day in December 2005 police stopped their car in front of the applicant as he was walking on the street, asked to see his ID, put him in their car, hit him on the head and back and told him not to return to the DTP (the Democratic Society Party) or any other Kurdish organisation before letting him go.

    ·Sometime in 2009 police attended and searched the applicant’s home, confiscated some material (including the applicant’s university notes, his father’s bible and books about Kurds and Karl Marx), took the applicant into custody and let him go after two days. In custody they asked him questions about his cousin who had joined the PKK (Kurdistan Workers’ Party) and showed him photographs of friends from university who had joined the PKK.

    ·One night in 2012 the applicant was attacked by a group of men with Islamic appearance who held a knife to his throat and told him to shut down a [shop] he was operating, because it was considered western and involved activities that steered youth away from religion. He also received threatening phone calls to shut down the shop and on one occasion the shop windows were smashed. He made a complaint to the police who told him to work in a more honest field: shortly thereafter the applicant sold the shop.

    ·During his five and a half months’ compulsory military service (from  [September] 2013) the applicant was often shouted at, insulted and sometimes assaulted by his superior lieutenant who knew he was an Alevi Kurd.

22. The Tribunal also accepts, based on his consistent oral evidence and supporting documents from [Organisation 1], among others, that in Australia the applicant has participated in a number of protests against the Turkish government (the AKP, or Justice and Development Party), from shortly after he arrived in late 2014 until before he went to prison ([in] July 2018). The protests have taken place outside the Turkish consulate, and often the applicant (and others) held YPG (Syrian People’s Protection Units) flags, and had their photographs taken, some of which are shared on [social media], for example. The applicant also visits the Kurdish association every week and regularly posts tweets about Kurdish problems or issues in Turkey and retweets information from Kurdish newspapers, evidenced by a selection of translated tweets and retweets provided to the Tribunal. Having regard to the applicant’s oral evidence about his motivations for being politically active in such ways in Australia, and his history of political activism for Kurdish rights in Turkey, the Tribunal is satisfied that the applicant’s conduct in Australia was otherwise than for the purpose of strengthening his claim to be a refugee and therefore has not disregarded that conduct, as per s.5J(6) of the Act.

    Future fear of persecution

23. Given these findings the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to Turkey for a refugee reason.

24. It is submitted[4] the applicant faces a well-founded fear of persecution from the Turkish authorities on return to Turkey because of his:

    a.Imputed (anti-Turkish government and pro-Kurdish separatism/autonomy/independence) political opinion due to his Kurdish ethnicity, Alevi religion, previous pro-Kurdish political activities and status as a returnee/failed asylum seeker

    b.Actual political opinion: support of pro-Kurdish political parties and movements and in opposition to the Turkish authorities. He has been politically active in Turkey (in support of the HDP and other groups); is known to the Turkish authorities and the Turkish Intelligence agency; and has engaged in pro-Kurdish political demonstrations in Australia

    c.Alevi religion

    d.Kurdish ethnicity

    [4] In a written submission dated 24 September 2019

25. The representative submits that the applicant’s mental health further heightens the risk of him coming to the attention of the Turkish authorities for these reasons on his return to Turkey.

26. For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution on return to Turkey for the combined reasons of his actual and imputed (anti-government/pro-Kurdish) political opinion and Kurdish ethnicity.

27. It is submitted the applicant holds an actual political opinion in favour of pro-Kurdish political parties and movements, and in opposition to the authorities in Turkey. He fears serious harm as a result because he has previously been politically active in support of the HDP and other Turkish groups; his previous activities are known to the Turkish authorities (in particular the Turkish intelligence agency); and he has engaged in pro-Kurdish political demonstrations in Australia. It is submitted that there is a real risk he will come to the attention of the authorities on his arrival in Turkey due to his Kurdish ethnicity and previous involvement in pro-Kurdish groups, including the HDP. His risk is heightened, it is submitted, because he has previously been known to Turkish intelligence authorities, because he faced criminal prosecution in Australia and due to his mental health.

1. The representative has submitted country information from a variety of sources about the worsening general security and human rights situation in Turkey following the failed 2016 coup attempt against the AKP government of Recep Tayyip Erdogan; the further erosion of rights for Kurds in Turkey linked to renewed fighting between the government and the PKK, and the state’s actions following the failed coup; and the restrictions and targeted harm (including arrest, torture, arbitrary detention and death) faced by Kurds in Turkey, particularly those who are politically active.

2. In a post hearing written submission provided to the Tribunal the representative argues that recent developments in northern Syria – in particular the withdrawal of US troops there and Turkey’s plans to attack Kurdish PKK and YPG in the area, who they consider terrorists (‘Operation Peace Spring’) – further heighten the risk of harm for Kurdish activists in Turkey, such as the applicant. Reference is also made to reports about a crackdown on activists in Turkey during previous military incursion by the Turkish military in northern Syria in January 2018. This included reports about people being detained for what are perceived as pro-Kurdish, anti-government social media comments since the commencement of ‘Operation Peace Spring’.

3. The Tribunal has accepted that the applicant has been active in Kurdish politics in Turkey and was approached by members of Turkish intelligence in mid-2014 to collect information about the various Kurdish (and Alevi) organisations he was involved with, which prompted him to leave the country. The Tribunal accepts that he was assaulted and threatened by police in 2005 as a warning to discontinue his political activities, and detained for two days and questioned by the police in 2009, although this incident appears to have been related to the authorities’ interest in his cousin, who had allegedly joined the PKK – a banned Kurdish organisation – some years before. Apart from these two incidences, the applicant did not experience any further problems from the authorities (or anyone else) despite being politically active, and the authorities clearly knowing that was the case. Given this, and the passage of time, the Tribunal held an initial concern as to whether the applicant would be of any ongoing adverse interest to the authorities on return to Turkey due to his past involvement with and support of various Kurdish political parties and organisations.

4. At hearing the applicant said if he had to return to Turkey now he is afraid the authorities will take him into custody at the airport due to his past political activities in Turkey and in Australia. The representative submitted that the applicant’s profile as a politically active Kurd in Turkey in the past has not changed and in fact has strengthened through his activities in Australia including being active on social media. The Tribunal accepts the applicant has been politically active in Australia through attending protests for example and online. It is unclear whether the Turkish authorities would be aware of this fact. The limited information available indicates that the Turkish authorities have monitored pro-Kurdish groups and individuals abroad but primarily in Europe and in a recently issued paper by the Department of Home Affairs on the Treatment of ‘Gulenists’ and Kurdish groups in Turkey it was reported that the relevant section found no publicly reported examples of this occurring in Australia.[5]

   [5] Country of Origin Information Services Section (COISS), Department of Home Affairs, ‘Treatment of “Gulenists” and Kurdish groups, Turkey’, effective from 8 November 2019, p.26

5. Nonetheless, the Tribunal accepts that given the applicant’s keen sense of injustice with respect to Kurds’ rights and freedoms, and his own personal experiences as well as that of friends and relatives, the applicant would be politically active in some capacity to promote Kurds’ rights and protections in Turkey on return. It notes in this regard his evidence at hearing that a number of his relatives who were also active in Kurdish (and Alevi) groups have fled Turkey and successfully sought asylum elsewhere, including four cousins who are in Australia.[6] The Tribunal also accepts the applicant’s claims that there was some interest in him after he left – that is his mother told him there was an unmarked police car in front of their house a number of times, which continued for a few months after he left. It accepts that he is known to the authorities in [City 1] as himself being involved in Kurdish groups, and being the relative of those involved in Kurdish groups including his cousin who allegedly joined the banned PKK.

   [6] Including a cousin who is the applicant in RRT case No [number].

6. Taking into account these considerations and findings about the applicant’s past experiences and profile (and that of his relatives) the Tribunal has considered independent country information about the treatment of Kurds and politically active Kurds in particular in Turkey in making its assessment about whether or not his fears in this respect are well founded as required by s.5J of the Act.

7. Country information indicates that there are about 15 million Kurds in Turkey, or 18 per cent of the population. Kurds are not fully able to exercise their linguistic, religious and cultural rights.[7] There has been a historical demand by the Kurdish people for minority rights and greater autonomy in the south-east. This has included a decade-long armed conflict between the state and the banned Kurdistan Workers’ Party (PKK).[8] A ceasefire deal was reached between the government and the imprisoned leader of the PKK, Abdullah Ocalan in 2013 and in February 2015 the government and the People’s Democratic Party (HDP) negotiated a 10-point peace plan. However both the peace plan and ceasefire agreement collapsed in July 2015, which resulted in an escalation of fighting.[9]

   [7] United States Department of State, Country Report on Human Rights Practices for 2017 Turkey, 20 April 2018, DFAT Country Information Report, Turkey, 9 October 2018

   [9] The Economist Intelligence Unit, ‘The Kurdish peace process begins to collapse’, 29 July 2015; DFAT Country Information Report, Turkey, 5 September 2016, p.12; European Commission, ‘Turkey 2018 Report’, 17 April 2018, p.17; and Amnesty International, ‘Displaced and Disposed: Sur Residents’ Right to Return Home’, December 2016, p.7.

8. On 15 July 2016 elements of the Turkish military attempted a coup d’état against the Turkish government. According to the most recent DFAT report, international and domestic observers have reported that the government’s response to both the resumption of conflict in the south-east between the government and the PKK, and to the July 2016 attempted coup, has significantly affected the rights and freedoms of Kurds.[10]

   [10] DFAT Country Information Report, Turkey, 9 October 2018 at 3.5–3.10.

9. In 2016, violence peaked in the Kurdish regions of south-eastern Turkey following the collapse of the ceasefire between the PKK and the government in 2015, after two years of relative peace.[11] Human Rights Watch has said that people continue to be arrested and are remanded to pre-trial custody on terrorism charges with at least 50,000 people remanded to pre-trial detention and many more prosecuted since the failed coup. Those prosecuted include journalists, civil servants, teachers and politicians as well as police officers and military personnel. Most were accused of being followers of the US-based cleric Fethullah Gulen. It has said that this includes human rights defenders such as those involved in Amnesty International. There has also been a crackdown on elected parliamentarians and officials from pro-Kurdish parties.[12]

   [11] European Commission, Turkey 2018 Report, 17 April 2018

   [12] Human Rights Watch, World Report 2018 Turkey, 2018, >

   Reports indicate that the government’s crackdown on the Kurdish political movement continues. Kurds and members of Kurdish opposition groups continue to be arrested and detained since the attempted coup in July 2016. In a Foreign Affairs article it was reported that of all people arrested in government operations between October 2016, at the start of the state of emergency and the end of February 2018, 31 per cent were allegedly associated with Kurdish or leftist groups.[13] In a Foreign Policy article it was reported that as of March 2018 almost 12,000 HDP-affiliated persons have been detained or jailed.[14] HDP co-leaders were detained on terrorist-related charges in November 2016, and the harassment and targeting of opposition groups including pro-Kurdish activists and members of the HDP around elections continue.[15]

   [13] Foreign Affairs, ‘The Remarkable Scale of Turkey’s “Global Purge”’, 29 January 2018

   [14] Foreign Policy, ‘The Making of a Kurdish Mandela’, 10 May 2018.

   [15] Al Monitor, ‘Ankara likely to use new charge to keep HDP co-chairs behind bars’, 23 September 2019; Voice of America ‘Kurdish Vote May have Major Impact on Turkey’s Polls’, 30 April 2018; OSCE Office for Democratic Institutions and Human Rights (ODIHR), ‘Republic of Turkey EARLY PRESIDENTIAL AND PARLIAMENTARY ELECTIONS 24 June 2018 ODIHR Election Observation Mission Final Report’, 21 September 2018; and Middle East Eye, ‘Fear and fatigue: Turkey’s election weighed down by silence’, 15 June 2018.

10. With respect to the situation for Kurds and pro-Kurdish groups in Turkey – including the opposition party HDP – DFAT state that:

    Political parties representing Kurdish interests have traditionally faced strong opposition from the Turkish state, and the government has declared many pro-Kurdish parties illegal on the grounds they have provided support for the PKK. The leading pro-Kurdish parties at present are the HDP and its regional sister party, the Democratic Regions Party (DBP). The HDP competed in the June 2018 presidential and parliamentary elections, with the HDP winning 67 seats (see Political System). Since the breakdown of the government-PKK ceasefire in July 2015 and subsequent resumption of conflict in the south-east, however, authorities have further restricted the ability of the two parties to conduct political activities.

    The HDP’s parliamentary representatives have been particularly affected by the crackdown (the DBP is not currently represented in parliament). In July 2017, parliament amended its by-laws to prohibit the use of the word ‘Kurdistan’ or other sensitive terms by members of parliament on the floor of parliament, providing for the possible issuance of fines to violators. In December 2017, parliament suspended the HDP’s parliamentary spokesperson for two General Assembly sessions after he referred to himself as a ‘representative of Kurdistan’ during a parliamentary discussion. In May 2016, parliament approved a law allowing for the lifting of parliamentary immunity: eleven HDP parliamentarians had their seats revoked, and one current and nine former HDP parliamentarians have subsequently been imprisoned on various charges.

    ...

    While several opposition parties suffered attacks on party premises during the 2018 election campaign, including attacks on campaign offices, vehicles and stands, and obstructions of rallies, these mainly affected the HDP. Following the election, the Human Rights Association (HRA) released a report saying that, during the campaign (28 April to 21 June), it had counted 93 attacks against the HDP, including 28 by security forces: in one case in Ceylanpinar on 5 June, police dispersed a previously-approved campaign rally by using pepper spray. After President Erdogan claimed victory late on 24 June, a number of AKP and MHP supporters surrounded HDP district offices in Ankara and Istanbul and assaulted party members. In Istanbul, approximately 1,000 people demanded the HDP remove its election flags while chanting ultranationalist slogans. The OSCE reported that police in Ankara, Manisa, Istanbul, and Bursa had confirmed to them incidences of political violence and vandalism against the HDP, and that in some cases authorities had launched investigations into the incidences. The HDP, however, told the OSCE that its criminal complaints concerning attacks on its campaign activities were not effectively handled by law enforcement, and that it had subsequently lodged a complaint with the prosecutor’s office on negligence of police officers’ duties.

    In addition to incidences of physical attacks, the HDP reported that security forces routinely monitored their campaign activities in an intimidating manner, and that high-level campaign rhetoric from the AKP contributed to an atmosphere of fear among HDP candidates and supporters. On 14 June, President Erdogan instructed AKP members to identify HDP voters in their respective neighbourhoods and ‘keep a close watch on them’, while on several occasions during campaign rallies in various locations he referred to Demirtas as a terrorist. The HDP reported that authorities detained 375 of its party activists during the election period.

    Authorities have continued to target pro-Kurdish activists in the post-election period in the context of anti-terrorist raids against the PKK. The state-run Anadolu Agency reported on 11 September 2018 that 180 people, including HDP and DBP activists, had been remanded in custody across Turkey since the election. On 15 July, special operations forces violently raided the HDP office in the Sancaktepe district of Istanbul, detained 16 people (including the co-chair of the office), and reportedly left behind racist graffiti on the office walls. According to human rights defenders, pro-Kurdish activists who made comments on social media that authorities found offensive were now likely to be identified as PKK supporters and faced much harsher punishments than in the past: instead of one to two months in prison, activists now faced years’ long charges on broad terror offences, and family members were also likely to come under official scrutiny.

    DFAT assesses that pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for both high-level politicians and low-level activists, and applies nationwide.[16]

    [16] DFAT Country Information Report, Turkey, 9 October 2018 at 3.43–3.48.

11. HDP is a pro-Kurdish opposition party in Turkey, founded in 2012 and first entered parliament in the 2015 elections (where it won 13.1 per cent of the vote).[17] The government has led a crackdown on members and leaders of the HDP (and its regional sister party, the DBP) since the attempted coup, who accuses it of having links to the banned PKK. There are reports that since the attempted coup, many HDP members, officials and supporters have been arrested and dismissed from their jobs.[18] HDP party activists faced detention, police monitoring and harassment in the lead-up to the presidential election on 24 June 2018. After the elections of March 2019 three elected HDP mayors in the south-east Kurdish region of Turkey were removed and accused of having terrorist links.[19]

    [17] ‘Two more HDP deputies lose seats in Turkish Parliament’, Hurriyet Daily News, 27 February 2018; DFAT Country Information Report, Turkey, 5 September 2016, p.11

    [18] Republic of Turkey Early Presidential and parliamentary elections 24 June 2018 ODIHR Election Observation Mission Final Report, OSCE Office for Democratic Institutions and Human Rights (ODIHR), 21 September 2018, p.32

    [19] ibid

12. More broadly those who voice dissenting views on Kurdish issues have been arrested in Turkey. This includes journalists, human rights defenders and people posting comments on social media criticising the government’s military offensive in Afrin, Syria in 2018.[20] More recently Amnesty International reported on Turkey’s continuing crackdown on dissent in regard to its military operation – ‘Peace Spring’ – in north-east Syria.[21]

    [20] Amnesty International, ‘Weathering the Storm – Defending Human Rights in Turkey’s Climate of Fear’, 26 April 2018, p.8.

    [21] Amnesty International, ‘“We can’t complain” Turkey’s continuing crackdown on dissent over its military operation “Peace Spring” in northern east Syria’, November 2019

13. In such an environment and given such country information the Tribunal accepts that there is a real chance that the applicant would suffer serious harm (such as arrest and torture) if he returned to Turkey due to his (actual and/or imputed) political opinion (pro-Kurdish or anti-government opinion) and his Kurdish ethnicity. This is because, among other things, he is already well-known to the authorities including Turkey’s intelligence who asked him to convey information to them, and he would continue to speak out against injustices against the Kurdish people and draw further attention to himself. The Tribunal has accepted he has been threatened and harmed by the authorities and ultra-nationalists in the past because of his political activities and profile in Turkey. The country sources indicate that activists such as the applicant face a real chance of serious harm for being involved in Kurdish political parties or speaking out against the government.

14. Based on the above factors cumulatively and taking into account the country information set out above – in particular DFAT’s assessment that pro-Kurdish political activists face a high risk of official discrimination, which may be enhanced during election periods, and also a moderate risk of physical violence from security authorities and ultra-nationalist supporters (and that the level of risk is the same for both high-level politicians and low-level activists, and applies nationwide)[22] – the Tribunal finds that there is a real chance the applicant will be subjected to ‘serious harm’ including loss of liberty and significant physical harassment and ill-treatment for the purposes of s.5J(4)(b) if returned to Turkey, now or in the foreseeable future. It finds that the harm will be directed at him for the essential and significant reasons of his imputed (anti-government/pro-Kurdish) political opinion and Kurdish ethnicity and involves systematic and discriminatory conduct for the purposes of s.5J(4).

    [22] DFAT Country Information Report, Turkey, 9 October 2018 at 3.47.

15. As the applicant’s fear includes fear of persecution at the hands of the state, the Tribunal is satisfied that the real chance of persecution relates to all areas of Turkey for the purposes of s.5J(1)(c) and that effective protection measures are not available to him for the purposes of s.5J(2). He cannot be required to modify, alter or conceal his political beliefs pursuant to s.5J(3).

16. It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

17. Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.

    CONCLUSION

18. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

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

   Nicole Burns
   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.

   …
   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.

   …

   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.

   …

   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 them 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

   …

   (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.

   …