1814747 (Refugee)

1814747 (Refugee) [2022] AATA 5033 (8 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1814747
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Rodger Shanahan
DATE:8 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 November 2022 at 9:44am
CATCHWORDS
REFUGEE – protection visa – Turkey – well-known family name as brothel owners - political activism/attendance at protests – appearance – religion – Judaism – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 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 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 1 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Turkey, applied for the visa on 29 September 2016.
The applicant appeared before the Tribunal on 12 October 2022 to give evidence and present arguments.
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 (Cth) (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 applicant provided the following statement as part of his application:
My paternal grandfather’s [job] was a pimp and he ran brothels in Balikesir, Akhisar and Manisa. To be the son of a pimp was dishonourable for my father and to be the wife of a son of a pimp was dishonourable for my mother. The conservative lifestyle and extreme religious environment pressure made life unbearably hard for them and made them run away. Being the family of a pimp nearly makes everything impossible because the society doesn’t accept the family members of such a person. It is not honourable to communicate or even trade with the relatives of a pimp. People stay away from you and it can even close your business.
In 1991 we move to central Balikesir for me and my sister’s primary education. From the first day of primary school in [year], I tried to understand why my friends’ families don’t want me to play with their children. In those days my family put pressure on me to do well at school so that I could have a chance at a good life. As the only boy, I also had the added pressure of being responsible for continuing the family name.
At school, I started to feel reasonless judgements and punishments of wild behaved children and teachers. I was the one who needed to be change and be left alone, because they were sure that was the way to educate a problem child. My teacher [hit] me with a long, broken ruler on the backs of my legs. This caused purple marks.
For middle school I went to a private school because my dad was afraid of the negative behaviours I was experiencing at the public school. But money didn’t change the way people thought about me, it even got harder, because everyone had more power. In these years I mostly was tortured by my religion [teacher]. One day he beat me non-stop for the whole class, 45 minutes long in front of all of my classmates. At another time three boys – followed me into the toilet and beat me.
I started questioning and trying to understand this reasonless aggression. The best thing about those four years was the English prep class that I took in the first year. After that my life focused on books and encyclopaedias until high school. At the end of middle school I took an exam and placed in one of Turkey’s best high schools. I studied maths, physics and biology. The teachers of these lessons were the only people I could communicate with. At the first day of school some families asked the school to put me in another class to be away from their children, but my family did not let this happen.
I got a good result on my university entrance exam. My family chose [Course 1] for me in a school in Istanbul where students are mostly extremely religious. I did not have a choice where to go to university or what to study or my father would not have paid for it. The only way to fit in with my religious classmates was to become religious and pray with them, but I was still the grandson of a pimp. The only way to clean a ‘dirty’ name is to beg forgiveness from God and join their praying sessions.
I am not a Muslim. I respect it, but I do not believe in it. So I was just going to class and leaving school without making any friends. I spent most of my time studying advanced science and philosophy and I met people from all around the world. I discovered that I wasn’t wrong I was just different.
The way I look is also different and sometimes I was getting threatened. I had long hair, an [piercing] and a tattoo. In Turkish society it was not proper for a man to look this way. My ex-girlfriend’s family didn’t like the way I looked so one night her uncle and two nephews started a fight with me because they wanted me to stay away from her. Two of them held me down while one punched me and pulled my hair out. This happened in January 2005. They said if I wanted to go to the police they would say that I attacked my girlfriend. I was too afraid to go to the police.
After university I did a couple of casual jobs and [studied]. In 2012 I completed compulsory military duty after I took military education as a lieutenant in Istanbul and north Cyprus. I had the chance to continue with the army as a lieutenant, but I could not agree with militarism and in 2012 I left the military and returned to civilian life. At this time every structure in Turkey, including the army, got affected by religious corruption (North Cyprus highest general Adem Huduti, was arrested after the coup of 2016).
I went back to Istanbul and tried to set a beginning in corporate life. I worked for a company called [as] an [occupation]. I enjoyed my job so much but my direct manager made it impossible for me to succeed. He did not appreciate the way I looked or spoke to people. I was sent to [Country 1] to do training with [a company]. I was successful and got invited to the second training session but my manager would not let me go. At the same time the political situation of Turkey was getting worse. I found myself in an environment where I believed that supporting this government and the extreme Islamic way of life will take our community to a war. The only way to survive was to be one of them and take steps to the civil war that was coming to Turkey.
In April 2014 a physical attack happened around my house. Three men wearing masks came out of the dark when I was arriving home, they said I should move or they would make me change. They beat me and left me on the street. When I told this to the police they told me it was my fault because of the way I look and think, and that I was wrong.
I had to leave my place because I was also threatened by my neighbours. I was a single man living in an apartment where mostly families lived which was dishonourable for their family. Some of my female friends also were verbally attacked when they left my apartment by the people in my neighbourhood. So I left Istanbul, my job and my place and tried to find a place in different cities. I went to Fethiye and Izmir but the Islamic structure was already there closing the way for a man with dishonourable blood, non-religious, ‘devilish looking’ to live a free life.
I didn’t want to cause bigger problems for my family so I started looking for a permanent solution. Australia was the country that I felt like I can adapt to. My old friend also came and lives with his wife on a permanent visa. I searched all the options possible for me and decided to apply for a working holiday visa. A company helped me lodge my application and I came here [in] October 2015.
I thought that the time period would give me a chance to try if I can live in a different culture and can adapt to it. I found that I can adapt to the Australian way of life and I enjoy speaking English. In this time I could observe if things got better at home but it didn’t. Everything got worse. Turkey turned into a third world country and became a centre of pain. As I write this Turkey is at war with Syria.
Going back to Turkey would be like a suicide. I will be sent to war or harassed and attacked by civilians. I cannot make myself into a religious Muslim and I cannot change my family history. One year in Australia has been better then [number] years in Turkey. The same year was the worst year in modern Turkish history. I do not have a safe place to go back to.
AAT Hearing
The applicant was asked if he had any other statements other than the one that was provided with his application. He claimed that he provided an updated one with the email replying to the AAT hearing invitation. He was advised that there was no statement attached and the only statement the Tribunal had from him was from September 2016 – he said that he would check his emails and was advised that he could provide the update post-hearing. He was asked and claimed that everything he had written and said was true and correct.
He claimed that if he returned to Turkey he would not be able to live a lifestyle that was safe and secure. He was asked to be more specific – he said that he would be tortured by the Turkish officials and Muslim citizens because of his ideas about government and his religious beliefs. He had no other claims. He had this fear from around 2013/14 – prior to this the fear wasn’t as significant. Asked to be more specific, he then said that he did have serious harm from 2013 but he didn’t have it prior to this. It was put to him that his statement said something different to this, and he said that he did have a fear of serious harm. It began from the time he protested against the government – this was around 2012.
He said that his family’s business was running brothels - his father and grandfather ran these for the last 60 years in the cities of Balikassar, Manisa and Akhisar. They were still running. He didn’t have a warm relationship with his family because of this and at school he was discriminated against. The teachers would harm him – this was around 2003-12 and it was hard for him to get jobs amongst the community. The teachers would harm him because his family did not have an honourable occupation.
It was put to him that he would have been [age] in 2003 and nearly leaving school and was asked if the teachers harmed him prior to this and he claimed that they did. Asked why they did, given teachers didn’t normally harm a child as a matter of course particularly from primary to high school. He said that he wasn’t wanted in the neighbourhood and from a family of gangsters. He said that he asked himself the same question and his name wasn’t accepted.
His father was a criminal. Asked what his father did once he found out that his son was being harmed by the teachers at school, he said that he fought them physically. Asked if he mentioned this in his statement, he said that he hadn’t. He stayed in school and studied as his family wanted him to succeed. His family (father) used to physically harm him at home and told that he deserved it. He was still in contact with his family through his mother. He had said that he wrote to them every day and his mother had suffered from domestic violence.
He went to university in Istanbul to a private university paid for by his grandfather – he wanted to sponsor the applicant for his education. It was put to him that he had previously said that he didn’t have a choice in where he went to university otherwise his father wouldn’t have paid for it. Asked why this was different, he claimed that his father paid the money to his father who then paid the university.
He faced similar discrimination at university. Physical harm from classmates and mental and emotional harm from the professors by giving him some failing grades – he didn’t receive equal treatment as the professor wouldn’t re-examine his results. They have to give him a chance to be re-examined but there was no record of this. It was put to him that some people didn’t do well at university and he could have just scraped through as he wasn’t a good student, with some failed subjects.
Istanbul was four to six hours from his home city, and he was asked why he was singled out for treatment owing to his name given he was a long way from home and Turkey was a very large country of 85 million people. He claimed that the world was getting smaller and news spread faster. His grandfather[was] shot in a drive-by and was on the news. Asked if he had provided evidence of this, he said he hadn’t. It occurred 15 years ago. Asked if he mentioned this in his interview or in his statement and he said that he didn’t. He wasn’t sure which experiences he should share.
It was put to him that he had said what happened to him at school and being hit on the leg with a ruler yet he didn’t choose to mention his father’s brothel being shot up and it being on the news. He was presenting peripheral things and only raising this shooting after his visa application was refused. He agreed it was a big thing and said he wasn’t well prepared for the previous hearing.
He was asked if [his surname] was common and he said it was very rare and people knew where that person was from. He claimed that in a population of 85 million one would find [number] [people with that surname] maximum. Most people of this name belonged to his family and most lived in the area where he came from – they were geographically concentrated. He was asked why he moved to Istanbul and was targeted straight away – he said he wasn’t targeted for 6-12 months.
Asked why a university lecturer would care that much about his name that he would deliberately fail him. He claimed that people have different psychologies and some lecturers could be criminally minded and thought they had strength to do this. Two to three lecturers did this, not the others. Asked why he didn’t complain to these other lecturers about discrimination, and he said that discrimination wasn’t well accepted. It was put to him that he claimed it was his right for a re-mark but wasn’t given one so he could have complained.
He said he spoke to lecturers and administration and, even though it was his right they didn’t give him one. They were more connected with each other. Asked what reason the administration gave him for not giving him a re-mark given it was the rules, he claimed that he didn’t know and wanted to know why only he was singled out. Asked again what reason he was given, he said they believed the lecturer did what he needed to do. It was put to him that he hadn’t had a re-mark, and he said the administration said the lecturer had signed for the mark and they accepted this even though he was never given a re-mark. It was put to him that this didn’t make sense that they accepted his mark without exercising his right a re-mark.
He finished university in five years ([year]) and then he found it hard to get a job, particularly with branches in his home city because of his name. He was unemployed for three years – until 2013. Asked if he did military service, he said that he did and it was for a year within the period 2009-13. He was a lieutenant in the military but after the military the political issues came to the surface and he attended some anti-government protests. There was a coup in 2014 and he was part of this.
It was put to him that in his statement he said that after university he did some casual jobs and studied [which] meant that he wasn’t unemployed. He said that he couldn’t use his [Course 2] degree so he did some small jobs but for cash in hand. He agreed that he was employed. He then went to the military and was then employed not long after – he got this job by applying for an advertisement.
At work he was again singled out by his work colleagues and managers because of his name. Asked how he was employed if his name was so well-known, he said he was good at what he did. He was asked how his employer didn’t know about his name if university and everyone else did and the name was easily found on Google, he said it was an international company run by Turks. He said it was culturally more European and he thought he could get a job outside Turkey if he joined them.
Protests began and he started attending them – this was around 2014. The protests were about women’s rights. This was between May and August and he went to several in Istanbul. He was part of a political group – they were Republicans – they were FOTO. He was never arrested but there was evidence of his presence there on social media. He said the photos showed him as a part of the crowd and he was at a leading part of the crowd. He didn’t say it showed him as a leader, but he was trying to maintain it was a peaceful protest.

Asked why he didn’t mention this in his 2016 statement, he said he wasn’t experienced enough to mention it. It was put to him that it was an obvious thing to mention and it raised questions in the Tribunal’s mind as to why he didn’t. He said his brother-in-law was arrested and lost his job in the money. He said the authorities knew he attended the protests because he faced them at the protest. He was caught and had his military ID and he showed them – if one has military ID he can’t be arrested until they called someone of a higher rank.
He told them he was on a secret mission. He was asked why he had his military ID on him if he was on a secret mission given it wouldn’t have made it secret. He then said that his brother-in-law was charged with supporting the protests, not being at the protests. He was asked why the police, when he pulled his ID saying he was on a secret mission, didn’t just take him to the police station and sort out whether he was telling the truth or not. He claimed the police couldn’t touch him. It was put to him that it made no sense that they would accept a claim about him being on a secret mission without questioning him.
He said that he trained as a special forces person and when asked what unit, he then said he was in intelligence on the Syrian border and Turkish Cyprus. It was put to him that he never mentioned being in the special forces or on the Syrian border in his statement. He was asked if he had ever mentioned these things in his statement or at interview. He said that he hadn’t because he wasn’t supposed to still have the military ID but he didn’t hand it back. It was put to him that the protection process was confidential so there was no reason not to tell.
He lost his job because the company was pro-government, he showed some friends photos of him at the protests and the company found out and sacked him. This was in 2014, about 18 months before he came to Australia (he later said a year). He kept a low profile after this and he kept attending these protests (7 or 8 all up) and was looking for a solution to leave the country. He contacted a friend in Australia for a solution and stayed in coastal parts of Turkey.
Asked why he needed to lay low given he was never detained, he said that he was at the protests and some people knocked on his old apartment in Istanbul. He had moved out of the apartment and had moved everything out. This was between June and September 2014 – after this he lived in southern [Turkey]. He lived here for around a year, stayed in the forest for a while. He didn’t mention this in his visa application due to his lack of experience.
He closed his apartment as it was a rental when he left. Asked where he said he was living on his working holiday visa, he said he couldn’t remember. He came to Australia because a friend had moved here and wanted to come to a country that spoke English because he learnt it at university, and he may have further visa options such as protection. He waited for 10 months to apply for protection as he did all the research himself. It was put to him that this was a long time to research and he claimed that he didn’t have an international legal degree – it was put to him that he was university-educated and an intelligence officer so it was strange it took him this long if he was in genuine fear of his life in Turkey. He could have gone to a migration agent and he said he had no money. It was put to him that he spoke English and could have gone to the Immigration department – he said his English wasn’t that good. It was put to him he also had his close friend and the applicant said it was his responsibility and he didn’t want to share his personal details with his friend. It was put to him that he didn’t need to share his personal details, he just needed to find how to look up how to apply. He said he didn’t want to do this using his friend.
Asked if he had travelled overseas before, he said he went to [Country 1] in 2012 or 2013. He didn’t apply for protection then because he hadn’t attended a protest and didn’t know what to do. It was put to him that most of the claims he made in his statement relate to prior to his trip to [Country 1]. This raised questions in the Tribunal’s mind that the claims he made in the statement may not be true as he never sought protection in [Country 1]. He said he didn’t know about protection visas and started to research about how to legally emigrate. Asked why he didn’t approach an official at the airport in [Country 1], he said that he didn’t know to do this. He began to research protection and success rates in countries and [Country 1]’s wasn’t as high as other countries. Asked if he had mentioned this before, he claimed he didn’t.
Asked if he ever had problems leaving Turkey or returning to it, he said he didn’t. Asked why he thought they were interested in him given country information said that Turkish authorities did have good information systems at airports that highlighted wanted people, and that the claims he made in his statement pre-dated his departure for [Country 1], he claimed that the protests happened after this. Leaving for [Country 1] wasn’t a big deal.
He applied for protection in Australia because the Turkish authorities began arresting people at their houses. Asked why he thought all Muslims in Turkey would target him, he claimed the political view in turkey was closer to Islamic law than civil law. He was asked about the average person in the street. He said not all people but perhaps half the people would because of his political views and the way he expressed these ideas and his religion.
He said that he didn’t believe in the legitimacy of the government. Asked how he expressed this, he said via the protests. He was asked how people would know that he had protested and that there was no country information available to the Tribunal that indicated that Turkish authorities were interested in people who had attended protests in 2014. He again repeated that his brother-in-law was arrested a year ago out of the blue. He had private discussions with his brother-in-law and everyone with similar opinions were arrested. Asked what evidence there was, he said there were court cases and he was asked if he had any evidence of these cases and he said that he didn’t.
He was asked what he meant about his ‘lifestyle choices’ and after a discussion he agreed that it was poor terminology and he was referring to his political views. Regarding religion, he said he didn’t agree with practices of Islam but respected those that did. He was in the process of finding a new religious community, and asked what he meant by this he said he was now practising Judaism. He had not mentioned this previously but began four-five years ago, in 2017.
Asked what he meant by practising and what rabbi had instructed him, he said it was an ongoing process. Asked again the rabbi, he said he was connected with a synagogue at [Suburb 1]. Asked if he was able to provide a letter or witness that would indicate he was taking such instruction – he claimed he had been taking instruction for five years. He said he could provide specific proofs of this. Asked why he hadn’t already provided this, he failed to answer. He said he studied kabbala and he was again told the Tribunal needed to have some confidence that he was telling the truth. He said his girlfriend was pregnant and he would bring the child up Jewish. He then said his rabbi was [Mr A]. He didn’t invite the rabbi here as he thought what he was saying would be enough. It was put to him that it was reasonable to think that someone from Turkey with his protection visa application denied who was now claiming to be studying Judaism might ask for a witness to be present, he said that he didn’t think this was necessary.
He was advised about s 5J(6) and he was told that the Tribunal was concerned that he had never mentioned his study of Judaism previously, and it had only been brought up after the rejection of his visa and he had provided no supporting evidence. The Tribunal was concerned that he was simply raising this as a means of establishing a refugee profile. He had also introduced this claim late in the process and the Tribunal was concerned it was done without reason. He said it was raised because of his personal lifestyle choice and it aligned with his being – he didn’t make it to improve his refugee profile. He practised Judaism but wasn’t Jewish as someone had to be born. He would practice Judaism in Turkey.
Asked why he didn’t change his name in Turkey if it was problematic, he said he didn’t know the process and hadn’t researched it but then said it took years to do it through the court. He was told about s 424AA and it was put to him that one could change their name in turkey but had to go to court to do it. The fact that he never researched the way to change it raised questions in the Tribunal’s mind that, if his name was the central element of his claim of persecution and yet he never researched how to change it, it may call into question the truthfulness of his claim.
He stated that changing his name before he attended the protests may have helped the discrimination he was subject to, however after the protests he was in fear of his life. Changing his name just changed the name and his fear was of the government itself – if he ever entered a government building he would still [have his surname]. It didn’t help.
Also under s 424AA the Tribunal had quickly looked at social media and [the surname] appeared to be quite a common name and they were all over Turkey. This meant that the [the named person] he claimed was referred to in the drive-by shooting could have been unrelated to him, and also called into question why the university in Istanbul would assume he was related to a brothel owner in a city hours away by car from Istanbul. The Tribunal was concerned that the name wasn’t geographically constrained or that it was associated with the brothels. He claimed that the name [wasn’t] his primary fear any more and now it was political and religious.
Under s 424AA it was also put to him that in his interview he claimed it was completely unreasonable to expect him to have to cut his hair or to remove his piercings if he were to return to Turkey yet at the hearing today he presented with neatly groomed short hair, no piercings and wearing a suit. What he had previously claimed was fundamental to his identity was no longer and he appeared willing to change things as it suited him, not based on a firm conviction. This went to issues of his credibility. He said the point he was making was harassments he was receiving for his looks and lifestyle. He wore what he did out of respect for the court. It was put to him that he had previously said the piercings and long hair was fundamental to his identity. He said that was correct on the day he said it but nothing is fundamental. He could change it.
Also under s 424AA the interviewer had been sceptical about his claim to have backpacked around Turkey prior to coming to Australia. The applicant told her that he had left his apartment in Turkey but kept his belongings there as a safe place and then sub-leased it out to some Syrian refugees. This was how he afforded the money to come to Australia. Today he said that before he went around Turkey he had moved and cleared out his place and handed the keys back to the landlord.
He said that he had a few months on his lease and rented that room to Syrians studying at [school]. This was for about four months. The Syrians told him about the person knocking at his door. It was again put to him that this was different to what he had said today. Asked why he hadn’t mentioned the Syrian refugee today and said that he had handed over the keys. He said he only rented it for a few weeks – it was put to him that he had previously said four months. He claimed that he wasn’t exact with timeframes and had forgotten.
Also under s 424AA the concerns about his delay in applying for protection and his inability to apply in [Country 1] were raised with him and he claimed that he knew that one could come by boat to Australia, but he was intelligent enough to know that you could fly. This would indicate that he knew he could apply for protection before he arrived, which was different to what he claimed to the Tribunal earlier today and this could go to issues of his credibility.
He initially said he didn’t remember saying this, and then that he knew one could apply for protection in Australia but he didn’t know how and agreed that it took him 10 months. Asked why he didn’t research the method of applying for protection in Australia, he said it wasn’t his priority – he wanted to get out of the country first. It was put t him that he was university-educated and had been in military intelligence so the fact that he didn’t seek to research how to apply for protection in Australia was strange. He said that he researched international refugee law. It was put to him that it took him 18 months to leave Turkey so he had plenty of time to do some internet research or ask his friend in Australia. He said this was true but he wanted to be right when he applied.
Asked how often he went to synagogue, he said that he was there the day before in [Suburb 1] but lived in [Town 1] and practised with his godmother and celebrated holy days. He had been doing this since 2017. He didn’t go to synagogue to pray as he was still learning and he didn’t live in Sydney. Asked why he would seek to practise it in Turkey if his godmother wasn’t there, he said that he had a Star of David tattooed on his [body] 18 months previously in [Town 1].
It was put to him that nobody could see it, so why anyone would think he was Jewish of wasn;t attending synagogue. He said they might not know for 6-12 months but the risk would be ongoing and he accepted to choose this path. Asked how anybody would know given he didn’t attend synagogue. He said that they would because he talked about it. Asked if he had a social media page, he said that he did but it was in his nickname and his name was there. Asked what name the site was under, he said that it was [deleted]. It was put to him that he was just presenting with new claims and not presenting any evidence to support this.
The concern was that he was telling different stories to different people and that he was never politically active or wanted for any reason in Turkey, and he was creating new claims after having his previous claims rejected. He was told about s 5J(6) and the concern was that he had created such a social media page to create a refugee profile. It was also put to him under s 424AA that country information indicated there were billions of social media pages in the world, and the Turkish government didn’t look at all of these, so just having such a page didn’t mean the Turkish government would know or care about his site given he had no previous profile.
He said that his page would have personal data including his surname – he began this page in 2016, prior to having his interview. Asked if he ever mentioned this to the interviewer, he said he didn’t. Asked when he began posting about Judaism, he said that he spoke about his beliefs rather than Judaism itself. This was begun about 18 months ago, after his visa was rejected.
He agreed there were lots of social media pages but he believed the chances of it being found and of interest to the Turkish authorities were more than 50 per cent. He estimated this because he shared a lot on social media. Asked what he shared, he said he shared his beliefs – he normally used [a particular social media site]. He was given until the 19 October to provide any additional information he wanted the Tribunal to consider.
CONSIDERATION OF Claims and evidence
The applicant arrived in Australia on a working holiday visa in October 2015 and applied for protection in September 2016. He is a [age] year-old Turkish male – I have sighted a copy of his passport and accept that Turkey is the applicant’s country of nationality.
He claimed that if he returned to Turkey he would be tortured by Turkish officials and Muslim citizens because of his ideas about government and his religious beliefs. To the extent that it is relevant I have taken into account the September 2020 DFAT Country Information Report – Turkey.
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 all of his claims in order to be granted a protection visa.
Well-Known Family Name as Brothel Owners
I do not accept that the applicant’s family name was very rare, there were only [number] people of this name in the whole of Turkey, most belonged to his family and they were geographically concentrated. A perfunctory internet search of social media showed that it appeared to be quite a common name and that people with this name appeared to come from all over Turkey. When this information was put to him he then claimed that the name was no longer his primary fear any more and that his fears were now political and religious. This of course did not address the obvious discrepancy between his claim regarding the rarity of the name and the reality that social media showed.
I also do not accept that the applicant’s father/grandfather owned and operated brothels, and because the family name was well-known as being associated with these brothels, other children didn’t want to play with him at school, a teacher hit him on the back of his legs with a ruler, one teacher beat him non-stop for 45 minutes in front of the class, he was beaten by boys who followed him into the toilet, families asked that he be put into another class, physically harmed by other university students or deliberately given failing grades by some university lecturers, singled out by work colleagues and managers because of his name, or that his grandfather’s brothel was shot up in a drive-by shooting.
All of these claims are entirely uncorroborated and therefore rely solely on the applicant’s oral testimony. I have already noted the applicant’s false claim regarding the rarity of his name. There are also claims that lack credibility entirely – the idea that a teacher would assault a student for 45 minutes in front of the class, or that university lecturers from a university in Istanbul would deliberately fail a student from a city four to six hours away simply because of their name is implausible. The applicant was asked why he didn’t ask for a re-mark (he claimed that it was his right) and he was vague in his response, being evasive and then simply saying that the university administration simply accepted the lecturer’s mark.
I do not accept that the applicant’s father assaulted the teacher involved in beating the applicant in middle school, or that his grandfather’s brothel was the subject of a drive-by shooting. Neither of these were mentioned in the applicant’s statement. Given he mentioned being hit on the back of the legs with a ruler in primary school, his inability to include more contemporary and more serious incidents does little to reassure the Tribunal that such claims are true. I do not accept that the applicant was unsure which experiences to share – he is a tertiary-educated adult and the relative seriousness of each claim is easy to discern.
I also do not accept that he was unemployed for three years after university because it was hard to get a job owing to his name. This was inconsistent with his claim in his written statement that said following university he did casual jobs and [studied]. He agreed that this meant he wasn’t unemployed. I also note that he made no mention of being unemployed on his protection visa application.
Other significant reasons why the Tribunal does not accept that his name was the source of serious harm in Turkey was the fact that he never attempted to change it, and he never applied for protection when he travelled to [Country 1] and his delay in applying for protection when coming to Australia (nearly a year after he arrived).

Regarding his failure to change his name, he initially said that he didn’t know the process and hadn’t researched it, but then claimed that it took years to process through the courts. Country information indicates that it is possible to change one’s family name through the court[1], so his lack of interest in even finding out how to change his name is again indicative that his name was of no concern to him.
[1] The surname law: A profound change in Turkish history | Daily Sabah, accessed 2 November 2022.
The applicant’s failure to apply for protection in [Country 1] when he went there in 2012/13 is further indication to the Tribunal that he had no fear of serious harm because of his name at the time he went there. I don’t accept that he didn’t apply because it was prior to his alleged attendance at protests, given at this stage he was still claiming to fear serious harm because of being persecuted due to his name. Nor do I accept that he didn’t know about protection visas or what to do.
Given he was at this stage tertiary-educated and allegedly served as an intelligence officer in the Turkish military, his inability to do some basic research into possible protection options in [Country 1] prior to travelling lacks credibility. Nor do I accept that he began to research protection and the success rates of applications in [Country 1] weren’t as high as in other countries. Not only is this inconsistent with his claim that he didn’t know what to do, he had never mentioned this research previously.
Political Activism/Attendance at Protests
I do not accept that the applicant was ever politically active in Turkey or took part in any political protests there. To begin with, although he claimed that he attended protests in 2014 and had to talk his way out of being arrested, he never mentioned any of this in his 2016 written statement. I do not accept that he wasn’t experienced enough to mention it. The two and a half page statement made mention of some quite minor issues, and it lacks credibility that he would have failed to mention his attendance, and interaction with security authorities at protests, if such events had occurred.
The applicant also claimed that there was social media evidence of his attendance, however none was ever provided even thought the applicant was given additional time post-hearing to provide any additional information. His account also lacks credibility. He claimed that he was caught during the protests and showed the authorities his (former) military ID. I do not accept that he wasn’t arrested because they couldn’t do it until someone with a higher rank was called, or because he told the police he was on a secret mission.
It lacks credibility that a person on a ‘secret mission’ would be carrying their military ID given this would compromise its secrecy if found, and a former lieutenant (the lowest officer rank - he had also been out of the military for several years by this stage) claiming to the police to be on a secret mission would presumably have raised the interest of the police and they would have at least taken him to the police station so they could verify his claims, rather than just letting him go.
Because I do not accept that the applicant was ever politically active or attended any protests, I do not accept that he lost his job because he showed friends photos of him at the protest and the company found out. This was never mentioned in his statement, nor have any photos been provided to the Tribunal.
Nor do I accept that he had to lay low because people came looking for him at his old apartment in Istanbul following the protests and that he then moved out and backpacked around Turkey, or went to the south and lived at different places including in the forest. To begin with, this was not reflected in his protection visa application, which indicated that he lived at the one address in Istanbul from July 2012 until July 2015 and then one address in Balikesir from July to October 2015.
He was also inconsistent in his story, claiming at hearing that he moved out of his apartment entirely, handing the keys back to the landlord. In his Departmental interview however, he claimed that he left the apartment but kept his belongings there so he could maintain it as a ‘safe place’ and sub-leased it to some Syrian refugees. When this inconsistency was put to him he then claimed that he rented it to some Syrians studying at [school] for four months. He later when questioned said t was a few weeks. I do not accept that the inconsistencies were due to his forgetfulness or problems with timeframes – the Tribunal’s view that this claim has been fabricated is also supported by the fact that he never made any mention of this in his written statement made as part of his protection visa application.
Because I do not accept that the applicant has been active politically in anti-government demonstrations or organisations, or is or would be perceived to be anti-government, I do not accept that all Turkish Muslims (or even 50 percent) would target him. He provided no corroboration, or even basis for such a view other than to offer that the political view in Turkey was closer to Islamic rather than civil law. This is neither a coherent or well-presented or supported argument, rather it is simply an opinion offered at hearing.
Given the applicant’s lack of credibility concerning his political and other claims, I do not accept that his brother-in-law has also been arrested, given it relies entirely on his uncorroborated oral testimony.
Appearance
I do not accept that the applicant was threatened for having long hair, [piercing] and a tattoo, nor for his ‘lifestyle’ (taken to refer to his respect for, but non-belief in Islamic practices and his political views). The claim to have been threatened relies entirely on his oral testimony which I have found lacks credibility. He also provided no country information, nor was any available to the Tribunal, that would indicate that long hair, piercing and tattoos attracted attention from civil society or the authorities in Turkey. The member’s own experience over decades (including recent experience) is that in a large city such as Istanbul (population approximately 15 million) that people adopt a wide variety of appearances. He was also vague in what he meant by ‘lifestyle’, however those elements that he enunciated have been dealt with in the politics and religion sections.
At his interview he claimed that these grooming features were fundamental to his identity and that it was unreasonable to expect him to have to cut his hair or remove his piercings. I note however that at hearing he was neatly dressed with short hair, no piercings nor any visible tattoo. When the change was put to him he claimed that nothing was fundamental and that what he said was correct on the day.
Given this, I do not accept that the applicant has any immutable grooming principles and that he is happy to change from his former unkempt look to his current neat visage and there is no indication that he will change this in the reasonably foreseeable future. Given I have found that neither an unkempt or neat look is of interest to the Turkish authorities or society, I am satisfied that there is no real chance that the applicant will suffer serious harm for whatever grooming style he adopts in the future.
Religion
I accept that the applicant is a non-practising Muslim. He offered no country information that he would suffer serious harm for being so. Constitutionally Turkey is a secular country and the applicant says that while he didn’t agree with the practises of Islam he respected those that did. Given this, and the lack of supporting evidence provided by the applicant or available to the Tribunal that indicates non-practising Muslims are targeted by authorities or civil society, I am not satisfied that there would be a real chance that his status as a non-practising Muslim would bring him to the attention of the Turkish authorities, nor of broader Turkish society. I do not accept claims that he made regarding being threatened by his neighbours because of the lifestyle he lived in a family area, or being attacked by masked men when arriving home. They are both reliant on his oral testimony which I have found lacks credibility
Given the applicant’s lack of credibility as a witness with respect to all the claims made to date, the timing of his alleged interest in Judaism following a negative Departmental decision on his application raises questions in the Tribunal’s mind as to his motivation for doing so. He claimed that he went to synagogue in Sydney, practised with his godmother, celebrated Jewish holy days, had a Star of David tattooed on his [body] 18 months ago and studies kabbala under Rabbi [B]. Given the lateness of this claim and the absence of supporting evidence, I am satisfied that he did this solely for the purpose of enhancing his claim for protection and, as the applicant was advised and s. 5J(6) requires, I will discount these actions in determining his claim regarding real or perceived interest in Judaism.
Other Issues
The 10-month delay in applying for protection in Australia once he arrived, given the fears he claimed to have as a result of his surname and his alleged political activities, raises further concerns in the Tribunal’s mind as to the truthfulness of his claim. I do not accept that this delay was because he had to do ll the research himself and didn’t have an international law degree, had no money for an agent, didn’t have good enough English to go to the Department and ask them, and didn’t want to share his personal details withy his friend who was in Australia.
Besides the fact that the Department could have found an interpreter for him if required, and the fact that he could have asked his friend for help without the applicant revealing personal details, the applicant was previously asked by the Department at interview and he said that he knew one could come to Australia by boat to apply for protection but he was intelligent enough to know you could fly here which would indicate that he was planning on applying for protection when he came here which makes the delay in applying even more strange. I do not accept that the 10-month delay was required to find out how to apply. Given his education level he could have found out in a day or two, rather than 10 months.
I also do not accept that the applicant was ever beaten by the family of his ex-girlfriend in 2005 because of the way he looked, or that he was physically attacked by men in masks near his house in 2014 and that they told him he should move, or that on reporting the incident to police he was told that it was his fault because of the way he looked and thought. I have already made a finding regarding the lack of evidence that an individual’s grooming would result in serious harm for s 5J purposes, and I note that both of these alleged incidents rely entirely on his oral testimony which I have found lacks credibility.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Although I have disregarded the applicant’s claimed interest in and study of Judaism for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s. 36(2)(aa). I do not accept that the applicant is, or would be perceived to be Jewish or interested in Judaism if he returned to Turkey. Despite having claimed to commence study into Judaism from 2017, he never provided any supporting evidence such as a witness or even a letter from the rabbi he claimed was teaching him. He claimed to be able to provide proof and was given time post-hearing to do so, however he never did.
He also claimed to have [a social media] page and intimated that references to Judaism were on it, however, when pressed he said he spoke about his beliefs rather than Judaism. He provided no evidence of any social media interaction post-hearing despite being given the opportunity to do so. I accept that he may have a form of a Star of David on his [body] however he was clothed and it wasn’t visible. Given this I am satisfied that it will remain unseen in general but even if it was seen, given I have not accepted that he is studying or has studied Judaism or would be imputed with doing so, I am satisfied that he would not be imputed with being a Jewish convert because of it.
Because I do not accept that the applicant’s family name was associated with brothel ownership and he was dealt with harshly because of it, that he was ever politically active/attended protests, was targeted because of his personal appearance or would be targeted for being a non-practising Muslim, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

100. As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
101. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision

104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 5033

8 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction