1816238 (Refugee)

1816238 (Refugee) [2022] AATA 1740 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816238
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Nora Lamont
DATE:4 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants –applicants two and three satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
(iii)   the Tribunal affirms the decision not to grant applicant four a protection visa.

Statement made on 04 April 2022 at 8:18am
CATCHWORDS
REFUGEE – Protection Visa – Turkey – religion – fear harm for being Alevi – loan shark – holds anti-government views – tax bills – have been in Australia for 13 years – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 10 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Turkey, applied for the visas on 23 May 2016.
On 9 December 2021, the applicants appeared before the current Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicants were represented at this hearing and in relation to the current review by their registered migration agent.
Summary of Decision Record
The delegate considered the following circumstances when determining the credibility:
·The applicant did not declare his alleged business until after his unsuccessful Ministerial Intervention request.
·The applicant gave contradictory evidence about the business not being a going concern and for tax purposes – conversely claiming that the business was growing, employing staff, and winning tenders.
·The applicant did not advise the Minister in 2014 of fear in returning to Turkey, and the delegate rejected his claim that his migration agent told him not to advise the Department.
·That the second applicant was not an applicant in her own right despite also being an Alevi, and the applicant’s claims that Alevi’s are being targeted for harm. The applicant claimed he did not want to frighten his wife with the details of the threats, so she could not verify his claims.
·The applicant stated that he did not declare his business to the Department because his brother in Australia told him it may negatively influence the Department’s decision to grant him a visa.
·The delegate thought it implausible that the applicant started and built a business into a going concern in the few months prior to submitting his visa application to come to Australia.
·The document provided by the applicant which he claims proves that he was sentenced to 3 months imprisonment showed a conviction date of [date]/10/2008, which contradicts the applicant’s claims to have only received this document after the refusal of his application for Ministerial Intervention in 2016. The delegate noted that if this document was legitimate, this means the applicant was issued with a Turkish passport two days after he was convicted of a crime and sentenced to 3 months imprisonment, and that he was permitted to leave Turkey four months later with a criminal record. The applicant agreed at interview that he would not have been able to leave the country if he had been sentenced to a term of imprisonment prior to his departure. The delegate stated that the fact the applicant had been able to depart Turkey unhindered indicated that the applicant was not of interest to the Turkish authorities as claimed.
·The applicant claimed to have repeatedly approached the Turkish Consulate in Melbourne to renew his passport and to vote in the Turkish elections, and to ask them to check if there was anything negative on his record. The applicant further claimed that the Turkish authorities located something negative the last time he went there around 2016. The delegate noted that the Turkish elections were in 2015 and 2016, which would mean that the applicant would have known about his negative record before receiving his Ministerial Intervention outcome and could have informed the Minister of his situation if he so wished.
·The applicant advised the Department during his 2014 Ministerial Intervention interview, that he did not fear returning to Turkey and this is consistent with applicants 2, 3 and 4 returning to Turkey for 3 months in 2012. At the time of the interview, the applicant was advised that the Minister only intervenes in unique circumstances and he would have to depart if his application was unsuccessful. The delegate was satisfied that the applicant was not prevented in any way of advising the Department of his fears in returning to Turkey and therefore rejected the applicant’s claims he withheld this information based on poor migration.
·The applicant provided a business card and his own personal debt to the tax office as proof that he owned a business. The delegate was prepared to accept that the applicant personally owed money to the [tax office] and that he had approached the office to arrange a payment plan. The delegate noted that there was no evidence the applicant owes money to a loan shark.
·The applicant claimed to be an Alevi and knew about the Alevi centre in Melbourne. There was an absence of evidence before the delegate to indicate that the applicant was not Alevi as claimed, but the delegate noted that the applicant’s claims to fear harm for being Alevi were related to his alleged business. The applicant claimed that his wife (the second applicant) is Alevi but had not faced the same issues because she remained in their Alevi neighbourhood. However, according to the information in the second applicant’s form, she worked for the same business as the applicant prior to travelling to Australia. Therefore, the delegate stated they would expect she would also be targeted for being Alevi. The delegate noted that country information suggested that Alevi’s in Turkey are generally free to practise their faith, express their identity, find employment, and achieve political representation, and the community are at low risk of violence on the basis of their religion.
·The above being the case, the delegate was of the opinion that the applicant did not need to relocate to avoid harm as he had consistent work in his field and had been steadily employed in the same field for many years.
·The applicant provided a psychologist report which indicated that he had been receiving treatment since August 2017, and the delegate noted that the applicant did not commence treatment until 16 months after he was refused Ministerial Intervention. There was no evidence before the delegate to suggest that the applicant could not seek appropriate medical services in Turkey if he were to return, and the delegate noted that the applicant’s wife had work experienced that would enable her to financially support the family if the applicant was not well enough to return to work immediately.
The delegate ultimately found that the applicant was not a refugee nor owed protection under complementary protection.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
Applicant One: [Mr A]
The applicant claims to be a Turkish male born in Ankara, Turkey. He claims that he travelled to [a country] during his transit, before arriving in Australia. He identifies as being of the Alevi religion. He claims to speak, read, and write in the Turkish and English languages.
His immediate family consists of the other three review applicants, being his wife [Ms B], and daughters [Ms C] and [Ms D] who currently reside in Australia. He lists his previous employment as working as a [Occupation 1] in Turkey and Australia. He completed up to a [qualification] in Turkey. He married the second applicant on [date] July 2001 in [Turkey].
Applicant Two: [Ms B]
The applicant is the partner of the first named applicant and claims to be a Turkish female born in Yozgat, Turkey. She identifies as practicing the Alevi religion. She claims to speak, read and write in the Turkish language.
She lists her previous employment as working in [Occupation 2] whilst living in Turkey. She completed her secondary education in Turkey, with a focus on [this occupation].
Applicant Three: [Ms C]
The applicant is the daughter of the first and second applicants and claims to be a Turkish female born in Antalya, Turkey. She claims to practice the Alevi religion. She claims to speak, read, and write in the English language, and speak in the Turkish language.
Her family consists of the other three review applicants who currently reside in Australia. She lists no previous employment due to being a child. At the time of the PV application, she was in the process of completing secondary school in Australia.
Applicant Four: [Ms D]—CITIZEN
Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa has been satisfied.
Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s.4 and s.29 of the Act). The issue in this case is whether the applicant is now an Australian citizen.
The applicant [Ms D] was born in [Victoria] Australia on [date] and became an Australian Citizen on [date]. On 2 December 2021 the Tribunal received a birth certificate and a citizenship certificate for the applicant. [1]
[1] AAT Folio 2 December 2021
The Tribunal is satisfied on the evidence before it that the applicant is now an Australian citizen. It follows that the applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.
Country of reference
The applicants provided the Department with a certified copy of their Turkish passports on application and satisfied the delegate as to their identities.
In the absence of any evidence to the contrary, the Tribunal accepts that the applicants are citizens of Turkey and as such their protection claims will be assessed against Turkey as the country of reference and ‘receiving country’ respectively.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country and, therefore, the Tribunal finds that they are not excluded from Australia's protection obligations under s.36(3).
Migration History
The migration history of the applicants is set out in the Protection Visa Decision Record, and extracted below:[2]
[2] Protection Visa Decision Record, p.3.

Date Event details

01/10/2008 Nomination by an Australian business approved with the Nominee being [Mr A] and his dependant [Ms B]

[date]/[month]/2008 The applicant and Applicants 2 and 3 were granted a 1 year Turkish passport

22/11/2008 The applicant applied for a UC 457 (Temporary Work -Skilled) visa with Applicants 2 and 3 as his dependants

13/02/2009 457 visa granted

[date]/03/2009 The applicant, Applicant 2 and 3 arrived in Australia.

01/02/2010 Applicants 1, 2 had their passports extended until [2011].

[date] Applicant 4 [was] born in Melbourne. Applicant 4 was granted a UC 457 visa as her father’s dependant.

04/01/2012
Applicant 2 was issued with a Turkish passport, valid until [2021]

Applicant 3 ([Ms C]) was issued with a Turkish passport, valid until [2017]

19/04/2012 The Applicant was issued with a Turkish passport, valid until [2021]

21/05/2012 Applicant 4 was issued with a Turkish passport, valid until [2017]

[date]/06/2012 Applicants 2,3 & 4 travelled to Turkey to visit Applicant 2’s ill mother

[date]/09/2012 Applicants 2, 3 & 4 arrived in Australia

08/02/2013 The applicant applied for a UC 457 visa with applicants 2,3 and 4 as his dependants

25/06/2013 457 visa refused – failed to provide evidence of vocational English

04/07/2013 Appealed 457 refusal to the Migration Review Tribunal (MRT)

[date]11/2014 MRT affirmed the Department’s decision.

05/12/2014 Submitted request for Ministerial Intervention (MI)

16/12/2014 The applicant advised the Department that he and his family were able to return to Turkey but would have difficulties adjusting to the lifestyle there.

21/04/2016 MI outcome – not referred.

23/05/2016 The applicant applied for a XA-866 Protection visa, with Applicants 2, 3 and 4 as his dependants without claims of their own.

August 2017 The applicant commenced attending psychological treatment

22/03/2018 The applicant attended an interview to discuss his protection visa claims. The applicant was represented by his migration agent and assisted with language by a Turkish speaking interpreter.

23/03/2018 The applicant’s migration agent emailed a copy of the applicant’s marriage certificate and Applicant 4’s birth certificate.

23/03/2018 The applicant’s migration psychological report. agent emailed a copy of the applicant’s
Claims

The applicants’ claims are shared upon the claims of the first applicant – [Mr A]. These claims are contained within the Statutory Declaration of [Mr A] declared on 31 January 2017, the Statutory Declaration of [Mr A] declared on 23 May 2016 and the claims made at the PV interview on 21 March 2018. These claims are summarised in the Protection Visa Decision Record by the delegate, and extracted below:
·He is an Alevi [Occupation 1] who went into business for himself in July 2008. Initially customers did not know his religion but four months later his Alevi identity became known, and he suspects that is why he started having problems with suppliers and failed to secure tenders.
·He would attend Friday prayers to pretend that he was Sunni Muslim, but he was met with unwelcoming behaviour.
·He employed staff from Kurdish backgrounds but had to terminate their employment after being threatened with harm by men dressed in mafia styled clothing who did not want him to employ Kurds.
·Despite this he was able to secure a contract with [Company 1] by offering to pay an amount up front and then in monthly instalments. With this contract he was able to secure supplies.
·When [Company 1] stopped paying the applicant, he investigated the situation and found out that the company did not exist, and he would not be able to take them to court over his debt. He later found out that [Company 1] was a proxy entity for the Gulen movement. The applicant has since found out that people who did business with [Company 1] are being investigated for links to the Gulen movement after the recent failed coup.
·As the applicant was unable to pay his debts and his father was unable to assist him, sheriffs attended his business and temporarily took possession of some of his equipment threatening to take all the equipment if he did not repay his debts.
·In order to repay his debt, the applicant approached a loan shark and borrowed [amount] Turkish Liras.
·After one of his employees was assaulted over his debt to the loan shark, the applicant asked his brother in Australia to assist him to come to Australia.
·In the meantime, the applicant borrowed more money from the loan shark but then started defaulting on those repayments.
·He came to Australia with the hope of setting up a new life but due to a series of visa related misfortunes beyond his control he was denied permanent residence.
·When he realised that he would have to leave Australia he had no choice but to apply for protection because when he fled Turkey, he did not officially wind down his business and he has been sentenced to a term of imprisonment and presented with a large tax bill.
·He fears that if he returns to Turkey he will be arrested and imprisoned and if that happens, he will be killed because the mafia can find him even if he is in prison and they have asked his father about his whereabouts.[3]
[3] Protection Visa Decision Record, p.5.

At interview, the applicant also advised the delegate that he had been depressed in the last six months during the visa process, and his representative provided a psychological report on 26 March 2018 in support of this claim.
The delegate notes in the Decision Record that the following claims were discussed at the interview:
·why his wife was not an applicant in her own right if she has the same religion and he is claiming that Alevi’s are being harmed,
·how his wife and children were able to return to Turkey without being harmed if they are Alevi,
·why he did not inform the Minister of his fears of returning to Turkey,
·why he did not declare his [business] to the Department in the past,
·information in his Protection visa application and supporting documents which contradicts his claims,
·why he informed a Departmental officer in 2014 that he could return to Turkey and the only issues his family would face would be adjusting to the lifestyle,
·how he was able to leave turkey if he had been convicted of a crime in 2008 and why he repeatedly failed to declare this conviction to the Department,
·his new claim that he constantly asked the Turkish Consulate if there was anything negative about him on his file,
·his actions of renewing his passport at the Turkish Consulate.[4]
Tribunal Hearing
[4] Protection Visa Decision Record, pp.5-6.
The applicant spoke of first arriving in Australia as the holder of a 457 visa. His brother sponsored him. He said there was some issue with which company he worked for and he wasn’t sure about what the reasoning was. The decision was affirmed at the AAT and the applicant applied for Ministerial Intervention which was not considered.
I asked the applicant if he applied for a Protection Visa because he had run out of options. He said that he thought the first visa he had would see them staying here. His lawyer suggested the Protection Visa after he told them what would happen if he returned. I asked him why the delegate said you weren’t fearful of returning to Turkey. The applicant said it must have been a misunderstanding.
The applicant stated that his business started in 2005 not 2008. The business was growing so we became a company and had employees. There was about 2-3 people working and then grew to 4-6 and we did domestic then commercial work and tenders. I asked if his wife was working there as well? He said she came for a short time but had children at home and he didn’t want her to see too much of what was going on.
Then the applicant got into some trouble. I used to hide that I was Alevi as they are more left wing because in Turkey it is more Islamic, and they didn’t look at us kindly. I asked him about a contract he had with [Company 1]. He did finish two jobs for them. They gave him a small deposit and then made an instalment plan over a couple of years and then the payments fell through and they didn’t pay. I went to their company and they changed their name, and the company was gone so I went to a solicitor. They only paid about 10-15% of what they owed. I gave them the materials. He was unable to pay back for the materials he got in advance.
Then he found out that the business was just a front, or they just ran off he wasn’t sure. They did the same thing to this other person. He said they were a proxy movement for the Gulen movement. I asked how he knew this? He said after the coup they were all under investigation. I asked if he knew this before he took out the contract. He said no it was just business. I asked how he knew they were a front for the Gulen movement? He had business associates and they told me, he heard the government had their hands in it, closing the business. I asked if he had access to an ombudsman or a court that could handle the payment issue for him? No, he went to the solicitor and that is when the solicitor said there is no such company therefore there is nothing we can do.
I asked why he stated that he hired Kurdish people and why he had to fire them. He said that mafia style men came to his workplace and threatened him, they were telling him not to employ the Kurdish people. He was under a lot of pressure.
He said that he had to pay the suppliers, or his business would close down. So, he borrowed from a money lender named [deleted] 80,000 and used his equipment as collateral. The interest rate was 50-60% it was so high. He wanted me to pay on a monthly basis including the interest. Initially they didn’t threaten him but when he couldn’t pay, they started to threaten him. On one occasion an unusual looking man came in and he told the boys to tell him I wasn’t there. They tried to get into his office but couldn’t and they assaulted his employee.
I asked about the Sheriff coming and taking some of his property. He said it was because he didn’t make the payments on the equipment. It was a company I got equipment from so they would have got the sheriff to get payment from me via the equipment and supplies. They took part of the machinery and if I could make payments, I could get some equipment back.
He then went back to the money lender and borrowed more money about [amount] to pay back the suppliers. I asked him if he filed for bankruptcy. He told his accountant to close the company as he was receiving threats. After the employee was assaulted, I called my brother and told him what happened, and he applied for sponsorship. In a short time, they were able to get their passports it was like they were running off. I gave my father authority to close the company with the accountant and my dad said he spoke to him and it was closed but apparently, he didn’t close it.
I asked him about his big tax bill. He said it just piled up year after year. I asked if he paid it off. He said they arranged instalment payments. I paid it but it was high, and my father said why pay it if you are not coming back. I then asked him about his prison sentence. He found out about it in 2012. I asked if that was in relation to his tax debt? The sentence was for not closing his company and the accountant blamed him saying he didn’t get paid. The accountant tried to clear himself, so he blamed me. The accountant hired his own brother as the solicitor.
I asked him then if he knew before he left for Australia that he had a prison sentence. He said he didn’t. I told him I was confused because wasn’t he still speaking to the accountant at this time? He said yes, he was but he was able to travel and leave the country so it must have been a slow process. I asked him how it was that the date on the warrant was 2008 yet he was able to leave the country as DFAT reports there are checks at the airport and he would not have been able to depart.[5] He said exactly, he just thinks the process was slow.
[5] DFAT Country Information Report Turkey September 2020.
I asked him if anything ever happened to his accountant or solicitor? He said he hasn’t spoken to them since 2008 and only enquired about them through his father but he wasn’t planning on going back so he didn’t really follow up. He said he found about his prison sentence when he went to renew his passport. The consulate told him to look up his details on a portal that is similar to MYGOV.
I asked him what he thought would happen if he was to return to Turkey tomorrow. He said he would be arrested as soon as he arrives. I asked if his father was contacted about him and he said a few years ago some undercover cops came to see him, and they wanted to know where he was. He didn’t know if they were real police or mafia, but his father told him not to come back. His father has since moved. They also contacted his sister by phone saying they were police. She has also moved two times.
I asked if where he lived and had his business was an Alevi area or a mix of religion. He said he never identified himself and stayed in their house. In Antalya there wasn’t that many Alevi’s. I asked him about why he said he prayed at the Mosque like a Sunni so no one would know he was an Alevi. One of my workers said let’s go to the Friday prayers so people see you praying. I read him country information that Alevi’s face a low level of discrimination, that they are able to worship freely, and they are able to participate in politics.[6] The applicant said that wasn’t true have a look at Istanbul and what happened its in the media. He said they also threw stones at his workplace and said piss off Alevi. What about in your neighbourhood—did you have issues? He said no not much as they just went to work and came home.
[6] DFAT Country Information Report Turkey September 2020.
I asked if he felt discriminated against on a daily basis for being Alevi? He said no but during bad times he did. The media just says it’s hoodlums causing trouble and the government pretends it doesn’t happen.
I asked him about when his wife and daughters returned to Turkey in 2012 for three months. He said that her mother was dying, and she was not in a psychologically good place. He didn’t want her to go.
I asked him about when he became political. This is somewhat of a new claim as I did not see these claims in the Department file. The applicant said that he felt free here to express himself. I asked him about the [social media] posts and whether this was something he did all the time or only when something happens in Turkey. People warned me but I didn’t think that I was going back. I am now on the list in Turkey. I asked how he knew that he was on a list or that he should not return. He said they don’t know specifically, and they don’t know, they say the phones are tapped. This government is a dictator. I asked if he thought this was always going to be a problem. He said there has always been attacks on Alevi’s. The applicant said he attended some protests in Australia.
I spoke with the applicant’s wife a secondary applicant. She steered clear of incidences and took care of the children. She said hearing all of this has been difficult for her. Her children are safer here in Australia. For women and children, it is much safer in Australia. There are lots of rapes and assaults. To make things worse we don’t know what will happen to her husband should she go back. The applicant’s daughter [Ms C] spoke to the Tribunal she has recently graduated from secondary school. She has completed 13 years of school and she wants to go to university here.
The Tribunal also took evidence from two witnesses. [Name deleted] the applicant’s Aunty. She explained that the Alevi’s are more left wing and that they have been involved in politics since and early age. She said there is no democracy in Turkey, and we are fighting for democracy and equality, but they are trying to bring in the Islamic laws which is not good for women and children. There is lots of violence against women. The applicant’s cousin [also] spoke in support of the applicants and their need to stay in Australia.
Country Information
The Tribunal has regard for current country information. DFAT reports:
Alevi’s
In the absence of official figures, estimates of the size of the Alevi population vary considerably,
although most credible estimates are between 10-25 million. Many Alevis are also Kurds, although estimated numbers again vary considerably (between half a million and several million). DFAT understands Kurdish Alevis are more likely to identify primarily as Alevi. While Alevis are widely distributed across Turkey, they are concentrated in central and inner-eastern Anatolia, Istanbul and other major cities. Tunceli is the centre of the Alevi faith, and its population is overwhelmingly (95 per cent) Alevi. Ordinary Alevis generally keep a low societal profile and do not highlight their religious identity, including through their everyday dress. Indeed, when asked by pollster Pew Research Centre, only five per cent of respondents volunteered they were Alevis.
Alevism is a heterodox branch of Islam that emerged in the medieval period and incorporates Shi’a,
Sufi, Sunni and local traditions. Practising Alevis read from the same Islamic texts as mainstream Muslims, but worship in a cemevi (prayer hall) rather than a mosque. Men and women pray alongside each other, worship in Turkish rather than Arabic, and are not expected to pray five times a day. While most Alevis regard their faith as a separate religion, some identify as Shi’a or Sunni or see their Alevi identity predominantly in cultural rather than religious terms. Alevis are mostly secular, supporting strict separation of religion and politics. Alevis report they are generally able to conduct their religious ceremonies and celebrate their religious festivals without official interference.
The Turkish state does not recognise Alevism as a separate religion and considers Alevis to be Muslims. Cemevis are not recognised as official places of worship at the national level and, unlike mosques, do not receive public funding to support their construction or maintenance. The ECHR ruled in April 2015 that the Turkish government was violating the European Convention by not recognising Alevi places of worship and religious leaders. In November 2018, the Supreme Court of Appeals ruled cemevis should receive the same benefits as mosques, including exemption from utility bills. Some municipalities have voted to recognise the status of cemevis, particularly those under CHP leadership, and agreed to pay for utility bills. Other ECHR judgements from 2015 ruled only Alevi leaders could determine the faith to which their community belonged, and Alevi students should be exempt from compulsory religious education classes conducted by Sunni imams (see Education).
Some Alevis claim the classes teach Alevi students incorrect information about their own faith, which parents have then had to correct at home. Alevi community representatives have told DFAT the ECHR decisions have not been implemented. Alevis have played a prominent role in the political sphere, particularly with the CHP, which has had strong Alevi representation. While most Alevis support the CHP, Alevis have also achieved parliamentary representation in other parties, including the AKP. No laws prevent Alevis (or other religious minorities) obtaining public sector employment or serving in the military. Some Alevis claim to have been denied promotion in the public sector due to their religious identity. DFAT does not have any specific information relating to the treatment of Alevi Kurds in the military. Although the Alevi community suffered significant societal violence in the past, DFAT is not aware of any instances of significant societal violence against individuals in the community in recent years. In 2019, several cemevis and Alevi tombs and shrines were vandalised and covered with graffiti with derogatory statements and painted red ‘X’ marks. Like other religious minorities, Alevis have occasionally been the subject of negative portrayal in state media and subjected to low-level societal threats of violence.
DFAT assesses Alevis face a low risk of official and societal discrimination. While they do not enjoy
the benefits of official recognition as a separate religion, they are generally able to worship freely and participate in most areas of Turkish life, including politics. Kurdish Alevis do not face any additional religious based discrimination beyond those who only identify as Alevi.
Independent news reports sourced by the Tribunal show that the Alevi’s have long been discriminated against and Turkey has a long history of discriminating against Alevi’s.
Alevi’s were targeted in more than half of the hate crimes recorded in Turkey in 2020, according to a report by a human rights organization, Turkish Minute reported, citing the Duvar news website. The report, titled “Religion and Belief-Based Hate Crimes in Turkey 2020,” published by the Freedom of Belief Initiative, listed data obtained from work monitoring religion or belief-based hate crimes that were committed in Turkey in 2020. [7]
Tensions between the Alevi and Sunni communities in Turkey date back to Ottoman times. During the Republican era, thousands of Alevis were massacred in Dersim in 1937, and hundreds were killed in pogroms, which many now believe were masterminded by groups inside the state, in the cities of Çorum, Yozgat and Kahramanmaraş in the 1970s. Thirty-four Alevi intellectuals died in a 1992 fire inside the Madımak Hotel in Sivas. In other incidents, such as in İstanbul’s predominantly Alevi Gazi neighborhood in 1995, Alevis were targeted by people armed with automatic weapons. Cemevis have been occasionally vandalized, with curses and other insulting words put on the walls. Thirty-six publicly known hate crime incidents have targeted Alevis in Turkey within the last eight years, according to Kenanoğlu, with the latest involving death threats to Alevis spray-painted on the walls of an apartment building in the Pendik district of İstanbul in October. [8]
[7] >
Further sourced country information indicates a rise in the level of tensions in Turkey as Alevi houses were marked with red X marks. [9]
[9] >
A Unites States Commission on International Religious Freedom states: [10]
Discrimination against the Alevi community in Turkey is rampant and pervasive and that the situation under the leadership of President Recep Tayyip Erdoğan is only getting worse, in a message issued on Friday, the 28th anniversary of the Sivas Massacre.
According to USCIRF, the incident reflected the prejudice and hate the community faced in their native homeland. “The US government and international community should continue to call on Erdoğan and his ruling AKP [Justice and Development Party] and MHP [Nationalist Movement Party] to recognize Alevi rights,” USCIRF policy analyst John Lechner said in a podcast interview. On July 2, 1993 an angry mob torched the Madımak Hotel in Sivas province, killing 37 people, mostly Alevi artists and scholars who were there to attend a conference hosted by the Pir Sultan Abdal Culture Foundation (PSAKD).
In attendance was Aziz Nesin, a left-wing Turkish short story writer, hated among religious Sunnis in Turkey, who had become the target of attacks for attempting to translate Salman Rushdie’s controversial novel “The Satanic Verses” into Turkish. A group of radical Islamists, having been provoked by several local political leaders, gathered in front of the hotel following Friday prayer and accused conference participants of being infidels. Thirty-three attendees, two hotel staff members and two protesters died in the fire. Nesin was able to escape because the attackers initially failed to recognize him. In a controversial move President Erdoğan in 2020 used his presidential power to pardon a man who was given an aggravated life sentence for his role in the Sivas massacre. A number of lawyers who defended the suspects in the massacre later became politicians in Erdoğan’s ruling party.
Findings and Conclusion
[10] >
In respect of the applicant and despite my own misgivings around some of the applicant’s evidence –specifically around his business dealings I accept that the applicant thought he was coming to Australia permanently and when that did not work out, he applied for the Protection Visa. I accept that when the applicant left Turkey, he had some serious issues with his business and with the government perhaps some of it by his own making, but nonetheless I accept that he had a business and got into trouble with a company that did not exist and that he borrowed money from a money lender. I also accept on the evidence before me that the applicant owes a tax bill and was sentenced to a term in prison.

I accept that the applicant is an Alevi and that he had some limited issues related to being an Alevi. The applicant has not experienced high levels of discrimination in the past, although he has had to change his behaviour to an extent to avoid being targeted for harm. I note that the assessment of protection is in fact a forward-looking assessment, what would happen to the applicant on his return to Turkey. Past experiences can be a guide as to what would occur in the future, but it is only one aspect of the consideration. I consider that cumulatively the applicant is on the governments radar given his tax bill, being Alevi and having been politically active on social media and at rallies in Australia.
In respect of current country information as above there is a long history of discrimination and violence against Alevi’s and under the current President it does not appear to be getting better, and some point out it is getting worse.[11]
According to some human rights organisations, Turkey experts and Turkish opposition parties, the Turkish government is using the failed coup not just to dismantle the Gülen movement but also to settle scores with diverse groups and individuals who deviate from the norm set by the government. This might include human rights defenders, Kurdish activists, academics, journalists, Alevis, atheists, Kemalists and people on the left of the political spectrum.
[11] The Ministry of Foreign Affairs of the Netherlands, General Country of Origin Information Report Turkey March 2021.
The applicant has had to hide that he is an Alevi and pretend to be a Sunni in order to maintain his business and lifestyle. He has had rocks thrown at his business and he has had thugs and mafia come to his business. Given the above country information and the applicant’s background and trouble he has faced in the past, I consider that state protection would not be afforded to the applicant and his family.
I also accept that the applicant has participated in several demonstrations in Australia and has posted anti-government views on [social media]. I accept that the applicant fears the government has him on a list and I have considered he may well be on a list for his political views and as an Alevi. DFAT reports:[12]
DFAT assesses the government’s active use of defamation laws has limited the ability of critics to
[12] DFAT Country Information Report Turkey September 2020.
protest government policies. In particular, those perceived to have criticised the president personally face a high risk of prosecution and conviction, which may lead to a prison sentence.
Relocation given the current country information and climate in Turkey, combined with the lengthy period of time the applicant has been out of the country is not a realistic option. The Tribunal is not satisfied the applicant would be able to avoid the harm feared by relocating internally.
I have also considered that the applicant and his family have been in Australia for a period of 13 years and have a daughter who is an Australian citizen. This is a very long period of time and with a child born and raised here it would be extremely difficult to now return to Turkey.
I find that the applicant has a well-founded fear of persecution on the grounds that he is Alevi and holds anti government views. The risk he faces is a moderate risk and is a real risk now and into the foreseeable future if he was to return to Turkey.
The Tribunal accepts that the applicant holds a subjective fear of being harmed by the Turkish authorities. Therefore, the Tribunal accepts that the applicant fears being persecuted on the basis of his religion as an Alevi, and his political opinion should he return to Turkey in the foreseeable future.
As the applicant’s claims are the claims of applicant two and three, I have considered their claims and evidence as those of the primary applicant. I accept that applicant three has grown up in Australia and cannot return to Turkey and that applicant two is concerned about her children returning to Turkey as women. DFAT states that women do face societal discrimination as below:[13]
DFAT assesses Turkish women face a risk of societal discrimination that will range from low to
moderate dependant on geographic location and socio-economic level. Turkish women face a moderate risk of gender-based violence. Kurdish women residing in the southeast face an additional low to moderate risk of conflict-related violence. Most women in Turkey face a low risk of official discrimination in the form of legislation that acts to restrict their participation in the workforce and community.
Conclusion
[13] DFAT Country Information Report Turkey September 2020.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his religion and his anti-government political opinion.
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s wife and daughter are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application.
It follows that the other applicants—two and three will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
Applicant four is a citizen (see above) and cannot be granted a protection visa.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants -applicant two and three satisfy [s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
(iii) the Tribunal affirms the decision not to grant applicant four a protection visa.
Nora Lamont
Member

Document List – 1816238 – [The applicants]
Tribunal File – 1816238[14]
[14] AAT FOLIO.
1. Protection Decision Record – dated 10/5/2018
2. Notification of refusal of application for a Protection (subclass 866) visa – dated 10/5/2018
3. Legal Submission
4. Letter from [Mr A]
5. Letter from [Ms B]
6. Letter from [Ms C]
7. Letter from [Dr E]
8. Letter from [Ms F]
9. Letter from [Mr G]
10. Letter from [Ms H]
11. Australian Citizenship & Birth Certificate
12. Court Documents
13. Arrest Warrant
14. [Mr A] Psychological report
15. [Mr A] Company documents
16. Social media posts
Department File – [number]
1. Notification of grant of a Bridging E visa: [Mr A] – dated 25/5/2016
2. Notification of grant of a Bridging E visa: [Mr A] – dated 25/6/2016
3. Acknowledgement of a valid application for a Protection (subclass 866) visa – dated 19/8/2016
4. Request Checklist and Details – undated
5. Form 1243i: Your personal identifying information
6. Email from Representative to Department – dated 21/9/2016
7. Email from Representative to Department – dated 21/9/2016
8. Email from Representative to Department – dated 21/9/2016
9. Email from Representative to Department – dated 21/9/2016
10. Form 956 Advice by a migration agent/exempt person of providing immigration assistance – dated 12/12/2016
11. Email from Representative to Department – dated 31/1/2017
12. Email from Representative to the Department updating applicants’ address – dated 27/11/2017
13. Email from Representative to Department – dated 7/2/2018
14. Email from Department to Representative confirming receipt of Form 956 – dated 8/2/2018
15. Statutory Declaration of [Mr A] – dated 23/5/2016
16. Copy of biodata page of [Mr A] Turkish Passport – expiry [2021]
17. Copy of biodata page of [Ms B] Turkish Passport – expiry [2021]
18. Copy of biodata page of [Ms C] Turkish Passport – expiry [2017]
19. Copy of biodata page of [Ms D] Turkish Passport – expiry [2017]
20. Consent to acquire a digital photograph from a minor under the age of 15 or from an incapable person: [Ms C] – dated 1/9/2016
21. Letter from Representative (DMC Lawyers) containing PV application – dated 24/5/2016
22. Request to attend interview – dated 2/3/2018
23. Email from Representative to Department – dated 23/3/2018
24. Email from Representative to Department – dated 26/3/2018
25. Notification of refusal of application for a Protection (subclass 866) visa – dated 10/5/2018
26. Protection Visa Decision Record – dated 10/5/2018
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 1740

4 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date	Event details
01/10/2008	Nomination by an Australian business approved with the Nominee being [Mr A] and his dependant [Ms B]
[date]/[month]/2008	The applicant and Applicants 2 and 3 were granted a 1 year Turkish passport
22/11/2008	The applicant applied for a UC 457 (Temporary Work -Skilled) visa with Applicants 2 and 3 as his dependants
13/02/2009	457 visa granted
[date]/03/2009	The applicant, Applicant 2 and 3 arrived in Australia.
01/02/2010	Applicants 1, 2 had their passports extended until [2011].
[date]	Applicant 4 [was] born in Melbourne. Applicant 4 was granted a UC 457 visa as her father’s dependant.
04/01/2012	Applicant 2 was issued with a Turkish passport, valid until [2021] Applicant 3 ([Ms C]) was issued with a Turkish passport, valid until [2017]
19/04/2012	The Applicant was issued with a Turkish passport, valid until [2021]
21/05/2012	Applicant 4 was issued with a Turkish passport, valid until [2017]
[date]/06/2012	Applicants 2,3 & 4 travelled to Turkey to visit Applicant 2’s ill mother
[date]/09/2012	Applicants 2, 3 & 4 arrived in Australia
08/02/2013	The applicant applied for a UC 457 visa with applicants 2,3 and 4 as his dependants
25/06/2013	457 visa refused – failed to provide evidence of vocational English
04/07/2013	Appealed 457 refusal to the Migration Review Tribunal (MRT)
[date]11/2014	MRT affirmed the Department’s decision.
05/12/2014	Submitted request for Ministerial Intervention (MI)
16/12/2014	The applicant advised the Department that he and his family were able to return to Turkey but would have difficulties adjusting to the lifestyle there.
21/04/2016	MI outcome – not referred.
23/05/2016	The applicant applied for a XA-866 Protection visa, with Applicants 2, 3 and 4 as his dependants without claims of their own.
August 2017	The applicant commenced attending psychological treatment
22/03/2018	The applicant attended an interview to discuss his protection visa claims. The applicant was represented by his migration agent and assisted with language by a Turkish speaking interpreter.
23/03/2018	The applicant’s migration agent emailed a copy of the applicant’s marriage certificate and Applicant 4’s birth certificate.
23/03/2018	The applicant’s migration psychological report.	agent	emailed	a	copy	of	the	applicant’s