1816538 (Refugee)

1816538 (Refugee) [2022] AATA 408 (7 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816538
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Justin Meyer
DATE:7 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 7 February 2022 at 1:01pm
CATCHWORDS
REFUGEE – protection visa – Turkey – political opinion – supporter/member of main opposition party – organisational and protest activities – threats and attacks, harassment by police and disownment by family – fear of harm from government and police, including arbitrary arrest and recall for military service – credibility – inconsistent claims and minimal evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 June 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 10 July 2015. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. To the delegate’s mind the applicant was not a refugee, as defined by s5H(1) of the Act, nor did he meet the complementary protection criteria under s36(2)(aa) of the Act. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Turkey, there was a real risk the applicant would suffer significant harm.
The applicant appeared before the Tribunal on 20 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The Tribunal made a number of attempts to arrange an in-person hearing. Given the gravity and more complex nature of the subject matter in the case, this was the preferred hearing type over telephone or video hearings.
An in-person hearing set down for 8 December 2021. The applicant attended the Melbourne registry for this but was unable to provide proof of vaccination and the hearing was cancelled, to be rescheduled to a new date. The applicant’s representative advised that the applicant was open to participating in a remote hearing.
Thus, the Tribunal exercised its discretion to hold the hearing by video via Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant did not raise any concerns as to conducting the review hearing by video, and confirmed their ability to do. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
Identity
The applicant's identity is established as a [Age]-year-old male, as evidenced by a Turkish passport. There is passport evidence before the Department and the Tribunal confirming his identity and nationality. The applicant claimed to be a citizen of Turkey in his application.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Turkey for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his application to the department, the applicant claimed as follows:
·He left Turkey because of the political issues and fights between the Kurdish and the Turkish and it was not safe there.
·He also did not feel safe in Turkey as he had been threatened for voting for his political party. While in Turkey he had been “threatened and hit a few times”.
·If he returns to Turkey he fears for his life as people are being killed and people do not respect his political party. He has received many threats and witnessed people being killed.
·The Government will not protect him because they order people to kill those who do not vote for the government’s political party.
At interview with the department:
-The applicant said he was a supporter of the CHP and he was not aware of the serious situation caused by the Gezi park incidents, which he thought had been blown out of proportion.
-He could not remember when the Gezi park incident occurred but he thought that it must have been some time in 2013 or 2014. Because of his support for the CHP quite a lot of his family have disowned him and they do not see him anymore. His family and most of his friends have threatened him due to his political opinion and he was assaulted by some of these people.
-The applicant has been [an Occupation] for 24 years and he was able to come to Australia with the assistance of a friend of a friend who helped him provide false information to the Department. The applicant stated that he should be able to return to Turkey in 2-3 years when he expects the FETO GEZI (Fetullah Gulen) situation will change/calm down. For a short period of time in 2009/2010 he was with FETO in Bagcilar, Istanbul. He regrets his time with FETO because he would have never have participated in it if he knew what was going to happen.
-He was able to leave Turkey in 2015 because there was no issue then but the situation has become serious now and he has been black listed by the government since the Gezi Park incidents. He is also worried that he will be recalled for a second period of military service because his brother has informed him that those people who have completed their military service could be redrafted again.
A post-interview (27 March 2018) written submission was along these lines (summarised with grammatical corrections by Tribunal, otherwise as submitted):
-The Applicant is a [Age] year old male born in [Town], Edirne, Turkey. He is a citizen of Turkey.
-The Applicant is of Turkish ethnicity and his religion is Muslim.
-The Applicant is not married and does not have any children. His parents and [siblings] are currently residing in Turkey.
-The Applicant initially arrived in Australia [in] January 2015 with his Turkish passport. He applied for a protection visa on 10 July 2015.
-Applicant's claims
-The Applicant left Turkey because of the persecution that he endured because of his affiliation to the Republican People's Party (CHP) and his active involvement in the 2013 Gezi Park protest in Turkey and the fear of being arrested and mistreated by the police on account of his membership to the CHP.
-The Applicant instructs that he attended a few meetings of the CHP since he joined the party in 2012. During after work hours he would meet with his friends who were associated to the CHP and living in the neighbourhood of Bagcilar, Istanbul which is predominately dominated AK party supporters.
-In June 2013 he was in the forefront of the Gezi Park demonstration which made him a familiar face within the Bagcilar neighbourhood. During the peaceful demonstration by CHP supporters, a fight broke out between the demonstrators and the police. He was struck on the head with a baton by a policeman. After receiving medical treatment the police drove him to the police station. They questioned him on the way to the station. They did not charge him with any offence, however he was advised he will be hearing from them.
-On or about [Date] June 2013, while travelling to the celebration with friends he was confronted and attacked by a group of 15-20 people. He was beaten and he suffered a fractured arm. His friends took him to the hospital for treatment.
-He instructs that in 2012 he joined the CHP. He would design and prepare placards and brochures. He would also distribute newspapers and other political paraphernalia in support of CHP candidates. He advises that he attended various CHP meetings but could not go to all of the meetings as he desired.
-In around October 2012 he was stopped by police at night when he was in the process of returning from a family visit. He was travelling from [Town] to Istanbul and questioned about his identity and his destination. They also queried him about his activities, including whether he was involved with the CHP organised protest in Istanbul. He was asked to sign a document and refused to sign the paper. He displayed to the police officers his military service card and they eventually released him.
-Following the incident he stayed at home for 1-2 days and then went to live with friends. The Applicant instructs that he began living in hiding at a friend's house until he eventually managed to flee to [Country 1]. Upon returning to Turkey the Applicant remained on the run as he had become aware that the police were randomly arresting CHP supporters, members and officials. He discovered that all party members and officials of the CHP in Istanbul had been arrested and mistreated. Approximately 6,200 people were being arrested and taken into custody. As a consequence of the selective roundups, some of his friends from Bagcilar were taken away and imprisoned. He also feared being arrested in similar circumstances.
-He advises he served in the Turkish military from May 1997 to November 1998. Recent requests by the Turkish government requesting the return of all male who have served in the military to register again has enlighten his fear of retuning to Turkey. He described the Turkish authorities being on an active campaign to target those associated with the CHP.
-Persecution arising from imputed political opinion
-The Applicant fears being persecuted by the Turkish authorities owing to his political opinion in actively supporting and being a member of the CHP. The Applicant is known to the Turkish authorities as a politically active member of the CHP who is imputed to support the CHP.
-The Applicant has been active in pro-CHP political activities over a number of years as a member of the party. He states that he has been at risk of being arrested and mistreated a number of times.
-The Applicant advises that he became interested in CHP due to its inclusion of the youth at the time. He became involved with the youth arm of the CHP, including the delegations. He was living at Bagcilar where he met friends who were members of the CHP. He then progressed his role by joining them as a member where he became more active in the party by preparing placards and brochures. He would also distribute newspapers, paraphernalia and attend CHP meetings on various occasions. However due to the difficulties caused by the authorities, he was unable to attend CHP meetings as regularly as he desired.
-The Applicant instructs that he joined the party to advance the CHP nationalist and social democratic balance of ideology objectives in Turkey.
-CHP members are regularly harassed by the Turkish authorities and are subject to arbitrary arrest and imprisonment, often on charges of alleged collaboration with the Fetullah Terrorist Organization (FETO) and intent to overthrow the government. A clampdown on the CHP's 'legal' political activity, which began in 2010, has intensified.
-Turkish govt investigates all members of CHP party assembly over Erdogan's complaint, December 2017, CHP leader ends 450km protest march with rally, 10 July 2017, the 2013 protest and the 2016 failed attempted coup, CHP members who are the traditional enemies of the ruling party AK have been suspected of being behind the failed coup and have been subjected to torture, beatings and rape.
-Purge escalates of suspected coup backers in Turkey, 24 July 2016, respectfully submit that relocation is not viable in the current situation. We refer particularly to the Guidelines on International Protection: 'International Flight or Relocation Alternative' within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees. We note the guidelines provide that both reasonableness and relevance analysis must be taken into account, The Guidelines contend that the following factors should be examined in determining if internal relocation is viable.
……
-Firstly, we submit that in light of country information below, members of the CHP and those suspected of being involved with CHP and failed coup activities, are targeted throughout Turkey and as such the Applicant would not be subjected to harm only in his area of origin rather throughout Turkey. Accordingly, the Applicant would not be safe in another area of Turkey.
-Secondly, we contend that the State is often the perpetrator of harm against members of the CHP and accordingly, the Applicant would not be able to rely on state protection in another area of Turkey.
-We further submit that it would be unreasonable for the Applicant to relocate. The Applicant has suffered great trauma in the past and given the amount of support the Applicant has required in order to subsist in Australia, if he was forced to relocate in Turkey, he would be extremely vulnerable to harm.
-Since the evidence shows that the societal prejudice against CHP members throughout Turkey, there is no part of Turkey to which the Applicant could reasonably be expected to relocate where he would be safe from the persecution which he fears. The risk of Convention persecution exists in the country as a whole, and that safe relocation within Turkey is therefore not reasonably open to the applicant.
-The Applicant is already known to the authorities as a pro-CHP advocate from the CHP. By reference to the applicant's evidence and to the material available to it concerning the situation in Turkey that wherever in his country the applicant goes there is a real chance that his advocacy of CHP members' rights will be punished with repeated detentions and assaults such as to constitute persecution for his imputed political opinion. It follows from the findings and reasons set out above that the applicant has a well-founded fear of persecution in relation to Turkey as a whole.
-Failure of Turkish Authorities to Avail Protection
-The Applicant cannot rely on the protection of the authorities as it is the government and their associated authorities who he fears. The following excerpt indicates that the authorities are unwilling to assist individuals who are subjected to harm given their political views.
…
Police brutality in Turkey has been well documented over many years. (Closing Ranks Against accountability, 2008, Human Rights Watch were some promising signs that, under pressure from EU countries, Turkey would make its police more accountable. Recent events appear to indicate that police are still allowed to exercise inappropriate violence with impunity.
-The United States Department of State reported:
-Human rights organizations continued to report cases of alleged torture and abuse, especially while the alleged victim was in police custody but not in a place of detention, during demonstrations, and during transfer to prison. They alleged that torture and abuse largely occurred outside of detention centres in more informal venues where it was harder to document.
-Prosecutors investigated allegations of abuse and torture by security forces during the year but rarely convicted or punished offenders. Authorities typically allowed officers accused of abuse to remain on duty during their trial. In its October progress report on Turkey, the European Commission noted that law enforcement bodies regularly filed countersuits against persons who alleged torture or mistreatment. In many instances the courts gave such cases priority. Domestic human rights organizations claimed this practice deterred victims of abuse from filing complaints.
-A number of human rights observers claimed that only a limited number of detainees reported torture and abuse because many feared retaliation or believed complaining to be futile. Human rights organizations documented several cases of prison guards beating inmates and maintained that those arrested for ordinary crimes were as likely to suffer torture and mistreatment in detention as those arrested for political offenses, such as speaking out against the government.
-The HRF received 553 allegations of incidents of torture. Of these, 220 allegedly occurred during the year and the rest occurred in previous years. The Jandarma reported that it received 62 allegations of torture, while the TNP reported 26 allegations, 25 of which it dismissed, with one case continuing at year's end. In addition to the Jandarma, Human Rights Violation Research and Evaluation Center received 178 complaints, of which it investigated 10 cases and dismissed 168.
-US Department of State 2012, Country Reports on Human Rights Practices for 2012 - Turkey, 20128dlid=204348#wrapper Section 1
-According to Human Rights Watch, Annual Report 2012, police violence against demonstrators was still a serious problem in Turkey and required more resolute action from the government. The authorities covered the problem by investigating demonstrators for resisting police dispersal, joining unlawful demonstrations or terrorist propaganda, rather than investigating allegations of police abuse or senior officers for the conduct of officers under their authority. In 2011, there were also reports that police beat detainees during arrest.
-Human Rights Watch - World Report 2012 - the applicant's personal circumstances and the lack of the availability of state protection from the harm feared at the hands of the authorities in Turkey, there is a real chance that the applicant would face persecution for reasons of his political opinion if he was to return to Turkey.
…
-We submit that in light of the country information below in relation to the treatment of supporters of the CHP in Turkey, the mistreatment feared by the Applicant is sufficiently grave to constitute persecution.
-The Applicant relies on his statement of claims submitted on his behalf to the Department of Home Affairs and in support of his Application for Refugee Status Assessment together with submissions submitted on his behalf.
-We reiterate our submissions that based on the Applicant's claims and evidence; he falls within the Definition of a Refugee. However, should it be found that the Applicant is not a refugee, we submit that there are substantial grounds for believing that there is a real risk that the Applicant will suffer significant harm if refouled from Australia.
-The Applicant's claims are contained in his respective Statutory Declaration in support of his Application and subsequent information and submissions provided to the Department. Based on the Applicant's claims and the matters outlined herein, we submit that the claimed harm or mistreatment amounts to significant harm.
-Significant Harm arising from torture:
…
-The U.N Committee Against Torture, in their report of November 2010, stated they had grave concerns about numerous, ongoing and consistent allegations concerning the use of torture, particularly in unofficial places of detention. These allegations come despite the State providing information that combating torture and ill-treatment has been a priority and despite the fact that there had been a decrease in the number of reports on torture and other forms of cruel, inhuman or degrading treatment and punishment in official places of detention.
-The Committee was also concerned by the absence of prompt, thorough, independent and effective investigations into allegations of torture committed by security and law enforcement officers. Many law enforcement officers found guilty of ill-treatment receive only suspended sentences, which had contributed to a climate of impunity.
-Prosecutions into allegations of torture were often conducted under Article 256 (excessive use of force) or Article 86 (intentional injury) of the Penal Code, which proscribe lighter sentences.25 Following its November 2010 review of Turkey, the United Nations Committee against Torture raised concerns about the failure to investigate numerous, ongoing and consistent allegations concerning the use of torture and asked Turkey to report again in a year regarding steps taken to address the problems identified. In September 2011Turkey ratified the Optional Protocol to the UN Convention against Torture. 26
-Human Rights Watch — World Report 2012 — Turkey
-We submit that country information relied on above clearly indicates that pain and suffering is inflicting against those suspected of being involved with activities with the CHID. Accordingly, if the applicant was to return to Turkey, he would face torture from the authorities and society at large.
-Significant harm arising from cruel and inhuman treatment or punishment:
…
-The Applicant has submitted that he belongs to the CHP political party and noting the current situation of discrimination in the country and the sensitivity of the Turkish authorities to individuals perceived to be supporting the CHP, we submit that the risk to the Applicant being persecuted on return cannot be dismissed as mere speculation.

In his written submission to the Tribunal of 20 June 2021 he stated:
-The Applicant relies on his Statement submitted in support of his application for Protection and information provided to the Department of Home Affairs and is seeking a determination to be found to be a refugee as defined by the 1951 Status of Refugees Convention and 1967 Protocol (Refugee Convention). The Applicant submits that he fears persecution in Turkey given he is a membership of a Republican People's Party and his imputed political opinion.
…
-The Applicant is a [Age] year old male born in [Town], Edirne, Turkey. He is a citizen of Turkey.
-The Applicant is of Turkish ethnicity and his religion is Muslim.
-The Applicant is not married and does not have any children. His parents and [siblings] are currently residing in Turkey.
-The Applicant initially arrived in Australia [in] January 2015 with his Turkish passport on Temporary Work — Short Stay visa which was valid until 23 February 2015.
-Applicant's claims
[thereafter a repeat of segments of the post-interview (27 March 2018) written submission per paragraph [17]]
…
-Complementary Protection
-The Applicant relies on his statement of claims submitted on his behalf to the Department of Home Affairs and in support of his Application for Refugee Status Assessment together with submissions submitted on his behalf.
-We reiterate our submissions that based on the Applicant's claims and evidence; he falls within the Definition of a Refugee. However, should it be found that the Applicant is not a refugee, we submit that there is substantial grounds for believing that there is a real risk that the Applicant will suffer significant harm if refouled from Australia.
-The Applicant is not excluded from coverage of the Section 36 (2)(aa) of the Migration Act (Cth) 1958
-The Applicant is not excluded from coverage of Section 36 (2)(aa) of the Migration Act (Cth) 1958 (the 'Complementary Protection Provisions').
-There is no evidence available on which the Applicant can or should be excluded from coverage by the Complementary Protection Provisions by virtue of Section 36 (20) (a) or (b). It is noted that the primary decision maker was satisfied that the Applicant was not excluded under Section 36 (2C) (a) or (c) of the Migration Act (CTH) 1958.
-Substantial grounds for believing
-We rely on the contents of this submission together with the country information provided as evidence that there are substantial grounds for believing that there is a real risk of significant harm for the Applicant if he is refouled.
-Does the Claimed Harm or Mistreatment on Return to Turkey Amount to Significant Harm?
-The Applicant's claims are contained in his respective Statutory Declaration in support of his Application and subsequent information and submissions provided to the Department. Based on the Applicant's claims and the matters outlined herein, we submit that the claimed harm or mistreatment amounts to significant harm.
-Significant Harm arising from torture:
…
-The Applicant claims that he will face torture if he returns to Turkey as a result of his profile with the authorities. The Applicant has previously attended the Gezi Park protest in which he has been beaten by the police and required medical treatment for his injuries.
-We submit that country information relied on above clearly indicates that pain and suffering is inflicting against those suspected of being involved with activities with the CHP. Accordingly, if the applicant was to return to Turkey, he would face torture from the authorities and society at large.
-Significant harm arising from cruel and inhuman treatment or punishment:
…
-The Applicant has submitted that he belongs to the CHP political party and noting the current situation of discrimination in the country and the sensitivity of the Turkish authorities to individuals perceived to be supporting the CHP, we submit that the risk to the Applicant being persecuted on return cannot be dismissed as mere speculation.
-Is there a real risk that the Applicant will suffer Significant Harm?
-as held in Chan Yee Kin v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 should be followed whereby 'real' is a substantial and not remote chance but that it includes a less than 50 per cent chance.
-We submit that there is a real chance that the Applicant personally risks suffering Significant Harm. Relocation is not an option for the Applicant and he cannot obtain protection from the authorities of his country.
-The Applicant's claims are contained in his Application and submissions submitted on his behalf to the Department.
-We therefore submit that there is a real risk that the Applicant will suffer Significant Harm.
Evaluation in the light of the applicant’s evidence in the hearing
The applicant said he came to Australia in 2015. He is of Turkish ethnicity and heritage and is an adherent of Islam.
His mother is [Age] years old and his father passed away in the 1990s. His father was a farmer. The applicant previously held a job as [an Occupation] in Turkey. He is unmarried. He had previously been to [Country 1] and [Country 2] for leisure and travelling.
The applicant came to Australia via [Country 2]. I asked why he did not go directly to Australia. He said “we could not go to [Country 3]” as it is too expensive. A person named [Mr A] chatted to him and “he brought us to Australia”. There was also a person named [Mr B]. These people are friends. [Mr A] was the better friend of the two. Although [Mr A] brought him to Australia he only stayed for one week. He never saw the people again. The applicant said that he was on a working visa in Australia and he did nine months [doing Occupation 2] and then six years of [doing Occupation 1].
I asked why the applicant sought protection in Australia. He said the specific problem for him was a political issue. He said he ran away “from all of that”.
I asked the applicant what the political issue was in Turkey. He said he had different beliefs as part of a protest.
When I asked what the different beliefs were he said he was turning against the government and that is all it was.
I noted that he said that he had been involved in protests and observed that this meant he could be called a protestor. He said this was a matter of regret.
The Tribunal noted that there has been a lot of protests in Turkey over the years. The Tribunal asked what motivated the applicant to protest. He said “I just wanted to be part of them”.
The Tribunal asked whether there was anything about the president or his government that he objected to. The applicant said that no one objects to him and he is a dictator.
The Tribunal asked how many protests the applicant went to. He said Gezi. I asked if he remembered the year to which the applicant replied that he believed it was 2013.
When asked to describe the Gezi Park protest and what it was about the applicant said it was about tree removal, but by his reasoning the government should not be in power.
He did not go to any other protests.
The Tribunal asked for his understanding of why the protest came about and the applicant said it started as a small group. I asked whether the applicant had heard about it from people he knew. The applicant said that it was people around his house. He said the people he knew he had not seen in seven years and he stopped communicating with them. He named two individuals.
He was living in Istanbul at the time and he said he attended the protest for nine days in 2013. I asked if he went every day. He replied that it was just about every day. He said on some days they would be allowed to go but on other days they were not and they returned. He said he took time off work.
I asked if he held signs or made slogans. He said there was pressure from police not to do slogans.
It was a peaceful protest and there was no gas or baton use.
He said he suffered by being arrested and put in custody. He said he had been bumped as a result. He was arrested for protesting. He does not remember the date that this occurred.
I asked if he had a document showing that he was arrested. He said many were held in custody and he had no previous record. He was let go. He did not go to court.
After observing the bumps on the applicant’s body, the Tribunal enquired who hit him. He said he did not know. I asked if this was police to which the applicant replied “yes”.
I enquired as to why the police would harm him in particular. I asked what had prompted police to strike with batons.
The applicant said that the protest had got out of hand - people were burning cars and rubbish.
He said he was hit on his head and became unconscious. He showed the Tribunal a large bump on his head. He said he had other scarring on his body. He said he was harmed on his private parts. He was deliberately hit there. I asked where he was when he regained consciousness. He said he was “in some place”.
I asked what happened then. He said people were left behind. He said police take you anywhere. They leave you anywhere. They were not concerned about him. He said he was questioned while he was in custody.
I asked again whether he was taken anywhere. He said no, just at the police station. He was taken there by vehicle. He said there were a lot of people placed in a cell with him. He only attended hospital after he was released. Nobody attended to his injuries at the station.
The applicant said he was not charged but he was simply warned and released. He said he had no prior convictions.
Straight after this he said he went to the hospital.
I asked what parts of the body they treated at hospital. He said his head and his hand. He said he went home and tried to recover from his injuries.
The Tribunal then enquired as to whether he had any other trouble in Turkey. He said “just a short questioning”. I asked whether he could estimate when this occurred. The applicant said towards the end of the protest. I asked where questioning took place to which he replied “on the road”.
I enquired as to whether he was walking somewhere to which he replied “yes”. The Tribunal asked what questions he was asked towards the end of the protest. He said it was late in the evening and he was asked why did he go out. He said it was not just him. I asked why he and others would be picked out. The applicant said it was “not just me.”
He was asked “where are you going?” His hand was wrapped and this got their attention.
He said this was the truthful answer. Other than this questioning, nothing else happened.
I asked whether there was any other harm or threats up until 2015. The applicant said ‘no’.
He said that to be honest, he lived discreetly and was not sociable.
I asked if he was a member of a political party anywhere. He said he was and for that reason he stayed away from his family, who had different beliefs. He was a member of the CHP, the main (social democratic) Turkish opposition party. [1]
[1] parties-and-elections.eu/turkey.html
The applicant said that CHP had “opposite thoughts and an opposite way of doing things.” When asked who the party’s leader was at time of the Gezi Park protests he said it was “the same one as now”, Kemal Kılıçdaroğlu. The applicant said that he distributed written material for the party. If he had been caught there would have been a lot of issues and problems.
The applicant went to [Country 1] in 2014, and this was to escape from issues to do with his political activities. He spent a week in [Country 1], with the men that he later came to Australia with. He did not consider claiming asylum in [Country 1].
It was noted to the applicant that the only event where he said experienced harm was at the Gezi Park protest. He confirmed this in his oral evidence in the hearing.
Yet the applicant was reminded that he had claimed in his written materials that there was another incident [in] June 2013 – where 15-20 people attacked him. He was travelling to a celebration with friends, whereupon he was set upon, suffering a fractured arm, according to that written account. He was taken to hospital by his friends.
This contradicts what he had said previously: that there was only one event of physical harm.
The applicant said: “what happened to my hand and what happened to my arm are two different incidents.”
This did not clear up matters as the Tribunal was told in the hearing that there was only one incident whereas he was now claiming that there were two.
He said he wanted to clarify that during the Gezi Park protests he suffered injuries to his head and his hand, which were done by the police.
The second incident the applicant said was not inflicted by the police.
The Tribunal was unable in the hearing to reconcile the differing accounts, and does not accept that forgetfulness for example explains the discrepancy. The inconsistency detracts from his credibility. It is not understandable, to the Tribunal’s mind, how the applicant can rule out more than one incident, yet contradict that when prompted about the second claimed incident.
The second attack was by unknown people. Their motive was about the T-shirts and political message he and his friends were wearing.
It was pointed out that it took another two years before the applicant departed Turkey
He got to know a man called [Mr C] who helped him leave Turkey. It took him a while to meet this individual. He said “you show me where you want to go in the world on the map and I will take you there.”
The applicant said that he had spoken to another person before that, but the person was not helpful and he merely took his money.
As for other reasons to fear harm, the applicant said he had a close relative in government who refuses to take his calls. They must be afraid of his calls.
He completed his military service and it passed uneventfully.
Military service might have some issues for him in the future. He does not know if he would be called back. There is an age limit but he does not know it.
The following DFAT country information[2] was discussed:
[2] DFAT Country Information Report Turkey September 2020
3.46
Article 34 of the Constitution guarantees the right to hold unarmed and peaceful meetings and demonstration marches without prior permission, but provides for this right to be restricted by law on the grounds of national security and public order. Under the state of emergency, and the subsequent legislative normalisation, this freedom became severely restricted, particularly when exercised by groups protesting against the government. According to Articles 9 and 11 of the State of Emergency Law (2016), measures could be taken during the state of emergency to prohibit, postpone or impose permission obligation for assemblies and demonstrations in closed and open areas, as well as to determine, publicise, supervise, and disperse areas of assemblies and demonstrations. Even before the state of emergency, protestors faced legislative restrictions: the Law on Demonstrations and Meetings (1983) requires all members of a protest organising committee to submit a signed declaration to the district governor’s office 48 hours prior to the event; the Law Amending the Law on Powers and Duties of the Police, Other Laws and Decrees (2015) allows police to detain any protestor without consulting the prosecutor’s office, and imposes a five year prison sentence on protestors who cover their faces fully or partially during a demonstration.
3.47
Throughout 2019 and 2020, the government pre-emptively prohibited many demonstrations on national security grounds, and often detained persons likely to be involved before scheduled protests commenced. Turkey’s Human Rights Association claimed in 2019 police intervened in 962 demonstrations, and 2,800 individuals were beaten or subject to unnecessary force while police were breaking up protests. Security forces also pre-emptively close off prominent gathering locations on symbolic dates throughout the year to prevent protests.
3.48
In 2019 and 2020, police used tear gas to break up an 8 March International Women’s Day march of thousands of people in Istanbul – despite this event proceeding peacefully in previous years. In contrast, 2019 May Day protests, which are usually disruptive, were conducted peacefully across the country, but again prohibited in 2020. Police also used significant force on students at Ankara’s Middle East Technical University in 2019 who were attempting to protest environmental issues. During elections, the AKP and main opposition CHP are generally permitted to hold large public gatherings, but the Kurdish HDP and minor parties are usually prohibited from holding rallies.
3.49
DFAT assesses the ability of critics to protest government policies through political demonstrations has been significantly reduced by measures introduced during the state of emergency that remain in place. Those seeking to protest on sensitive issues are likely to be denied official permission, and to face a security response involving force if they proceed.
3.50
Several articles of the Criminal Code prohibit defamation (defined as ‘insult’) against the Turkish state, its symbols, and its representatives. Article 299(1) applies a penalty of six months to three years’ imprisonment for insults against the Turkish nation, state or Grand National Assembly, and Article 299(2) applies the same penalty to those who publicly degrade the government, judicial bodies, the military or security organisations. Article 300(1) applies a penalty of one to three years’ imprisonment to those who publicly degrade the Turkish flag by tearing or burning, while Article 300(2) applies six months to two years’ imprisonment for publicly degrading the national anthem. Article 300(3) states that where a Turkish citizen commits the offence in a foreign country, the penalty shall be increased by one-third. Article 125(3) applies a penalty of between three months and two years’ imprisonment (punishable under Article 125(1)) for insulting a public official due to the performance of public duty. Under Article 125(5), where an insult is directed against public officials working as a committee, the offence shall be deemed to have been committed against all of the officials and shall be penalised as such. Article 299(1) applies a penalty of one to four years’ imprisonment for insulting the president, increased by one-sixth if the offence is committed publicly. Article 130(1) applies a judicial fine or three months to two years’ imprisonment for insulting the memory of a dead person, with the penalty increased by one-sixth if the offence is committed publicly. Article 130(2) applies a penalty of three months to two years’ imprisonment for making insulting statements about the body or bones of a dead person.
3.51
In recent years, authorities have indicted hundreds of individuals, including journalists and minors, on defamation charges for insulting state institutions. President Erdogan has filed significantly more cases under Article 297 than his predecessors. Media reported Erdogan had filed 1,845 cases under Article 297 between August 2014 and March 2016. According to the Human Rights Association, during 2019, 36,664 people were investigated under Articles 299 and 301, of which 6,131 progressed to criminal cases, and 11,337 did not proceed past initial investigation. Media reporting alleged there was a 13-fold increase in convictions between 2016 and 2019 for insulting the president
3.52
Most cases have applied to journalists, but cases have also been filed against writers, politicians, athletes, students, academics and schoolchildren. In one prominent case in July 2018, Kemal Kilicdaroglu, the CHP leader, was found guilty of defaming Erdogan and his family after claiming they had transferred money abroad, and was ordered to pay a record fine of TRY359,000 (then AUD100,000). In another, in July 2019, a singer was sentenced to 11 months in prison for insulting the president in a song. In May 2020, a warrant for ‘insulting a public official’ was issued against a CHP youth leader for seven-year old social media posts made when she was 17, while an 80-year old man was detained in April for merely ‘liking’ a supposedly insulting post on Facebook.
3.53
Most cases prosecuted under Article 299 do not result in prison sentences; however, many have spent time in pre-trial detention. Human rights observers claim the use of Article 299 has created an environment of intimidation and has considerably limited freedom of expression by encouraging self-censorship.
3.54
DFAT assesses the government’s active use of defamation laws has limited the ability of critics to 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.
3.55
Article 33 of the Constitution guarantees the right to form associations, but allows for restrictions of this right by law on national security grounds. Several organisations in Turkey advocate for human rights and conduct other civil society activities. These groups have public profiles including websites, and publish reports in Turkish and English that are often highly critical of the government. Measures taken under the state of emergency and subsequent enduring legislation, however, have significantly limited their ability to function. Many human rights defenders have either ceased their activities altogether or significantly wound them back, including by self-censoring their reports. International human rights observers have expressed strong concerns a reduction in human rights monitoring, combined with the granting of extensive additional powers to security forces (see State of Emergency) increases the likelihood of human rights violations.
3.56
According to OHCHR, as of March 2018, the government had permanently closed 1,719 organisations through emergency decree, including human rights and humanitarian groups, lawyers’ associations, foundations and other NGOs. The government has prosecuted many human rights defenders for alleged membership in terrorist organisations, including the Gulen movement and the PKK. In recent years a number of high-profile activists have been arrested and subjected to long, complex and inter-linked legal procedures. Prominent human rights activist and philanthropist Osman Kavala was detained in October 2017, accused of participating in a George Soros-linked plot to overthrow the state. He was acquitted in February 2020, only to be re-arrested on the same day on military espionage-linked charges. The legal manoeuvres likely attempted to sidestep an order from the ECHR to release Kavala from pre-trial detention. Similarly, Amnesty International’s Taner Kilic was convicted in July 2020 of membership in a ‘terror organisation’ and sentenced to more than six years in prison. Three other prominent human rights activists were convicted of terrorism offences alongside him while seven were acquitted.
3.57
During the COVID-19 pandemic, Turkey legislated a widespread prisoner amnesty to stop the spread of the virus in crowded prisons. While numerous violent criminals were released, human rights defenders and others charged under broad terrorism and national security charges were required to remain in prison.
3.58
Security forces closely monitor activities of groups defending the rights of religious and cultural minorities, women, unionists, and the lesbian, gay, bisexual, transgender and/or intersex (LGBTI) community.
Aside from criminal prosecutions, many human rights defenders report official harassment, surveillance, intimidation, threats, prolonged detention without charge and travel bans. Lawyers who provide legal assistance to human rights defenders and other civil society activists face similar treatment.
3.59
DFAT assesses human rights defenders face a high risk of official discrimination in the form of arrest, monitoring, harassment, prosecution, and being prevented from travelling abroad. This risk is particularly high for those working on the rights of cultural, religious and sexual minorities, and the rights of labourers.

The Tribunal acknowledged and discussed the severely curtailed right to protest in Turkey. It was noted that a large number of protests were ended by authorities, effectively before they could even begin. There has been police force and brutality. The applicant was asked how this might affect him personally.
The applicant said he regretted attending the protest and would not go again out of fear. His age and desire for a family were factors in stopping him.
Military service as described in the DFAT report[3] was discussed:-
[3] DFAT Country Information Report Turkey September 2020
3.92
Article 72 of the Constitution states national service is the right and duty of every Turk. Males are required to register at age 20 for service that commences once they turn 21. University students can defer their service until they have completed their studies. Males aged 20 to 41 are eligible for conscription and must undertake military service of six months. New laws introduced in June 2019 allow conscripts, after one month of military training, the ability to buy-out the remaining five months for a fee of 31,000 Turkish Lira (AUD6,640 as at June 2020). This applies only to those called up after the introduction of the new law. Those already considered draft evaders are not eligible for the new law and buy-out scheme.
3.93
Although military service is viewed as a rite of passage for young men, exemption or deferment on a non-financial basis from military service is possible. University students can delay their service until they have completed their studies, and potential conscripts can be exempted for being medically unfit, for residing outside the country (although if they later return to Turkey they have to pay a fee), or for ‘proving’ their homosexuality. Local sources report a potential conscript can also be exempted if his brother died while undertaking military service. Tests to prove an individual is medically unfit for duty are rigorous. Homosexuality is regarded a psycho-social illness and must be proven in two ways: an invasive medical examination by a military approved doctor and provision of photographic evidence. If a physical disability is claimed, the individual must undergo checks every two years during their period of eligibility to confirm their disability still exists.
3.94
Military authorities issue documents for exemption of service that indicate the person has no outstanding liability or obligation in terms of military service. Such documents do not include information on reasons for being unfit. People who are unfit for military service can obtain public or private sector employment without difficulty. Authorities maintain a sophisticated national database of military service, making evasion for an extended period almost impossible (see Central Civil Registration System (MERNIS)). Any interaction with authorities, such as being stopped for a traffic infringement, can lead to a cross-check of an individual’s military service record. In addition, the barcode in biometric passports (see Passports) is linked to the national database, meaning authorities can identify draft evaders on their return to Turkey (see Passports).
3.95
The government does not recognise the right to conscientious objection to military service on any basis. Those who do not present for registration at a military recruitment branch are issued a fine, and fines continue to be issued for the period authorities consider an individual has evaded conscription. Fines increase in value as the number of years of avoidance increases. While the law allows for imprisonment as punishment for avoiding military service, DFAT understands it is not used in practice. Non-payment of fines in Turkey can, in theory, result in asset seizures and withholding of salary and pensions. In practice, there are a very large number of conscription evaders and the state lacks capacity to follow-up on most cases. Prison is not used as a penalty for unpaid fines in Turkey. Turkish men who are resident overseas are not required to do military service while they hold a foreign work permit. Those who do not hold such a permit are considered draft evaders and may be subject to considerable fines upon their return.
3.96
DFAT assesses most, but by no means all, Turkish men will undergo military service. Exemption from military service is possible, but depends heavily on individual and socio-economic circumstances. Conscientious objectors and draft evaders are likely to face a degree of harassment from authorities for unpaid fines, and may have restricted access to a wide range of social benefits and civil rights, which may include the ability to leave the country.
The Tribunal noted there was no suggestion that the applicant would need to perform a second term of military service, nor did it appear that [an Age] year-old would need to serve.
The applicant said he had bad luck and they might call him up anyway. The Tribunal finds this to be unsupported by evidence. There is only a remote chance that military service would become an issue for him based on his evidence and the country information.
The Tribunal noted its concerns to the applicant about his evidence in the hearing. His political views he described as “different belief” and notwithstanding his perhaps more limited grasp of conceptual notions, it was difficult to discern specific reasons for his political objections. The applicant struggled to explain his anti-government beliefs and confined his reasons to how the people are manipulated by the president and discouraged from having their own opinions. It was a different lifestyle in Turkey where people’s beliefs are “tampered with.” The Tribunal took this to be a dislike of the president’s autocratic style. The Tribunal is able to discern little detail of policies or philosophies objected to. While the Tribunal accepts the applicant is against the Turkish president and his party and supports the main opposition, his objections and fears did not rise above a commonplace and generalised outlook.
He said that Gülen (Muhammed Fethullah Gülen) is referred to as a terrorist and he would be linked – he was associated with him. He was assisting student from Gulem schools for example. Asked if he was a teacher’s aid he said he was more assisting the students (“for things that they needed”). I asked for a name of a student assisted, which he provided. This was about 15 years ago. He was there helping them and “that’s all it was,” he said. The student in question called him as to how he could also come to Australia. There was little he could do for him. The Tribunal considers this to be a thin connection at most with Gülenists and discounts the risk involved.
Findings
The Tribunal has considered the claims and evidence of the applicant and the information submitted. Based on consistent claims, the Tribunal accepts the following:
·The applicant is [an Age] year-old male from Turkey.
·He is of Turkish ethnicity and heritage and is an adherent of Islam.
·His mother is [Age] years old and his father passed away in the 1990s. His father was a farmer. The applicant previously held a job as [an Occupation 1] in Turkey. He is unmarried. He has previously been to [Country 1] and [Country 2] for leisure and travelling.
·He supports the opposition and in particular the CHP.
·He is against the present government of Turkey.
·He has performed his military service.
The Tribunal has a number of credibility concerns with the applicant’s evidence which it has discussed with the applicant in detail.
The Tribunal was concerned at the applicant’s shifting evidence about incidents of harm which he claimed.
As earlier described the applicant said he was living in Istanbul at the time and he said he attended the Gezi Park protest for nine days in 2013, just about every day. He described how police were said to have harmed him and locked him up in connection with this.
It was incongruous to the Tribunal that when asked if there were any other incidents of harm he recalled “just a short questioning” towards the end of the protest. When he was “on the road”.
Despite prompting from the Tribunal about whether there was any other claimed harm he did not volunteer his earlier written claim that he had been set upon by large group on another occasion. It was only when this was spelt out to him and recounted by the member from the applicant’s written materials that he began to discuss the matter. That it cannot be readily recalled is of grave concern to the Tribunal. Such claimed beatings would be etched on a person’s memory in normal circumstances and the Tribunal is at a loss to see a reason for the lack of recollection. Although injuries were visible on the applicant at the hearing, these injuries have other possible feasible causes. Yet the applicant had specifically ruled out that there had been an additional incident of this kind. The Tribunal does not accept that the Tribunal was assaulted and harmed in any way and it does not accept he was confronted and attacked by a group of 15-20, or any other group or persons, and hospitalised.
The applicant’s claims of political involvement were undetailed and lacking in form and clarity. He struggled to specify his particular concerns with the regime. While he may not have a philosophical bent, it was incongruous that his remarks were restricted to having “different beliefs” and having generalised complaints about the Turkish president. These in the hearing never rose above low-level complaint, which is out of keeping with being a claimed long-term political volunteer and activist. When asked about the momentous Gezi Park protests he proffered phrases such as “just wanting to be a part” of them, which suggested a lack or energy or focus. Combined with his taking two years of research to contemplate leaving the country suggestive of a possible lack of urgency and even motivation to depart, the Tribunal could only consider speculative his risk of harm as a politically active person or having political activities imputed to him. Despite wanting to engage with the applicant about his mindset and beliefs the Tribunal was left with little illumination about his motivations, and all of this pointed to his being a politically passive and uninvolved person. I do not accept his claims of having been involved in protests campaigning and organising or that he will take this up on return to Turkey.
The Tribunal does not accept the applicant’s claim that he faces harm through being conscripted into the Turkish military. It is established that the applicant has already performed his military service in the 1990s. The country information discussed with him established no clear basis for concluding that he will or might be called up once again. His completed military service passed uneventfully and it appears from his submission that his belief is based upon something his brother told him. There is an age limit but he did not know it. I accept DFAT’s description that males aged 20 to 41 are eligible for conscription and must undertake military service of six months, and that at [Age], and having already completed his service, the chance of him being conscripted again is remote.
Overall, the applicant proffered negligible evidence to support his claims of facing harm. The Tribunal is being asked to accept his word, yet there are for example no photographs, reports, other oral evidence or declarations from a third party to support his specific claims. It is for applicants to make their case. While it is by no means essential or mandatory to supply such (and moving country and the passage of time for example can be contributing factors), the Tribunal is left with little else to evaluate other than the applicant’s unsupported assertions or assurances. That say-so is already lacking in authority and reliability for the reasons given above, and the Tribunal is left with an impression of conjecture and invention.
The Tribunal finds that because it has credibility issues with the evidence above it causes the Tribunal to doubt, distrust and not accept other substantial claims of the applicant.
The Tribunal therefore does not accept that:
·the applicant fears being persecuted by the Turkish authorities owing to his political opinion in actively supporting and being a member of the CHP.
·the applicant is known to the Turkish authorities as a politically active member of the CHP who is imputed to support the CHP.
·the applicant has been active in pro-CHP political activities over a number of years as a member of the party.
·he has been at risk of being arrested and mistreated a number of times.
·in June 2013 he was in the forefront of the Gezi Park demonstration which made him a familiar face within the Bagcilar neighbourhood.
·he was struck on the head with a baton by a policeman.
·after receiving the medical treatment the police drove him to the police station. They questioned him on the way to the station. They did not charge him with any offence however, was advised he will be hearing from them.
·on or about [Date] June 2013, while travelling to the celebration with friends he was confronted and attacked by a group of 15-20 people.
·he was beaten and he suffered a fractured arm.
·his friends took him to the hospital for treatment.
·in 2012 he joined the CHP and he would design and prepare placards and brochures.
·he would also distribute newspapers and other political paraphernalia in support of CHP candidates.
·he attended various CHP meetings
·in around October 2012 he was stopped by police at night when he was in the process of returning from family visit.
·he was travelling from [Town] to Istanbul and questioned about his identity and his destination and his activities, including whether he was involved with the CHP-organised protest in Istanbul.
·he was asked to sign a document and refused to sign the paper.
·following the incident he stayed at home for 1-2 days and then went to live with friends.
·he began living in hiding at a friend's house until he eventually managed to flee to [Country 1].
·upon returning to Turkey the applicant remained on the run as he had become aware that the police were randomly arresting CHP supporters, members and officials. He discovered that all party members and officials of the CHP in Istanbul had been arrested and mistreated.
·some of his friends from Bagcilar were taken away and imprisoned.
·he is known to the Turkish authorities as a politically active member of the CHP who is imputed to support the CHP.
·He has been active in pro-CHP political activities over a number of years as a member of the party.
·he has been at risk of being arrested and mistreated a number of times.
·he became interested in CHP due to its inclusion of the youth at the time. He became involved with the youth arm of the CHP, including the delegations.
·he became more active in the party by preparing placards and brochures.
·he would also distribute newspapers, paraphernalia and attend CHP meetings on various occasions. However due to the difficulties caused by the authorities, he was unable to attend CHP meetings as regularly as he desired.
·he joined the party to advance the CHP nationalist and social democratic balance of ideology objectives in Turkey.
·he attended Gezi Park protests or any other protest.
·he was arrested and put in custody and had been bumped as a result.
·he was arrested for protesting.
·he faces call up for military service.
·15-20 people attacked him.
·he was travelling to a celebration with friends, whereupon he was set upon, suffering a fractured arm.
·he was taken to hospital by his friends.
The prospect of there being a well-founded fear of persecution under these headings is remote.
These conclusions are drawn even as Tribunal expressly makes no finding or assumption that the applicant needs to, could, should or would relocate, or modify his behaviour, upon return.
The Tribunal can discern no other potential source of harm for the applicant.
Does the applicant meet the complementary protection criteria?
The Tribunal turns now to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act: s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The courts have reasoned that the ‘real risk’ test aligns with the ‘real chance’ test.
The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors in order for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
As the Tribunal has found against his claims of potential harm it does not accept that substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that the applicant will suffer significant harm.
The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
The Tribunal is also not satisfied that there is a real risk of significant harm in the form of arbitrary deprivation of life.
The Tribunal can discern no other potential source of harm for the applicant.
CONCLUSION

100. 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) of the Act.
101. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act.

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

103. The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
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 408

7 February 2022

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