1818044 (Refugee)

[2023] AATA 463

1818044 (Refugee) [2023] AATA 463 (20 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Attila Mete (MARN: 0427776)

CASE NUMBER:  1818044

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Jason Pennell

DATE:20 January 2023

PLACE OF DECISION:  Melbourne        

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 January 2023 at 9.36am

CATCHWORDS  
REFUGEE – protection visa – Turkey – religion – non-religious – Alevi – ethnic Kurd – imputed political opinion – anti-government – particular social group – member of an Alevi Kurdish family – member of the Tezcan tribe – relationship with a Sunni Muslim girl – honour killing – mental health – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 5K, 36, 65 
Migration Regulations 1994 (Cth), Schedule 2 

CASES 
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
Randhawa v MILGEA (1994) 52 FCR 437
V v MIMA (1999) 92 FCR 355

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Turkey, applied for the visa on 13 October 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).   

3. The applicant appeared by video hearing before the Tribunal on 10 December 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, Mr Attila Mete of AUM Lawyers.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

APPLICANT’S Claims and evidence

Applicant’s Identity and Country Reference

1. The applicant claims that he was born on [date] in Altindag, Ankara, Turkey.[1] He claims he is a citizen of Turkey and provided the Department with a certified copy of his Turkish Passport[2], a certified copy of his Turkish national ID[3], a certified copy of his Turkish driving licence issued in 2007[4] and a certified copy of his Australian driver licence issued by the state of Victoria, expiring in 2017[5]. There is no evidence before the Tribunal indicating that these documents provided by the applicant to the Department were bogus as defined under ss.5(1) of the Act.

   [1]    Protection visa application form dated 12 October 2015, Department File [number], Doc ID 4464823.

   [2]    Turkish Passport, Department File [number], Doc ID 4464819.

   [3]    Turkish National ID, Department File [number], Doc ID 4464821.

   [4]    Turkish driving licence, Department File [number], Doc ID 4464822.

   [5]    Australian driver licence (VIC), Department File [number], Doc ID 4464818.

2. The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the applicant to the Department, the Tribunal accepts and finds that the applicant is a citizen of Turkey as claimed and as such, his protection claims will be assessed against Turkey as the country of reference and ‘receiving country’.

Applicant’s Migration History   

1. The applicant first arrived in Australia [in] January 2012 on a student visa (TU-573) and was granted a further Student visa (TU-572) onshore on 3 April 2013. The applicant departed Australia [in] September 2014 and returned to Australia [in] August 2015[6]. Details of the applicant’s travel history are as follows:

   [6]    Department of Home Affairs - Mainframe Movement Records dated 8 July 2021, AAT File No: 1818044, Doc ID No: 8593287.

Date	Travel details
[Date] January 2012	Transit (2 hours) - [Country 1]
[Date] January 2012	Arrived in Australia, TU-570 Student visa
[Date] September 2014	Departed Australia, TU-573 Student visa
[Date] September 2014	Transit (2 hours) – [Country 2]
[Date] August 2015	Transit (2 hours) - [Country 3]
[Date] August 2015	Arrived in Australia, TU-573 Student visa

1. The applicant listed his employment history in his protection visa application and his statement of claim indicates that he returned to Turkey and worked in Ankara, Turkey between January and July 2015. The applicant claims that he fled Turkey and arrived in Australia [in] August 2015. The applicant lodged a Protection visa (XA-866) application in Australia on 13 October 2015. He was granted a Bridging via (WA-010) on 14 October 2021 in association with this application and currently remains the holder of this visa[7].

Claims for protection

[7]    ibid.

1. The applicant first submitted claims for protection when he lodged his protection visa application to the Department.[8] The applicant’s claims were detailed in his statutory declaration dated 13 October 2015[9] which was included with his protection visa application. The applicant claims as follows:

   [8]    Protection visa application form dated 12 October 2015, Department File [number], Doc ID 4464823.

   [9]    Department File [number], Doc ID No: 4464824.

   ‘Why I left my country:

   In August 2015 I fled Turkey as I knew that if I remained, I would be killed by my father or his cousin whose daughter they tried to force me to marry. These types of honour killings happen all the time in Turkey especially from family’s such as mine.

   What I fear might happen if I go back to my country:

   I believe that I will be seriously harmed or killed by my father or my father’s cousin. I come from a very religious Alevi family and my father, and his cousin made promises to each other relating to me marrying his daughter. My father’s cousin’s honour has also been tarnished by me refusing to marry her and I fear that my father’s cousin will also kill me. My father will kill me because I have bought shame on the family, forced him to break his promise and destroyed his integrity and honour.

   Who I think will harm me or mistreat me if I go back:

   I believe that I will be harmed by my father as my father’s cousin. I also fear form my extended family as we are a very religious family and I have bought shame to my family.

   Why I believe they will harm me or mistreat me if I go back:

   I believe I will be killed to redeem my family’s honour. My father and my father’s cousin have both had their honour tarnished by my refusal to marry my father’s cousin’s daughter.

   Why I believe that the authorities in my country will not protect me if I go back:

   Turkish authority is made up of Sunni Muslims that are also very religious. As such, I believe that they will not protect me given that I have also gone against Islam because we are Alevi and also because I was wit a Sunni Muslim girl. My father also has connections within the authorities and as such, I fear that if I was to seek their assistance, this would simply end in my father being provided with my address.

   Why I believe I will suffer significant harm:

   Turkish society is one that values honour and I have tarnished both the honour of my father as well as the honour of my father’s cousin. Given our family are religious, I also do not believe that my father’s cousin’s daughter will be able to marry anyone else and as such, her integrity and honour has also been tarnished. I know for a fact that my father will kill me for these reasons. I also fear that he may apply to come to Australia to find me and kill me.

   Why I cannot relocate

   My family tribe is very large having members all over Turkey. My father is also well connected given his status as a gang leader when he was younger. I don’t have any friends that can assist me or that I can live with outside of Ankara. Anywhere that I move, I will need to register my address with the authorities, and I believe that my father will be able to get these details using his connections….’

2. The delegate of the Department summarised the applicant’s claims as follows[10]:

   ·      The applicant claims that in August 2015 he fled Turkey because, if he remained, he would be killed by his father or his cousin, whose daughter they were attempting to force him to marry. These types of honour killing happen all the time in Turkey, especially in a family such as his. His ethnicity is Kurdish, and his religion is Alevi.

   ·      His father is a very connected man in Ankara. When he was younger, he was the ringleader in a gang. His father is also very religious and adheres to the Alevi faith. Alevis in Turkey have always been persecuted and his father believes that Alevis should marry within the faith.

   ·      After the applicant returned to Turkey in September 2014, he met a Turkish girl named [Ms A]. She was of [deleted] ethnicity and a Sunni Muslim. They started dating in February 2015. On around 19 July 2015, he told his family that he wanted to marry [Ms A]. When his father heard that [Ms A] was Sunni, he became angry and told him that if he did not break up with her, he would suffer dire consequences. The applicant left home and stayed with his brother.

   ·      On 29 July 2015 his father asked him to come home. When he went home his father told him that he had asked his cousin for his daughter’s hand in marriage on the applicant’s behalf. When the applicant told his father he did not want to marry his cousin’s daughter, his father became angry and aggressive. His father told him that if he backed out, he would kill him. His father took a knife from the table and walked towards him. His mother intervened. His father hit him with his fist. The applicant ran away and went to his brother’s place, and then left Turkey.

   ·      After arriving in Australia, his brother told him that his father will kill him if he returns to Turkey. He knows that his father has guns at home and must kill him to “cleanse” his name.

   ·      If he returns to Turkey, he believes that he will be seriously harmed or killed by his father or his father’s cousin. He comes from a very religious Alevi family and his father, and his cousin made promises to each other about the marriage. His father’s cousin’s honour has also been tarnished by his refusal to marry his daughter. His father will kill him because he has brought shame on the family, forced him to break his promise and destroyed his honour. He also fears harm from his extended family. He does not believe that his cousin’s daughter will be able to marry anyone else, as her integrity and honour have also been tarnished.

   ·      He does not believe that the authorities will protect him. The Turkish authorities are made up of Sunni Muslims who are also very religious. They will not protect him because he is Alevi and because he was in a relationship with a Sunni Muslim girl. His father has connections within the authorities, and this would mean that his father would know where he was residing.

Applicant’s supporting documentation

[10]   Dept File [number], Doc ID No: 4464838.

1. The applicant provided the following additional material to the Department and Tribunal in support of his protection claims:[11]

   [11]  Department File [number]

   (a)certified copy of his current Turkish Passport, expiring in 2023[12]

   [12] Turkish Passport, Department File [number], Doc ID 4464819.

   (b)certified copy of his previous Turkish passport, expired in 2013[13]

   [13] Turkish Passport, Department File [number], Doc ID 4464820.

   (c)certified copy of his Turkish national ID[14]

   [14] Turkish National ID, Department File [number], Doc ID 4464821.

   (d)certified copy of his Turkish driving licence, issued in 2007[15] a

   [15] Turkish driving licence, Department File [number], Doc ID 4464822.

   (e)certified copy of his Australian driver licence issued by the state of Victoria, expiring in 2017[16]

   [16] Australian driver licence (VIC), Department File [number], Doc ID 4464818.

   (f)representative’s legal submissions, dated 11 April 2018[17]

   (g)list of newspaper articles with relevant headings accompanied by uncertified English translation[18]

   (h)email correspondence between the applicant and his girlfriend in Turkish[19] accompanied by certified NAATI English translation[20]

   (i)representative’s legal submissions, dated 21 September 2021. [21]

   (j)treating psychologist report assessing the applicant, issued by [named] Psychological Services on 28 September 2021. [22]

   (k)list of newspaper articles with relevant headings accompanied by uncertified English translation.[23]

   (l)Mediterranean Journal of Humanities paper titled Depiction of Honour Killings in the Media: A Study of Male Victims, provided in Turkish with various paragraphs highlighted and accompanied by uncertified English translation. [24]

   (m)Applicants ‘Further submissions in support of application for Administrative Appeals Tribunal’ dated 22 December 2022.[25] 

Applicant’s evidence

[17] Department File [number], Doc ID 4464831

[18] Ibid.

[19] Ibid.

[20] Department File [number], Doc ID 4464835.

[21] AAT file 1818044, Doc ID No: 8893740.

[22] AAT file 1818044, Doc ID No: 8893740.

[23] AAT file 1818044, Doc ID No: 8893740.

[24] AAT file 1818044, Doc ID No: 8893740.

[25] AAT file 1818044, Doc ID No:10584947

1. The applicant’s evidence was that he was born in Ankara, Turkey on [date]. He claims that he is a Turkish citizen and that he is an ethnic Kurd and that his religion is Alevi. The applicant can speak, read and write in Turkish and English.[26] The applicant has never been married and has no children.

   [26] Protection visa application form dated 12 October 2015, Dept File: [number] Doc ID:4464823

2. The applicant’s evidence was that his mother and father continue to live in Ankara, Turkey. His father is a retired [Occupation 1]. The applicant has an older brother who continues to live in Ankara, Turkey. His brother is married with one son and works for a [company] known as [Company 1]. The applicant has an uncle who lives in Australia.

3. The applicant claims that he attended school in Turkey. [27] From September 1992 to June 2001 he attended [a] Primary School, Turkey and from September 2001 to June 2004 he attended [a] High School, Turkey. The applicant completed pre-university exam studies at [an educational institute], Turkey from September 2004 to June 2006, and from September 2006 to January 2011 he completed a bachelor’s degree in [Discipline 1] at [University 1], Turkey.[28]

   [27]   Protection visa application form dated 12 October 2015, Dept File: [number] Doc ID:4464823

   [28]   ibid

4. The applicant arrived in Australia in January 2012 and from February 2012 to January 2013 studied English at [an education provider], Australia. The applicant then completed [a qualification] at [a different education provider], Australia from April 2013 to September 2014.[29]

   [29]   ibid

5. The applicant claims that while at university he became involved in small political events. His evidence was that he was involved in junior politics for a short period of time while at university.[30] He was a supporter of the Democratic Society Party (Demokratik Toplum Partisi (DTP)) which was later replaced by the Peace and democracy Party (Baris ve Demokrasi Partisi (BDP)) and that he would attend meetings and group discussions.[31]  He claims that the fascist party, the Nationalist Action Party (Milliyat Hareeket Partisi (MHP)) has a strong influence at [University 1] and monitors and restricted the activities of students at the university.[32] The applicant claims that as a result he was forced to oblige by the strict rules of the university to continue his education.  The applicant clams that the Turkish government register people who hold antigovernment views. While his political involvement was minimal, he claims that because of his views he will not be able to access protection from authorities in Turkey.   

   [30]   Applicants ‘Further submissions in support of application for Administrative Appeals Tribunal’ dated 22 December 2022; AAT file 1818044, Doc ID No:10584947

   [31]   ibid

   [32]   ibid

1. In his protection visa application,[33] the applicant claims that from September 2010 to January 2011 he worked in Turkey as an [Occupation 2] for a company called [Company 2]. The applicant claims that he then worked as a self-employed [Occupation 3] from January 2011 to January 2015 in Turkey.  From January 2015 to July 2015 that applicant claims that he worked as a [Occupation 4] for a company called [Company 3] in Turkey. The applicant claims that in Australia from July 2014 to September 2014 he worked as a part-time [Occupation 5] for [Company 4]. [34]

   [33]   Protection visa application form dated 12 October 2015, Dept File: [number] Doc ID:4464823

   [34]   ibid

2. The applicant’s evidence[35] was that he could not return to Turkey because he would be killed by his father or his cousin whose daughter he had been promised to marry. The applicant claims that his father is a very well-connected man in Ankara, Turkey. The applicant’s evidence was that his father was once the ringleader of a gang in Ankara and is a leader of his Tezcan Tribe. As a result, he is well known and demands respect. The applicant claims that his father is very religious and adheres to the Alevi faith.[36] The applicant claims that the Alevi’s in Turkey have always been persecuted and as such, his father has a strong belief that as an Alevi, a person must marry within the faith.[37]

   [35]   Applicant’s statement of claims Dept File: [number] Doc ID: 4464824

   [36]   ibid

   [37]   ibid

3. The applicant’s evidence[38] was that when he left Australia in September 2014 it was his intention to return to Turkey to live permanently. The applicant commenced working in January 2015 and in February 2015 started dating a Turkish girl. Her name was [Ms A]. She was an ethnic [deleted] and a Sunni Muslim. The applicant met her at a party held for a mutual friend. At the time they met it was the anniversary of her mother’s death. The applicant’s evidence was that they initially remained friends, but their relationship developed to the point that they spent as much time as possible with each other. He claimed that it was difficult in Turkey to openly develop a relationship with [Ms A], but they would see each other regularly outside working hours. After a certain time, they began discussing marriage. The applicant claimed that it was not an issue for him that [Ms A] was a Sunni Muslim, and it was not a problem for [Ms A] that he was Alvei. Her mother had passed away and her father was not religious and not strict with her. He just wanted her to be happy.

   [38]   ibid

4. The applicant’s evidence was that he did not formally propose to [Ms A] as he had to discuss the issue of his marriage with his parents first. As a result, on or about 19 July 2015, over dinner, the applicant informed his parents of his intention to propose to [Ms A].[39] The applicant’s evidence was that he was very nervous to discuss the issue with his parents and had to build up the courage to tell his parent’s about [Ms A]. The applicant claims that while sitting at the dinner table with his parents, he informed them that he had been dating [Ms A] for approximately 5 months. His mother was happy for the applicant and said that if two people love each other they should go forward together. She wanted her children to be happy. However, his father had a different reaction. He initially asked if she was Alevi or Sunni. After the applicant told him that [Ms A] was Sunni, the applicant’s father became angry and started swearing at the applicant and cursing [Ms A] and her family. The applicant’s father threw a plate on the ground and throwing the food from the table. He approached the applicant upon which his mother intervened and ordered the applicant to leave.[40] The applicant’s father demanded that he break the relationship with [Ms A] and threatened that he would ‘suffer the consequences’ if he did not do so. The applicant claims that he immediately left home and ran to his brother home which was approximately a 20-minute walk away for his parents’ home. The applicant explained to his brother what had appended. As a result, the applicant’s brother went to speak to their father. When he returned, he said to the applicant that he will be staying with him and his wife for a while. As a result, the applicant remained living with his brother and his wife.[41]

   [39]   ibid

   [40]   ibid

   [41]   ibid

5. Approximately 10 days later, on or about on 29 July 2015, the applicant’s father called the applicant and asked him home for dinner. The applicant’s evidence was that his father’s voice was calm, and he thought his father may have had a change of heart. As a result, the applicant agreed to have dinner at his parents’ house.

6. The applicant’s evidence[42] was that when he sat down at the dinner table his father advised that he was going to get straight to the topic. The applicant said that his father told him that he had considered the fact that he was contemplating getting married and as a result had contacted his cousin and asked his daughter’s hand in marriage on the applicant’s behalf.[43] The applicant’s father explained to the applicant that he had made the choice because she was Alevi and from within the family. The applicant’s evidence[44] was that he immediately told his father that he did not want to marry his cousin’s daughter upon which his father became angry and aggressive, swearing at the applicant. The applicant’s father demanded that the applicant marry his cousin’s daughter as he had made a promise to his cousin and could not go back on his word.[45] The applicant’s evidence was that his father said to him that if he backed out of the marriage, he would kill the applicant.[46] The applicant repeated to his father that he did not wish to marry his cousin’s daughter in response to which the applicant father stood up, grabbed a knife from the table and walked towards the applicant. The applicant’s mother once again intervened upon which the applicant father struck her with his fist and loosing grip of the knife. He then lunged at the applicant and hit him with his fist. When the applicant realised that his father no longer had the knife in his hand, he ran for the door and escaped. The applicant went to his brother’s home. After the applicant had arrived at his brother’s home, his father rang to ask if he was there. The applicant’s brother lied and told his father that he hadn’t seen the applicant that day and that he had not called him.[47]

   [42]   ibid

   [43]   ibid

   [44]   ibid

   [45]   ibid

   [46]   ibid

   [47]   ibid

7. The applicant’s evidence was that his brother told him to leave Turkey as he was not safe for him. The applicant’s evidence was that he did a Vevo check to check to see if his visa was still current which confirmed that he still had some time on his student visa. As a result, he went into the Australian Embassy in Turkey to confirm he was able to enter Australia. He then purchased the earliest tickets he could find to depart Turkey and left the country [in] August 2015, that is 4 or 5 days after his father had threatened him. After arriving in Australia, the applicant’s brother said to him that if he returned to Turkey their father will kill him. The applicant claims that his father owns guns and will kill him upon his return to Turkey to cleanse his name. The applicant claims that by refusing to marry his Alevi Kurdish cousin he has brought shame on the family. As a result, he claims that there is a real chance he will be seriously harmed by his father if he is returned to Turkey.[48] 

   [48] Applicants ‘Further submissions in support of application for Administrative Appeals Tribunal’ dated 22 December 2022; AAT file 1818044, Doc ID No:10584947

8. The applicant claims that he spoke to his brother who informed him that his father’s cousin’s daughter’s ‘life is now over’ because she cannot marry another person due to the promise that she be married to the applicant. The applicant’s evidence was that he knew his cousin. However, he never contacted his father’s cousin or his daughter about the proposed marriage.

9. In addition, the applicant’s evidence to the Tribunal was that he did not speak to [Ms A] before leaving Turkey and has not spoken to her since arriving in Australia. The applicant’s evidence to the Tribunal was that he does not know what happened to her.

1. The applicant claims that he has cut ties with all people in Turkey because he wanted to make sure that no one was harmed. He claims that he cannot return to another part of Turkey because his father has friends, from his younger days, in the police force. He claims that if he was to move to another city to live, by renting a house or opening any utility account (e.g. gas or electricity), he must register with the with Mufta in the local area. The applicant’s evidence was that his father is friends with his local Mufta and has friends in the police as a result he will find the applicant in Turkey.

2. The applicant is working with a business partner in Australia and is currently developing a [business]. The applicant has been in a relationship in Australia for approximately a year and half. 

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No.84 of 24 June 2019 under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the DFAT. The Tribunal has referred to the current DFAT report on Turkey dated 10 September 2020 (the DFAT report).[49] In particular, the Tribunal has considered those parts of the DFAT report as detailed in annexure ‘A’ of these reasons.

   [49]  DFAT Report on Turkey, dated 10 September 2020:

CONSIDERATION OF Claims and evidence

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[50] Section 5AA of the Act provides that it is the responsibility of the applicant for a protection visa to specify all particulars of his or her protection claim and provide sufficient evidence to establish the claims. Section 5AAA is intended to encourage applicant to present all claims with their primary application to assist the decision maker to establish the relevant facts.[51]  The Tribunal should be sensitive to the difficulties faced by the applicant and be prepared to give the benefit of the doubt in circumstances where the applicant appears creditable.

   [50] s.5AAA Migration Act 1958.

   [51]   PAM3, Refugee and Humanitarian, PAM Protection visa All applications Common Processing Guidelines, s.36-37

3. However, the Tribunal is not required to accept uncritically all the allegations made by an applicant.[52] A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[53] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [52]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

   [53]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[54] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

   [54]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. In considering the overall the credibility of the applicant, the Tribunal refers to Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which Beaumont J stated that 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants'. In addition, the Tribunal refers to Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191, in which Gummow and Hayne JJ said that 'the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising'. The Tribunal has sought to adopt in this case a liberal attitude in consideration of the applicant’s claims in this case.

Applicant’s Refugee Claim

Relevant Grounds

1. The applicant claims to have a well-founded fear of persecution within the scope of s 5J(1) of the Act by reason of his religion, his political opinion, and his membership of a particular social group, as member of an Alevi Kurdish family who are part of the Tezcan tribe.[55]

   [55]  Applicant’s submission dated 28 September 2021 at p.1 AAT file No 1818044 Doc ID 8893740 & Applicant’s submission dated 11 April 2018 at p.3, Dept File No [number] Doc ID: 4464831. Applicants ‘Further submissions in support of application for Administrative Appeals Tribunal’ dated 22 December 2022; AAT file 1818044, Doc ID No:10584947 

2. As to the applicant’s religion, he claims to be Alevi. The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[56] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

   ‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’

   [56] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22]).

3. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[57] as:

   ‘71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   73.Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’

   [57] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [71]-[73] >

   The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[58]  It will often depend on the motivation of the persecutor or, in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[59] It will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[60] In all the circumstances it requires an assessment, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[61]

   [58] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.

   [59]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

   [60]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

   [61]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

4. In this case, the applicant claims that despite being Alevi (a minority religion in Turkey) he is not religious and will be identified as such if he is returned to Turkey. The applicant submits that the government in Turkey is ultra-religious following the Sunni sect and as a result there is a real chance that he will seriously harmed if he is returned to Turkey. Based on the applicant’s evidence and for the reason expressed below, the Tribunal accepts that the applicant is Alevi as claimed.  Therefore, based on the applicants’ own evidence and the documentation provided, the Tribunal accepts the applicant’s claim falls within s 5J(1)(a) of the Act by reason of his religion.

1. In relation to the applicant’s political opinion, it is not necessary for the applicant to hold an actual opinion; rather, it is sufficient for his political opinion to be imputed to him by the persecutor.[62] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[63] provides that it is necessary for an applicant to show that they have a fear of persecution for holding a political opinion as ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status.’

   [62]    MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416] per Gaudron J and at [433] per McHugh J.

   [63]    UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80–86]; Chan v MIEA (1989) 169 CLR 379 at [392].

2. The Full Federal Court in V v MIMA[64] observed in relation to a person’s political opinion that:

   (a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[65]

   (b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[66]

   (c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[67]

   (d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform, or implicitly by reference to acts reflective of an unstated political agenda, will be the holding of a political opinion;[68]

   (e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[69]

   [64]    V v MIMA (1999) 92 FCR 355 at 363. The Court’s observations were made in the context of dealing with the Convention.

   [65] Ibid at 363.

   [66] Ibid.

   [67]    V v MIMA (1999) 92 FCR 355 at 367.

   [68]    V v MIMA (1999) 92 FCR 355 at 367.

   [69]    V v MIMA (1999) 92 FCR 355.

1. In this case the applicant claims that coming from an Alevi Kurdish family that is part of the Tezcan Tribe that he will be persecuted in Turkey due to his Kurdish ethnicity and Alevi roots. He claims that because of his ethnic and religious background he will be imputed with the political opinion of being against the government in Turkey.[70] Based on the applicant’s evidence, the Tribunal accepts that his claim of having a well-founded fear of persecution because of his political opinion falls within s 5J(1)(a) of the Act.

   [70]   Applicant’s submission dated 28 September 2021 at p.6 AAT file No 1818044 Doc ID 8893740 & Applicant’s submission dated 11 April 2018 at p.7, Dept File No [number] Doc ID: 4464831. 

2. Finally, the applicant submits his claims fall within the scope of s 5J(1)(a) of the Act as a member of a Particular Social Group (PSG) as being a member of an Alevi Kurdish family and as part of the Tezcan tribe.

3. Section 5L of the Act states:

   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.

4. To be considered a member of a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group or it must be fundamental to a member’s identity or conscience or distinguish the group apart from society.[71]

   [71]    Section 5L, the Act.

5. In this case the applicant claims that coming from a family of Alevi Kurds and as a member of the Tezcan tribe, he is a member of a PSG. As to the applicant’s family, section 5K of the Act provides:

   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.

1. As a person who has refused to enter an arranged marriage and as such claims to be the target of an honour killing by his father, then applicant’s claim of a well-founded fear of persecution from his family, as a member of a PSG, may be disregarded under section 5K of the Act. However, the applicant does claim that he will be persecuted if he is returned to Turkey as an Alevi Kurdish person and a member of the Tezcan tribe. As such the Tribunal does accept that the applicant is a member of a PSG under s.5J(1)(a) of the Act as claimed.

   Applicant’s well-founded fear

2. Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.

3. In Chan v MIEA[72] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[73]

   [72] (1989) 169 CLR 379 at 396.

   [73] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

4. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to Iraq.

5. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [74]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [74]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.

6. In MIEA v Guo, the Court stated that: ^[75]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [75]    MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

7. Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on both a subjective and objective basis if he is returned to Turkey. 

Accepted facts

1. Based on the applicant’s evidence and the documentation provided to the Tribunal by the applicant, the Tribunal accepts and finds that the applicant:

   (a)was born in Ankara, Turkey on [date].

   (b)is a Turkish citizen.

   (c)is an ethnic Kurd and that his religion is Alevi.

   (d)can speak, read and write in Turkish and English.[76]

   (e)is not married and has no children.

   (f)mother and father continue to live in Ankara, Turkey. His father is a retired [Occupation 1].

   (g)has an older brother who continues to live in Turkey. He is married and has one son.

   (h)attended [a] Primary School in Turkey[77] from September 1992 to June 2001 and [a] High School in Turkey from September 2001 to June 2004.

   (i)completed pre-university exam studies at [an educational institute], Turkey from September 2004 to June 2006,

   (j)studied [Discipline 1] at [University 1], Turkey[78] from September 2006 to January 2001

   (k)The applicant arrived in Australia in January 2012 and from February 2012 to January 2013 studied English at [an educational provider], Australia and from April 2013 to September 2014 obtained [a qualification] at [a different education provider], Australia.[79] 

   (l)in Turkey worked as an [Occupation 2] for a company called [Company 2],[80] as a self -employed [Occupation 3] and as a [Occupation 4] for a company called [Company 3].

The Applicant’s religion.

[76]   Protection visa application form dated 12 October 2015, Dept File: [number] Doc ID:4464823

[77]   Protection visa application form dated 12 October 2015, Dept File: [number] Doc ID:4464823

[78]   ibid

[79]   ibid

[80]   ibid

1. The applicant claims that if he is returned to Turkey he will be seriously harmed because of his lack of religion.[81] In addition, the applicant claims that because his family are ‘ultra-religious’ followers of the Alevi faith[82] he will be imputed with the Alevi Shia faith.[83] 

   [81]   Applicant’s submissions date 28 September 2021 at p.6; AAT file No 1818044 Doc ID 8893740.

   [82]  Applicant’s submissions date 28 September 2021 at p.4; AAT file No 1818044 Doc ID 8893740

   [83]  Applicant’s submissions date 28 September 2021 at p.6; AAT file No 1818044 Doc ID 8893740

2. The applicant’s evidence was that he is not religious and will be identified as such if he is returned to Turkey. He claims that the Turkish government and its supporters are ultra-religious following the Sunni sect.[84] He claims that religious education is compulsory at school in Turkey and that anyone who moves away from Islam is likely to be targeted by both the authorities and well as supporters of the government and the President.[85]  The applicant’s evidence to the Tribunal in relation his religious beliefs was vague and lacking in detail. Nevertheless, his evidence was that it did not matter to him that his girlfriend in Turkey, [Ms A], was Sunni rather than Alevi. In addition, his evidence was that it was not an issue for [Ms A]’s family that the applicant was Alevi. Based on the applicants own evidence the Tribunal accepts that his family are Alevi. In addition, based on his own evidence the Tribunal accepts and finds that the applicant is not religious as claimed.[86] 

   [84]   ibid

   [85]  ibid

   [86]  Applicant’s submissions date 28 September 2021 at p.4; AAT file No 1818044 Doc ID 8893740

3. The Turkish constitution defines the country as a secular state and provides for freedom of conscience, religious belief, conviction, expression, and worship.[87]  It stipulates individuals may not be compelled to participate in religious ceremonies or disclose their religion and acts of worship may be conducted freely as long as they are not directed against the “integrity of the state.”[88] Discrimination on religious grounds and exploitation or abuse of “religion or religious feelings, or things held sacred by religion” is prohibited.[89]   

   [87]   2021 Report on International Religious Freedom: Turkey  2 June 2022 http:/ww.state.gov/reports/2021-report-on-international-religious-freedom/turkey/

   [88]  ibid

   [89]  ibid

4. The country information reports that despite the Turkish authorities portraying Turkey as a homogeneous country with a 99.8% Islamic population, it is a country with diverse religious beliefs.[90] As a signatory of the 1923 Treaty of Lausanne, Turkey recognizes the civil, political and cultural rights of non-Muslim minorities.[91] Although low in numbers Turkey’s population includes Christians, Jews, Greek Orthodox and other diverse religions. Nevertheless, the main religious group outside of Sunni Islam is the Alevi, making up about  15-25% of the population.[92] Its reported that they are distributed through the country but concentrated in the central and inner eastern regions Anatolia, Istanbul and other major centres.[93]

   [90]   Forbes, ‘Religious Diversity And The Alevi Struggle For Equality In Turkey’ by Alev Dudek 10 Feb 2017;  http/: ibid

   [93] DFAT Report at p.24

5. Alevism is branch of the Islamic faith that differs from the mainstream by incorporating Shia, Sufti, Sunni and local traditions.[94]  It is based on humanistic ideals of love and tolerance expressed in mystical poems instead of strict rules, passed on through oral tradition.[95] Many Alevi’s are Kurdish, although the reported estimated number varies considerably.[96]  Alevi’s read from the same Islamic texts as mainstream Muslims but worship in a prayer hall, known as a ‘cemevi,’ rather than a mosque. Men and women pray together and worship in Turkish rather than Arabic and are not expected to pray five time per day.[97] It’s reported that while some Alevi’s regard their religion as separate, some identify as Shia or Sunni and regard their Alevi identity as a cultural difference rather than in religious terms.[98] 

   [94]   ibid

   [95]  Forbes, ‘Religious Diversity And The Alevi Struggle For Equality In Turkey’ by Alev Dudek 10 Feb 2017; ibid

   [97]  ibid

   [98]  ibid

6. The Turkish state does not recognise Alevism as a separate religion and considers them to be Muslims.[99] In the past Alevi’s have been dehumanized, harassed, and subjected to attacks and killings. Massacres have occurred, including  in Kahramanmaraş in 1978 and in Sivas in 1993.[100] However, in December 2008, the Minister of Culture participated in the opening of the first Alevi Institute and apologised to the Alevis for past sufferings caused by the state.[101] As such, today Alevi’s can demand rights that they were previously denied.[102] It’s reported that Alevi’s are able to conduct their religious ceremonies and celebrate religious festivals without official interreference.[103] However, it is reported[104] that the hopes of faring better under a secular republic do not take account of popular prejudice.  As they have drifted toward towns in search of work, Alevis, especially Kurds, have suffered prejudice and animosity from the Sunni population. This was often reflected at an official level, with policies that included the lack of legal status of Alevi cemevis and prohibition of their construction which remained until 2015. Given such prejudice and animosity, Alevi’s generally keep a low societal profile and do not highlight their religious identity, including in the way they dress.[105]  

   [99]  ibid

   [100]  Hurriyet, ‘Turkey commemorates 15^th anniversary of Sivas massacre.’ Güncelleme Tarihi 02/08 Turkey Insight Vol12/No2/2010. ‘The AKP and the "Alevi Opening": Understanding the Dynamics of the Rapprochement.’ At p.143-164, Talha Kose, http:/  Forbes, ‘Religious Diversity And The Alevi Struggle For Equality In Turkey’ by Alev Dudek 10 Feb 2017; ibid

   [104]  Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Turkey : Alevis, June 2018, available at: ibid

7. Consistent with the applicant’s evidence, the country information reports that pursuant to article 24 of the Constitution, religious education is compulsory at both primary and secondary levels in Turkey, with instruction primarily in Sunni theology. However, Alevi’s claimed discrimination because of the government’s failure to include their doctrines and beliefs in religious courses. In addition, in 2007, the European Court of Human Rights (ECHR) ruled in favour of an Alevi parent claiming that the mandatory religious courses violated religious freedom.[106] As a result, the Turkish government added an overview of Alevism to curriculum for the final year of religious instruction.[107]

   [106]  Made for Minds, ‘Court: Turkey discriminates against Alevis’, Mark Hallam  26 April 2016. http/: 2008 Human Rights Report: Turkey, Bureau of Democracy, Human Rights and Labour (US State Department); 25 February 2009 http:web.archive.org/web/20090226174709/ htm 

8. Alevis are involved in the political process in Turkey, primarily through the Republican Peoples Party (‘CHP’), a centre left opposition party.  They can obtain employment in the public sector and serve in the military, although it’s reported that some Alevi’s claim they have been denied promotion due to their religious background.[108] DFAT assess that Alevi’s face a low risk of official and societal discrimination, despite not being recognised as a separate religion they can worship freely and participate in Turkish life.[109] Further its reported that Kurdish Alevi do not face any additional religious discrimination beyond those of the Alevi faith.[110]

   [108]  DFAT Report at p.25

   [109]  ibid

   [110]  ibid

9. Therefore, while the Tribunal accepts that the applicant may experience some societal discrimination as a member of the Alevi faith, based on the available country information, it does not accept that there is a real chance the applicant will be seriously harmed if he is returned to Tukey by reason of his Alevi faith as claimed.

10. Finally, the applicant claims that there is a real risk he will be seriously harmed because he is no longer religious. However, its reported[111] that there is a growing number of Turks, particularly amongst the younger generations,[112] who are agnostic, deities or atheists.[113] While the country information records that people who are religiously unaffiliated have experienced societal harassment in Turkey,[114] it was not reported that any such harassment amounted to serious or significant harm. The applicant did not provide the Tribunal with any evidence of having been harassed in Turkey because he was not religious. As such, the Tribunal finds that any social harassment the applicant may experience upon his return to Turkey will not amount to serious or significant harm.

    [111]  ibid

    [112]  The Guardian, ‘Turkish students increasingly resisting religion’ Bethan McKernan 20 April 2020 http:/ww.theguardian.com/world/2020/apr/29/turkish-students-increasingly-resisting-religion-study-suggests

    [113] BBC News ‘Young Turks Rejecting Islam’ 10 May 2018, http:/ Religion Watch Vol 34 No 3 ‘Turkey seeing a rise in young people rejecting Islam’ http:/ Pew Research Centre, ‘Religiously unaffiliated people face harassment in growing number of countries’ dated 21 August 2019 http:/>

    It is reported that under the penal code blasphemy is outlawed. A person may be punished for ‘provoking people to be rancorous and hostile,’ including showing public disrespect for religious beliefs, and criminalizes ‘insulting values held sacred by a religion.’[115] However, in this case there was no evidence of the applicant being engaged in activities that would be considered blasphemous. In fact, given the applicant’s family are believers of the Alevi faith, he appears to have been respectful of their religious beliefs. In addition, the fact that the applicant claims to have wanted to marry [Ms A], a Sunni Muslim, indicates that he is also respectful of others religious beliefs. 

    [115] 2008 Human Rights Report: Turkey, Bureau of Democracy, Human Rights and Labour (US State Department); 25 February 2009 http: web.archive.org/web/20090226174709/ htm

11. Therefore, based on the available country information the Tribunal does not accept that there is a real chance the applicant will be seriously harmed if he is returned to Turkey by reason of him not being religious as claimed.

Applicant as an ethnic Kurd

1. The applicant’s evidence was that he comes for an Alevi Kurdish family that are part of the Tezcan tribe. He claims that they have a large presence in Ankara having migrated from East Turkey.[116] The applicant claims that he had difficulties in Turkey due to his Kurdish ethnicity and Alevi roots. The applicant stated that he was involved in junior politics while he was at university and supported the Kurdish cause.[117] However, he stated that he was not highly active as he was fearful of his family and the authorities.[118] 

   [116] Applicant’s submissions date 28 September 2021 at p.6; AAT file No 1818044 Doc ID 8893740

   [117] ibid

   [118] ibid

2. The country information reports that there are approximately 15 million Kurdish citizens in Turkey.[119] Traditionally they were concentrated in the south-eastern Anatolia and north-eastern Anatolia regions. It’s reported that many migrated into western Tukey to escape conflict and to seek better economic opportunities. Kurdish populations also exist in Istanbul and other major cities.[120] It is reported that the Kurdish population in Turkey is socio economically diverse with a growing middle class.[121] 

   [119]  DFAT Report at p.20

   [120]  ibid

   [121]  ibid

3. The traditional principal unit in Kurdish society was the tribe, typically led by a sheikh or an aga, whose rule was law. [122]  It is reported that the tribal identification and authority of sheikh are still felt today in the larger urban areas, albeit to a lesser degree. Traditionally, marriage occurred within the tribe or the ethnic group and in rural areas arranged marriages and child marriage are common.

   [122]  Britannica, ‘Kurd people,’ updated 28 November 2022 http:/>

   The government of Turkey has in the past treated the Kurds unsympathetically by attempting to deprive them of their Kurdish identity (designating them  as ‘Mountain Turks’) and outlawing the Kurdish language and by forbidding them to wear distinctive Kurdish dress in or near the important administrative cities.[123] The policies were deeply resented and it is reported that in more recent years have been gradually wound back.[124] In 1978 Abdullah Öcalan formed the Kurdistan Workers’ Party (‘PKK’), a Marxist organization dedicated to creating an independent Kurdistan. The PKK operated primarily from eastern Anatolia and engaged in guerrilla operations against the government committing frequent acts of terrorism. During the 1980s and ’90s a virtual state of war existed between the government and the PKK. In 1999, Öcalan’s was captured causing a sharp decline in the activities of the PKK.

   [123]  ibid

   [124]  DFAT Report at p.21

4. In 2002, under pressure from the European Union (in which Turkey sought membership), the government legalized broadcasts and education in the Kurdish language. While the Kurdish language cannot be used as a ‘mother tongue language’ for education in public schools it is now taught as an elective or as a primary language of instruction.  

5. In 2013 peace talks between Turkey and the PKK faltered, the result of which the government renewed its crackdown on the PKK.[125] In July 2015, a two-year cease-fire between Turkey’s government and the PKK collapsed following a suicide bombing by suspected self-proclaimed Islamic State militants that killed nearly thirty Kurds near the Syrian border. It is reported[126] that the security operations since 2015 have resulted in significant hardship for residents in the southeast. The attempted coup in 2016 significantly affected the right and freedoms of some Kurds.[127].  A crack down on suspected coup conspirators resulted in the arrest of an estimated fifty thousand people, and increased air strikes on PKK militants in south-eastern Turkey.[128] In 2017 and 2018 there were extensive human rights violations arising for the conflict including killings, torture, violence against women, excessive use of force, destruction of housing and other property.[129] It is estimated that during this period 100,000 people were displaced and lost their homes and up to 400,000 reallocated to other town, villages or regions within Turkey.[130] DFAT assessed that Kurds living in high conflict areas during this period faced a high risk of violence and discrimination from the Turkish authorities and the PKK.[131]  In 2020 DFAT assessed that while such civilians may continue to face housing issues, the risk of violence and harassment was low.[132] Nevertheless, notwithstanding the winding back of the discriminatory restrictions on minority groups, DFAT assess[133] that Kurds in Turkey do face official discrimination and from time-to-time societal discrimination based on their ethnicity. Those residing in the southeast and those active in politics or civil society organisations are at a higher risk.[134]

   [125]  Britannica, ‘Kurd people,’ updated 28 November 2022 http:/  ibid

   [127]  DFAT Report at p.21

   [128]  Global Conflict Tracker, ‘Conflict between Turkey and armed Kurdish groups’ 3 August 2022;  http:/

   [129]  DFAT report at p.21

   [130]  ibid

   [131]  ibid

   [132]  ibid

   [133]  DFAT Report at p.22

   [134]  ibid

6. The country information notes that Kurds from the southeast of the country are at a higher risk. The applicant is from Ankara, the capital of Turkey, located in the central part of Anatolia. The city is described by the country information as a vibrant cosmopolitan city of approximately five million people.[135] Pursuant to s.5J(1)(c) of the Act persecution must relate to all areas of the country. As the applicant is from Ankara the Tribunal finds that it is more likely that he will return to Ankara upon his return to Turkey. Therefore, in circumstances where the applicant and his family do not reside in the southeast of the country, have not been involved in the conflict between the PKK and the authorities and has not been actively involved in politics or civil society organisations, based on the available country information, the Tribunal finds that there is not a real chance the applicant will be seriously harmed if he is returned to Turkey by reason of him being an ethnic Kurd.

Applicant’s political opinion

[135] http;// type="1">

The applicant claims that coming from an Alevi Kurdish family that is part of the Tezcan Tribe that he will be persecuted in Turkey due to his Kurdish ethnicity and Alevi roots. He claims that because of his ethnic and religious background he will be imputed with the political opinion of being against the government in Turkey.[136]

[136]  Applicant’s submission dated 28 September 2021 at p.6 AAT file No 1818044 Doc ID 8893740 & Applicant’s submission dated 11 April 2018 at p.7, Dept File No [number] Doc ID: 4464831. 

In addition, the applicant claims that he while at university for a short period of time he was involved in junior politics and attended small political events.[137] He claimed that he supported the Kurdish cause but was not highly active because he feared the authorities and was worried for his family.[138] The applicant claimed that the Turkish government register people who hold antigovernment views.  His evidence was that he supported the DTP and the BDP by attending meetings and group discussions of both parties. The applicant did not provide any specific evidence or details in relation to such activities, including when and where he attended the meetings and group discussions, who attended the meetings and how many attended such meetings and discussions.  In addition, the applicant did not provide any independent evidence of the meetings and group discussions or his attendance as claimed.  

[137]  Applicants ‘Further submissions in support of application for Administrative Appeals Tribunal’ dated 22 December 2022; AAT file 1818044, Doc ID No:10584947; Applicant’s submissions date 28 September 2021 at p.6; AAT file No 1818044 Doc ID 8893740

[138]  ibid

Nevertheless, the Tribunal is prepared to accept that he did support DTP and BDP as claimed. However, on his own evidence his involvement in politics was only minimal, being at the junior level and for a short period of time. The applicant did not experience any harassment or harm from the authorities in Turkey. He was able to socialise without interference from the authorities including, on his own evidence, having a relationship with a Sunni female.  In addition, the applicant was able to access employment[139] in Turkey as an [Occupation 2], a [Occupation 3] and as a [Occupation 4].[140] Based on the applicant’s evidence, the Tribunal does not accept that the applicant had a political profile that brought him to the attention of the authorities. Although Turkey’s pro-Kurdish political activists have faced increasing discrimination in recent years,[141] the applicant’s evidence does not suggest that he would participate in pro-Kurdish or anti-government activism upon return to Turkey. The applicant had only a minor involvement in politics in Turkey and there is no evidence that he has continued to be politically active after leaving university or while he has been in Australia to the extent that he will be bought to the attention of the authorities.  Country information does not suggest that all Kurds or Alevi, or those who have had minimal involvement in politics, are imputed with an anti-government political opinion. As a result, the Tribunal does not accept the applicant’s evidence that he will be specifically denied access to protection from the authorities due to his imputed or actual political opinion. Based on the country information, the Tribunal finds that the applicant will not be denied access to protection in a discriminatory or systematic manner by reason of his imputed or actual political opinion due to his ethnicity and religion. As such, the Tribunal finds that there is no real chance he will be seriously harmed in the event he is returned to Turkey by reason of his actual or imputed political opinion.

Threats from the applicant’s family and tribe.

[139]  Protection visa application form dated 12 October 2015, Dept File: [number] Doc ID:4464823

[140]  ibid

[141] DFAT Report p. 29.

1. The applicant claims that by refusing to marry his cousin he has brought shame on his family and his cousins’ family. The applicant claims that he fell in love with a Sunni girl, [Ms A], who he had been dating for approximately five months. After telling his parents of his intention to marry [Ms A] his father became angry and arranged for him to marry his cousin which the applicant refused.  The applicant claims that his father is an elder and head of the Tezcan tribe in Ankara.

2. The applicant claims that his refusal to marry his cousin has brought shame and dishonour to his family and that of his cousin.  As such, the applicant claims that there is a real risk he will be seriously harmed as a victim of an honour killing by his family and his extended Kurdish family due to his failure to marry an Alevi Kurdish Cousin from his tribe as arranged. He claims that the Turkish authorities will not be able to provide him effective protection given the cultural norms and minority status of the applicant’s ethnic background and religion. 

3. An honour killing is a premeditated murder motivated by the desire to cleanse the dishonour that has been cast upon the perpetrator’s family because of actions (either real or perceived) of the victim.[142] Human Rights Watch[143] has described honour crimes as ‘acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonour upon the family.’ It has described it as ‘the most extreme form of domestic violence, a crime based in male privilege and prerogative and women’s subordinate status.’ [144]  However, while most honour killings victims worldwide are women about seven percent are men.[145]  Its reported[146] that in Turkey honour killings are not ‘exclusively committed against females, but they are almost exclusively committed to maintain a rigid, heterosexual, patriarchal gender order that [enforce] female subordination to and male compliance with the prevailing norms.’[147] In July 2008 Ahmet Yildiz was killed by his father for being a homosexual.[148] It is reported that, by defining honour killings in a gender-neutral way it’s possible to avoid making a distinction between male and female victims and focus its inquiry of the honour killing in the applicant’s country of origin and the credibility of the threat faced by the applicant.[149]    

   [142] City University of New Your Law Review Vol 17 issue 1 ‘Male Asylum Applicants Who Fear Becoming the Victims of Honor Killings: The Case for Gender Equality’ Winter 2013, by Caitlin Steinke http:/academicworks.cuny.edu/cgi/viewcontent.cgi?article=1347&context=clr   Amnesty International USA Culture of Discrimination: A Fact Sheet on ‘Honour’ Killings 1 (2012); Human Rights watch ‘Item 12 – integration of the Human rights of women and the gender perspective: Violence Against Women and ‘Honor’ Crimes 5 April 2001; ww.hrw.org/news/2001/04/05/item-12-integration-human-rights-women-and-gender-perspective-violence-against-women

   [144] City University of New Your Law Review Vol 17 issue 1 ‘Male Asylum Applicants Who Fear Becoming the Victims of Honor Killings: The Case for Gender Equality’ Winter 2013, by Caitlin Steinke

   [145] Middle East Forum ‘Worldwide trends in Honor Killings’ 2010 Phyllis Chester http:/ International Business Times ‘Honor killings: The Scourge of Turkey, 7 Oct 2011, Palash R Gosh ibid

   [148] Bianet, ‘Ahmet Yildiz Murder Case Started Fugitive Defendant: Yildiz’s Father’ City University of New Your Law Review Vol 17 issue 1 ‘Male Asylum Applicants Who Fear Becoming the Victims of Honor Killings: The Case for Gender Equality’ Winter 2013, by Caitlin Steinke at p.236 http:/academicworks.cuny.edu/cgi/viewcontent.cgi?article=1347&context=clr  

4. Those who carry out honour killings and support such crimes share a deeply held belief in the importance of maintaining family honour, which is viewed as a shared responsibility.[150] In this case the applicant’s evidence was that his father was a leader of the Tezcan tribe and a devout follower of the Alevi faith. However, the applicant’s evidence in relation to his father’s role as leader of the Tezcan tribe as claimed was confused, vague and lacking in detail. In addition to him being a leader of his tribe the applicant also claimed that his father had been a leader of a gang. However, he did not provide any details of his father’s involvement in the gang, including the name of the gang and his responsibilities within the group. In addition, he did not provide any details of his father’s role and responsibilities within his community as tribal leader. No independent evidence was provided to the Tribunal as to the applicant’s father’s status as a gang or tribal leader as claimed. Further, despite claiming that his father was a devout follower of the Alevi faith he did not provide any evidence of his father’s role and involvement in the faith, including his attendance at the cemevi and any duties he performed within the Alevi faith.  As such, while the Tribunal accepts that his father is of the Alevi faith it does not accept that he was leader of a gang or his tribe as claimed.

   [150] Op Cit at p.237

5. It is reported[151] that honour killings occur in circumstances where shame and tainted honour occurs within a family structure where the bonds of affection, love and obedience bind all participants to the murder.[152] They are the result of careful planning by a family council in which the youngest male is elected to perform the murder.[153] That is, the deliberate murder of a disobedient or shameful family member by a familial council for the purpose of absolving family honour.[154] Based on the applicant’s evidence there does not appear to be any coordinated effort to have him killed. Rather, on the applicant’s own evidence the threat comes from his father rather than any coordinated plan by the family. The applicant’s evidence was that his mother did not oppose his marriage to [Ms A] and only wanted to see him happy. She intervened to assist the applicant upon being attacked by his father. In addition, after his altercation with his father he fled to his brother’s house who provided him shelter. The Tribunal notes that in the Psychological Report from [psychologist] dated 28 September 2021 (‘the Psychological Report’) he ‘was missing and longing to see his older brother and nephew.’ In addition, it was the applicant’s evidence that his uncle in Australia had agreed that he had done the right thing by not marrying his cousin. Therefore, based on the applicant’s own evidence the Tribunal finds that there was no coordinated plan by the applicant’s family to have him killed.   

   [151] Emory Law. ‘Between Saviours and Savages: The effect of Turkeys revised penal code on the transformation of honor killings into honor suicides and why community discourse is necessary for honor crime education’ 2014 Bethany A Corbin; http:/scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1130&context=eilr

   [152] ibid

   [153] ibid

   [154] ibid

6. Finally, the applicant has never had any contact with his cousin to whom he was to marry. There is no evidence of any threat from his father’s cousin. The agreement for him to marry as claimed appears to have been made by his father in a hurry and without any announcement to the community. There was no announcement of their marriage, and no engagement took place. The country information[155] confirms that Turkish tradition dictates that the groom’s family will search for a suitable wife, starting with their family and friendship circles.  Once a suitable bride is selected the bride and her family decide if they accept. It is reported[156] that today only in very rural parts of Turkey does the tradition still prevail and that most couples meet in similar circumstances as in western countries. The applicant’s evidence was that he never had any contact with his father’s cousin or his daughter. No engagement took place and no formal announcement of their engagement occurred. In addition, there was no evidence of the applicant’s cousin having accepted him as a husband.

   [155] Property Turkey, ‘Love and marriage in Turkey 29 March 2017 by Cameron Deggin

   [156] ibid

7. Finally, based on the applicant’s own evidence the Tribunal does not accept that he was in a relationship with [Ms A] as claimed.  The applicant’s evidence of his relationship with [Ms A] was vague and lacking in detail. He claimed that it was difficult in Turkey to develop a relationship but said that they would see each other regularly outside working hours and after a certain time they discussed marriage. The applicant did not provide any detail as to where they would meet, for how long and how regularly. In addition, his evidence in relation to what they would do together when they did meet was vague and lacking in any detail. The applicant did not give any evidence of him socialising with [Ms A] with friends or family. Despite claiming that he they had discussed marriage his evidence was that neither of their families were aware they were in a relationship.

8. In addition, the applicant’s evidence was that he did not contact [Ms A] after the incident or before his departure for Australia. In circumstances where the applicant claims to have been in love with [Ms A] and wanted to marry her and in which the incident with his father was a stressful and emotional event, the Tribunal finds it difficult to accept that he did not contact [Ms A] after the incident or before his departure for Australia. Rather, he merely left the country without contacting [Ms A]. In addition, the applicant’s evidence was that he has not contacted [Ms A] since his arrival in Australia and has no knowledge of what has become of her.  In circumstances where it was the applicant’s evidence that he declared his love for [Ms A] and explained to his father and mother that it was wanted to marry her, the Tribunal would have expected him to have made some contact with her prior to his departure for Australia or even upon his arrival in Australia. Instead, his evidence was that he left the country without contacting her and does not know what happened to her. The Tribunal notes that the applicant is now in a new relationship in Australia with a Turkish woman who currently resides in the country on a student visa.

3.22Alevis 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.

3.23Although 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.

3.24DFAT 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.

Personal Status Laws[171]

[171] DFAT Report at p.25

3.27The Civil Code (1926) is the primary source of law in relation to personal status matters, including marriage, divorce and the welfare of children. Its provisions apply to all Turkish citizens regardless of religion. The Civil Code and related regulations govern all marriages, and the law recognises only official (civil) marriages. Polygamy is a criminal offence punishable by up to two years’ imprisonment. Turkey has no civil partnership for either heterosexual or same-sex couples. Article 132 of the Civil Code enforces a 300 day waiting period after the termination date of the previous marriage before formerly married women can re marry. DFAT understands this Article, which does not apply to men, is intended to ensure women do not re marry while pregnant from the previous marriage, thus protecting the new husband from having to raise a child who is not his own. The legal marriage age is 18 for both sexes, although a 17 year old may be granted permission to marry with parental or guardian consent, and a 16 year old with parental or guardian consent and a court decision. Underage marriage for girls is common. According to UNICEF data, one per cent of girls are married by age 15, and 15 per cent are married by age 18. In 2016 and then in 2020 the Turkish Government proposed legislation to allow men who sexually abused children the opportunity to have convictions quashed if they married their victims. Despite passing the bill on the first reading, the legislation was pulled from Parliament after mass public outrage. In 2018 the Diyanet suggested girls could marry under Islamic law from age 9 or when they reached puberty, although they have not progressed this position by attempting to have it legislated. NGOs report early marriage is seen in conservative rural areas as a means to restore a girl’s ‘honour’ after she has had sex, including through rape.

3.28In November 2017, parliament passed a law allowing Muslim clerics to conduct civil marriages. Previously, only state officers in branches of the family affairs directorate had been empowered to do so. While supporters of the law argued the change simply made marriage more convenient for religiously observant citizens, opponents contended the change was part of a broader campaign to impose conservative Islamic values on a secular society.

3.29Articles 161 to 166 of Law 4721 specify the grounds for divorce. General grounds for divorce include the breakdown of marriage, divorce based on separation and consensual divorce. Special grounds for divorce are based on concrete facts and include mental illness, adultery, cruelty, desertion (for a period exceeding six months), criminal conviction and addiction.

3.30The custody rights of a parent begin with the birth of the child and continue until the child is 18 years old. If the parents are married, both parents have custody of the child. If the parents are not married, Article 337 of the Civil Code automatically gives the mother custody of the child from birth. In cases of divorce, the judge will grant custody to one of the parents and will base the decision on the best interests of the child even if the parents have a notarial agreement. Turkish law does not permit joint custody. Courts typically grant the mother custody of an infant child, and only take into consideration the wishes of the child from age eight. Judges determine child support according to the financial situations of the parents, and the child’s age and needs. No standard formula applies. Child maintenance automatically ceases when the child turns 18.

3.31The main laws concerning inheritance are the Civil Code, the Law on Code of International Private and Procedure Law (2007), and the Code of Civil Procedure (1927; frequently amended). The Civil Court of Peace and Court of First Instance are the principal courts for inheritance issues. The length of time taken to complete proceedings is unpredictable and depends on the complexity of the case and the court’s caseload. Turkish law imposes restrictions on the disposal of estates for the benefit of relatives, and it is difficult to ban someone from receiving an inheritance. Turkey has a modest inheritance tax of between one and 30 per cent depending on the asset type and total size of the estate.

Blasphemy/ Defamation of Religion[172]

[172] DFAT Report at p.26

3.32Article 216(3) of the Criminal Code states any person who openly disrespects the religious belief of a group can be punished with imprisonment from six months to one year if such act causes potential risk for public peace. After a spate of prosecutions between 2014-16 – including journalists who reprinted French Charlie Hebdo cartoons of the Prophet Mohammad in 2016 – recent years have seen a significant reduction in the number of complaints, prosecutions and convictions. In 2020, authorities attempted to prosecute a CHP party official under Article 216(3) for sharing a social media post about the Ciao Bella affair where hackers tapped into mosque speaker systems in Izmir and played Italian protest music. Prosecutors later changed the basis of their allegation to a broader ‘provoking public hatred’ charge. Media speculated this was because Article 216(3) carried a comparatively light penalty and did not allow for the official to be remanded in custody. Beyond the isolated Ciao Bella case, DFAT is not aware of any evidence to suggest authorities are using blasphemy charges in a political manner.

POLITICAL OPINION (ACTUAL OR IMPUTED)[173]

[173] DFAT Report at p. 27.

3.33The Constitution contains numerous articles guaranteeing the freedoms of political opinion assembly and expression, although most of these articles contain clauses to allow restrictions of these rights by law on national security grounds. Turkey remains a society with a wide range of political views and ideologies reflected and expressed in its parliament, at other levels of government and in the community. Restrictions on the ability of Turkish citizens to express dissent to the government, individually or collectively, have increased significantly, particularly under the state of emergency (see State of Emergency), and subsequent formalisation of many of its provisions. In its latest Freedom in the World report, published in 2020, Freedom House ranked Turkey ‘Not Free’.

Kurdish Political Activists[174]

[174] DFAT Report at p. 29.

3.42 Political parties representing Kurdish interests have traditionally faced strong opposition from the Turkish state, and the government has declared many pro-Kurdish parties illegal on the grounds they have provided support for the PKK. The leading pro-Kurdish parties at present are the HDP and its regional affiliate party, the Democratic Regions Party (DBP). The HDP competed in the June 2018 presidential and parliamentary elections, with the HDP winning 67 seats despite significant efforts by the state to supress their vote, and in the 2019 municipal elections, winning 65 municipalities, of which only 18 currently remain in the party’s control (see Political System). Since the breakdown of the government-PKK ceasefire in July 2015 and subsequent resumption of conflict in the southeast, however, authorities have further restricted the ability of the two parties to conduct political activities.

3.43In the previous parliamentary term, the parliament amended its by-laws to prohibit the use of the word Kurdistan, and lifted immunity for MPs leading to 11 HDP MPs having their seats revoked and nine subsequently being imprisoned. Many remain in prison on a range of charges from production of terrorism propaganda to verbally assaulting a police officer. Former HDP leader Selahattin Demirtas has been in prison since November 2016, despite a directive from the ECHR to release him from pre-trial detention, and was unable to campaign freely during the 2018 presidential election. He faces dozens of charges which could result in 142 years’ imprisonment.

3.44At the 2019 municipal elections the Supreme Election Council replaced victorious HDP candidates with second-placed governing-party candidates after disqualifying them on terrorism-related grounds, despite previously approving them during the nomination process. In 2019, RTUK, the Radio and Television Supreme Council, sanctioned a television station for broadcasting a speech in parliament by HDP’s co-chair, and the BTK added HDP Twitter accounts to lists of blocked websites. The HDP estimate between July 2016 and the end of 2019, some 4,920 MPs, party officials and members were imprisoned on a range of charges related to terrorism and political speech.

3.45DFAT assesses pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for high-level politicians and low-level activists, and applies nationwide.

3.81NGOs reported between one and 31 ‘honour killings’ in Turkey in 2019. Pro-government media report honour killings have ‘plagued’ Turkey for decades. It is unclear if victims were Turkish citizens or if honour killings took place in refugee populations in the country. Honour killings in Turkey are defined as a murder committed or ordered to punish a family member who is believed to have damaged the family’s reputation. Actions considered damaging can include extramarital sex, refusal of an arranged marriage, choosing one’s own spouse without family approval, becoming a victim of rape, same-sex sexual acts (see Sexual Orientation and Gender Identity), or liberal behaviour and dress. Individuals convicted of honour killings can be sentenced to life imprisonment, but NGOs report courts can reduce actual sentences due to mitigating factors, which include anger or passion.[175]

[175] DFAT Report p. 36.

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

Legal Concepts

• Judicial Review

• Procedural Fairness

• Statutory Construction