1827549 (Refugee)

1827549 (Refugee) [2023] AATA 1973 (24 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Attila Mete (MARN: 0427776)
CASE NUMBER:  1827549
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Joseph Lindsay
DATE:24 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 24 March 2023 at 10:20am

CATCHWORDS
REFUGEE – protection visa – Turkey – particular social group – homosexual male – political opinion – anti-government protester – detained after political protest – threatened and assaulted by family members – fear of harm from Turkish authorities – efforts by Turkish officials to deter LGBT rights activism – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Turkey (Türkiye), applied for the visa on 1 September 2015. The applicant appeared before the Tribunal on 15 September 2022 to give evidence and present arguments. [Mr A] was also a witness at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
In his written protection application the applicant claimed, in summary, he fears returning to Turkey because he is homosexual and also on the basis of his anti-government sentiments.
In his statutory declaration dated 26 August 2015, he stated that he was initially married but that he separated from his wife in 2013. He stated that he has two sons and a daughter. He stated:
I decided that in order for my marriage to be successful, I needed to move to another area away. As such, my wife and I moved and we started a family. I had hoped that if I tried hard to concentrate on my wife and children I would stop being homosexual. It was extremely difficult for me to supress my true identity. I felt was not being true to myself. As such, during my marriage, I had causal relations with other men. Despite my best endeavours to live happily with my family, I became very depressed and my psychological health suffered poorly.
In November 2013, I felt I could not continue with my marriage. I believed that it was not fair for my wife or for me to continue living a lie. I separated from my wife. My wife's family became extremely angry at me. Her brothers believed I had dishonour their family and threatened to kill me. I decided I had no option except to move away. I relocated to [location]. I did not see my family after this. I did however call my children to check on their well-being.
After separating from my wife, I continued to rely online sites to find partners. I had a number of casual encounters. I took precautions to avoid detection from members of my community of the authorities. In April 2014, I entered a relationship with [name]. While we could not have an open relationship, we did spend a lot of time together. On a few occasions, when we were out on the streets, we were called derogatory names. Prior to departing Turkey, we were leaving an area where Gay Bars are located and we were harassed and ridiculed. We did not respond to these people and fled the area promptly. At this time, I realised I could not continue to deal with the prejudicial treatment and decided to leave Turkey.
Further, I had issues in Turkey due to my anti-government sentiments. While serving in the military, I came to realise the Army were committing many atrocities against minorities, for example the Kurds. This made me very wary of the actions of the Turkish Government. In addition, the fact homosexuals were ostracised by the Government made me not support them. For approximately the last ten years, I have supported the Carsi Group which is a leftist group, who initially started as a supporter groups for the Besiktas Football Club. The Group provides social and political commentary in Turkey. Due to my support of the group, I attended countless protests against the Government.
In May 2013, I attended the Gazi Protests. The Authorities stormed the protest with tear gas and plastic bullets. I was beaten by the Authorities and taken away in a car. I was then detained for a period of two days. While detained I was interrogated, beaten, threatened and insulted. I refused to sign admission papers that I had been committing terrorist activities. I was eventually released after signing a promise that I would not make a complaint about the mistreatment I suffered while detained. They threatened that if I did not sign such undertaken, I would be killed. I felt I had no option except to sign it. After these protests, it was highly evident to me that change is not imminent in Turkey and the situation for minorities is not going to improve.
In the hearing, the Tribunal first spoke to the applicant’s witness, [Mr A]. In the discussion, the Tribunal referred to the statutory declaration by [Mr A] dated 8 September 2022:
1. I first started speaking to [the applicant] in early 2018 at [Venue 1]. It was a [LGBT venue]. I had seen him come to our venue in 2017 but 2018 was when we first spoke.
2. After first speaking, [the applicant] came in two more times before we went to my residence and had sex for the first time.
3. From that point on, we continued to have intermittent sex but also started developing a friendship. Although we were not in an exclusive relationship, between 2018 and July 2020 we would socialise together regularly and would also have sex regularly.
4. In July 2020 [the applicant] and I moved in together. It corresponded to a time when my relationship with my business partner and long term [partner] had come to an end. [The applicant] was a great emotional support to me during such a difficult time.
5. [The applicant] also spent Christmas 2020 with my [brother], his [wife] and my nephews.
6. [The applicant] moved to his own house in June 2021. During that time, I was still dealing with the break up of the partnership and relationship. This meant that I also needed to move out of the house as the residence was above the business premises.
7. In late 2021, I re-opened the [business]. Shortly after this, [the applicant] and I rekindled our sexual relationship.
8. We continue to see each other on a regular basis. We have frequented many gay bars, pride days, LGBT events and venues together over many years.
9. I wish to confirm that [the applicant] is gay.
[Mr A] confirmed to the Tribunal that the information in his statutory declaration is correct. [Mr A] confirmed that he is gay and that the applicant is also gay. [Mr A] confirmed that he and the applicant developed a relationship. However, [Mr A] said he had recently split from his long-term partner, who is also his business partner. In any event, [Mr A] maintained that he had a casual relationship with the applicant over the last few years; but since the split from his long-term partner, he and the applicant had become closer. [Mr A] said he is not in an interdependent financial relationship with the applicant, but they are nonetheless very close. [Mr A] said he was aware the applicant has come to Australia because of difficulties he faced in Turkey. He said the applicant had spoken to him about his separation from his wife and children in Turkey. [Mr A] was able to speak knowledgeably about the applicant’s children, including their names, ages, and interests. [Mr A] was able to speak knowledgeably about the applicant’s circumstances when he was young, including violence perpetrated by the father in the home environment. [Mr A] indicated that the applicant was slowly becoming more open about his sexuality, including in public. [Mr A] was aware that the applicant was involved in some “politics” when he was in Turkey that got him into trouble with the police. [Mr A] demonstrated in the hearing that he was able to verbally communicate with the applicant, despite some language difficulties. [Mr A] said he was appearing at the hearing in order to support the applicant. [Mr A] was adamant that any suggestion that the applicant was not gay was false.
The Tribunal then spoke with the applicant. He said he was born in Istanbul. He indicated that he came to the conclusion he was gay at a fairly early age. He said he was 13 when he realised he was gay. He said that there was an occasion when his mother caught him and his friend in a “close instance.” He said that after this, there was a lot of violence and threats. He said his father was violent to both his mother and himself. He said he begged his mother not to tell his father. He said he gave his word to his mother he would not do this anymore. He said his mother’s thoughts were to get the applicant married off, and so he ended up marrying his first cousin when he was under 18 years old. He said he should not have been forced to marry when he was so young. He said this way everything was kept within the family so no one would hear about these things. He indicated that marrying a woman does not “cure” a homosexual man of being gay, despite what his mother thought. He said he is still “technically” married to his wife; and while they still speak, they have not spoken in some time, mainly because he has been subjected to threats by members of her family. He said he had previously been assaulted by his wife’s brothers. He then indicated that he also became involved in political causes. He said he was concerned about government policies and religious pressure about being gay. However, he said there were all kinds of groups who were also not happy with the Turkish government. He spoke of an event he participated in when he was in Turkey. He said the police used capsicum spray and plastic bullets on the protesters. He said he and about 20 others were put into police trucks and taken to the police station, where they were put into cells. He said he and the others were extensively questioned by the police. He said the police spat on him, saying comments like “why are you doing this to the government.” He said he told them they were just wanting their rights. He said he was detained for about two days. He said the police did not know he was gay; but he knew that if they found out, it would be bad for him because he was already aware that police regularly abuse and mistreat gay men in Turkey. He said that when he was released, he stayed away from the group he had been detained with, but he had to go every day to the police station to report in and give his signature. He said every time he went to the police station he was questioned. He said that out of his group, about 4-5 people were sentenced to lengthy prison sentences for their involvement in the protest, which caused great concern and apprehension for him. He said that after about 2 months, the police did not call him in, however he said he felt like he was being followed.
The Tribunal put to the applicant that he was not in any leadership position, and he was not an organiser of the protest. The Tribunal put to the applicant that he was nothing more than a participant in the protest. The Tribunal asked the applicant why he would be of interest to the Turkish police. In response, the applicant said the situation made him tense and uncomfortable. When asked, if he was so concerned about the situation in Turkey, why he waited so long to come to Australia, he responded that he felt stuck, and it took him a while to figure out what to do. When the Tribunal put to the applicant that his circumstances didn’t stop him from going to [Country 1], in response he confirmed he went to [Country 1]. When asked what he was doing in [Country 1], the applicant said he would meet up with his gay friends and have “gay nights.” When asked if this was because [Country 1] was an open and friendly country for LGBTI people, the applicant said the [Country 1 people] are still conservative but not as bad as the Turks. He said that he would also do shopping, drink alcohol, and go out to places in [Country 1]. He said he stopped going to [Country 1] due to “some uneasiness.” He said he used to go to [City 1, Country 1], but in [City 2, Country 1] there was some issues so he stopped going. He said the delegate asked him why he did not stay in [Country 1], but he indicated that [Country 1] even then was having security problems. He said he is not a citizen of [Country 1] or any other country other than Turkey. He said he has previously travelled to [three other countries] for work and pleasure. When asked why he did not apply for protection in any of the other countries he visited, the applicant said those thoughts did cross his mind, but he was never confident. However, by 2013, he felt confident to leave Turkey. He indicated he was not confident of applying for protection in other countries that are not as protective of gay people. He said he is a [occupation] by profession.
When asked what his primary fear if he went back to Turkey in the foreseeable future, the applicant said he was fearful of his life because he had previously been threatened and assaulted by his wife’s family members. He said that in the last seven years in Australia, he had no fears. He said if he was to go back to Turkey, it would not be possible to live openly and freely as he does in Australia. He confirmed that he feared harm from his wife’s family members, and he feared harm from the Turkish authorities.
The Tribunal put to the applicant that his travel history indicated that he was able to leave and return to Turkey several times without a problem from the Turkish authorities. In response, he said he was not arrested, and he left Turkey using the airports.
The Tribunal spoke to the applicant about the DFAT Country Information Report for Turkey dated 10 September 2020, including the information in the report about treatment of LGBTI people in Turkey.
Analysis and findings
The Tribunal has carefully considered the claims made by the applicant and the information available to the Tribunal. The Tribunal has also considered written submissions provided to the Tribunal, including submissions dated 26 March 2018 and 9 September 2022. The submissions are comprehensive and provide further supporting evidence. To that end, the Tribunal makes the following findings.
The Tribunal accepts that the applicant is gay. The Tribunal accepts that in 2013 the applicant was involved in anti-government protest action in Turkey, for which he was detained and abused by the Turkish authorities. However, the Tribunal finds that the applicant was not in any leadership position, he was not an organiser of the protest, and he was only a participant in the protest. The Tribunal finds that the applicant was able to leave and return to Turkey without incident from the Turkish authorities. However, the Tribunal accepts that the applicant concealed his sexuality whilst in Turkey.
As indicated above, the Tribunal has considered the DFAT Country Information Report for Turkey dated 10 September 2020, including in respect to sexual orientation and gender identity as follows:
Sexual Orientation and Gender Identity
3.83 No legislation in Turkey prohibits sexual activity between people of the same sex: the Ottoman Empire decriminalised sodomy in 1858. The legal age of consent for all sexual acts is 18 years, which includes sexual acts between people of the same sex. Transgender individuals can legally change gender, although a court must grant permission based on a medical report. Legal gender reassignment is conditional upon the individual remaining unmarried and undergoing surgery and sterilisation. Legislation does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity in social institutions, government offices or corporations. The law does not guarantee LGBTI individuals certain rights enjoyed by others, including but not limited to marriage and associated partnership benefits such as retirement, inheritance, insurance, social security and access to the corpse in case of death.
3.84 Human rights groups report police have used legal provisions relating to ‘offences against public morality’, ‘protection of the family’ and ‘unnatural sexual behaviour’ to justify harassment of lesbian, gay, bisexual, transgender and/or intersex (LGBTI) individuals. Police harassment against transgender sex workers is reportedly common, often to extract bribes. No legislation prohibits hate crimes against LGBTI individuals. Human rights groups claim this leaves LGBTI individuals vulnerable to street crime and general violence – one NGO that tracks these cases reported 62 hate crimes in 2018, which it claims is consistent with previous years. Article 29 of the Criminal Code allows for the mitigation of sentences, including assault or murder, if the defendant has been provoked by an ‘unjust act’. Human rights groups claim judges have used Article 29 to mitigate sentences in cases of murder of LGBTI individuals.
3.85 A strong societal taboo exists against LGBTI issues and individuals. However, recent annual polling by Kadir Has University shows an increase in support for equal rights for LGBTI individuals. In 2020, 45 per cent of respondents thought LGBTI individuals should have equal rights, up from 36 per cent in 2019 and 33 per cent in 2016. In 2018, 55.3 per cent of respondents said they would not want an LGBTI neighbour, in 2019 this dropped to 46.5 per cent.
3.86 Pro-government media and high-level officials, including President Erdogan, frequently make derogatory comments and statements about homosexuality. During the COVID-19 pandemic, the head of the Diyanet said at a Ramadan sermon that Islam condemned homosexuality because it brought disease, and that thousands of people were exposed to HIV each year. The comments were supported by President Erdogan and several cabinet ministers.
3.87 Human rights observers report LGBTI individuals often feel the need to hide their sexual orientation or gender identity at work, and those who do not (or cannot) may face negative repercussions. High unemployment rates in the economy as a whole make LGBTI individuals reluctant to complain about discrimination, for fear of losing their livelihoods. Turkish employment law allows the dismissal of a government employee who is found ‘to act in a shameful and embarrassing way unfit for the position of a civil servant’, while other statutes criminalise the undefined practice of ‘unchastity’. Human rights observers report employers have used these provisions to discriminate against LGBTI individuals. Social stigma against HIV/AIDS leads many LGBTI individuals to avoid testing for fear the results may be used against them.
3.88 The societal situation for LGBTI individuals varies considerably according to location and socio-economic level. Many LGBTI individuals live openly and safely in wealthier neighbourhoods in major cities, particularly Istanbul. However, those at lower socio-economic levels residing in poorer and rural areas, particularly in Anatolia, are less likely to be able to do so because of the more conservative values that prevail in these areas. Both gay men and lesbians face considerable social pressure to enter into a heterosexual marriage and produce children.
3.89 There are a number of prominent NGOs in Turkey that work to promote the rights and interests of LGBTI individuals, including in Istanbul, Ankara, Izmir, Adana and other major cities, and unofficial groups in smaller cities and university campuses. Many, however, report difficulty finding office space due to discrimination from landlords; official harassment in the form of frequent and onerous audits under threat of large fines; and the refusal of university authorities to permit groups to organise on campus. Like other civil society organisations, LGBTI groups faced increased operating restrictions under the state of emergency, and scaled back their advocacy activities as a result. A ban in place since November 2017 by the governor of Ankara prohibiting LGBTI public events such as cinema, theatre performances, panels, interviews and exhibitions was declared illegal in April 2020 by an Ankara Administrative Court. However, in practice the ban in Ankara and many other provinces persists as officials refuse permission on a case-by-case basis, citing security concerns. In the months following the overturning of the ban, police used water cannons, rubber bullets and tear gas to break up Pride Month gatherings. Authorities have banned the Istanbul Pride march on public order and security grounds annually since 2015. The march had previously run for more than a decade and, with tens of thousands of participants, was one of the largest LGBTI events in the Muslim world.
3.90 LGBTI prisoners and detainees are vulnerable to physical violence, harassment and denial of medical services (see Conditions in Detention). LGBTI prisoners often seek medical clearance to move to isolated containment cells on grounds of mental or physical illness. Other LGBTI prisoners have meanwhile complained about the use of solitary confinement as inhumane treatment.
3.91 DFAT assesses LGBTI individuals (and those perceived to be LGBTI) face a moderate risk of societal discrimination, which may include violence. This risk may vary according to geographic location, socio-economic level and personal and family circumstance. Traditional views about sexuality and gender that continue to prevail throughout Turkey may restrict LGBTI individuals’ participation in the workforce and broader community.

The Tribunal has noted with great concern some of the more recent reporting from Turkey in respect to treatment of LGBTI people.
The Tribunal has considered a report from Human Rights Watch from 2022[1] as follows:
[1] Human Rights Watch, 30 June 2022, Turkey: Mass Arrests, Anti-LGBT Violence at Pride, accessed 23 March 2023.
(Istanbul) – Turkish police attacked and arrested hundreds of people at the Istanbul Pride March on June 26, 2022, in a sweeping display of violence and discrimination against lesbian, gay, bisexual, and transgender (LGBT) people, Human Rights Watch said today. The authorities also arrested journalists reporting on the event.
The number of arrests was three times the total during the previous seven Istanbul Pride marches combined. Thirty-four of those arrested were youth under 18, according to Kaos GL, a Turkish LGBT rights group. Local officials had banned the march, citing security concerns and the need to uphold public order. Istanbul Pride, which at its peak in 2014 hosted upwards of 100,000 participants, has been banned since 2015. Despite this ban and a seven-year history of anti-LGBT police violence, LGBT activists took to the streets in protest and to commemorate the 30th Istanbul Pride.
“The Turkish government’s crackdown on Istanbul Pride is the latest in a brutal campaign against LGBT rights activism and freedom of expression,” said Kyle Knight, senior LGBT rights researcher at Human Rights Watch. “Turkish authorities have a responsibility to protect LGBT people and journalists alike, but instead the authorities have acted with aggression and cruelty.”
Before the Pride march, local officials shut down metro stations, ejected people from cafes, and preemptively arrested 52 people just before the parade started. As it began, metal barriers and lines of police in riot gear cordoned off the streets. The journalists’ union, DISK Basin-Is, said that the police beat “many” participants in the march. Police also attempted to prohibit journalists from photographing or recording the event – including by detaining a photographer from Agence France-Presse.
Various human rights organizations reported on Twitter that activists were held in vehicles without air-conditioning for hours and were denied access to food and water. Additionally, Kaos GL reported that lawyers attempting to free those arrested were met with police aggression, prolonging victims’ detention. Some of those arrested were kept in detention overnight, though a robust network of lawyers worked with activists to ensure that all detainees were released within a day.
Earlier in June, at an event celebrating the start of Pride Month, police detained members of two LGBT groups, Istanbul LGBTİ+ Onur Haftası, and Trans+ Korteji, in the Kadıköy district of Istanbul. Trans+ Korteji tweeted that officers at the Vatan Police Station physically harmed the activists, and shared photographs of their bruised wrists and legs.
Similar crackdowns at Pride events have occurred across Turkey this June. Police shut down a film screening that was part of the town of Datça’s inaugural Pride week and physically intervened with those who attempted to make a statement to the media. A dozen people were detained at Izmir’s 10th annual Pride march. In Ankara, police used excessive force and fired pepper balls to break up a student-organized Pride march hosted by a local university.
Previously, the Ankara governor had banned all LGBT events and public LGBT-related discussions in the province from 2017 to 2019. A court lifted the ban in April 2019, emphasizing that authorities have a duty to take security measures to protect peaceful assemblies and events – even if there are concerns that such activities may provoke a reaction – rather than simply to ban them. In Istanbul, the prosecutor filed a lawsuit against 19 protesters who joined a Pride march in 2021; this criminal case is still pending.
The crackdowns at this month’s Pride events follow a series of efforts by Turkish officials to quelch LGBT rights activism.
Turkish authorities are pursuing two lawsuits against the Association for Supporting Tarlabaşı Community Center (TTM), an organization that serves women and children, after they organized an event to address issues related to LGBTI+ children in June 2021. Following this event, conservative media outlets opened a smear campaign against TTM, claiming it was perverse and corrupting children.
Subsequently, the Interior Ministry began auditing TTM, which prompted the authorities to file the two separate lawsuits against the organization, seeking to dissolve it. The Istanbul Chief Public Prosecutor’s Office is pursuing the cases on the basis that TTM has become “illegal and immoral.”
In March, at Women’s Day celebrations across the country, participants reported that police prevented people from bringing rainbow-colored objects, LGBT flags, or LGBT-supportive banners to demonstrations and attempted to stop trans women from joining assemblies. At a daytime assembly, police detained five trans women along with four other women who tried to stop the arrests. The same day, Fahrettin Altun, President Recep Tayyip Erdoğan’s communications director, made an anti-LGBT speech, saying that “Families and children [are] targeted through … tolerance for homosexuality propaganda” and calling homosexuality “ugliness.”
In February, an appointed rector closed down a prestigious university’s LGBT club after weeks of protests against the action, and government officials called students who were arrested for an anonymous artwork with LGBT flags “perverts.”
In 2020, the head of Turkey’s Religious Affairs Directorate gave an anti-LGBT sermon about the Covid-19 pandemic. For the last two years, university students have been prosecuted for participating in a campus Pride march in 2019.
“While LGBT rights activists have demonstrated incredible courage and tenacity in the face of government brutality, they should not have to risk their well-being to exercise their fundamental rights,” Knight said. “The government should defend the right to freedom of expression, including by immediately ceasing all violence and discrimination against LGBT people and groups.”
The Tribunal has also considered a report from Voice of America from 2022[2] as follows:
[2] VOA, 23 September 2022, Turkey's Anti-LGBTQ Display Reflects Nation's Political Shift, accessed 23 March 2023.
The 25-yearold translator by day and trans drag performer by night felt overwhelming panic and anxiety when several thousand demonstrators gathered and marched Sunday in Turkey to demand a ban on what they consider gay propaganda and to outlaw LGBTQ organizations.
The Big Family Gathering march in the conservative heart of Istanbul attracted parents with children, nationalists, hard-line Islamists and conspiracy theorists. Turkey's media watchdog gave the event the government's blessing by including a promotional video that called LGBTQ people a "virus" in its list of public service announcements for broadcasters.
"We need to make all our defense against this LGBT. We need to get rid of it," said construction worker Mehmet Yalcin, 21, who attended the event wearing a black headband printed with Islam's testimony of faith. "We are sick of and truly uncomfortable that our children are being encouraged and pulled to this.
Seeing images from the gathering terrified Willie Ray, the drag performer who identifies as nonbinary, and Willie Ray's mother, who was in tears after talking to her child. The fear wasn't misplaced. The Europe branch of the International Lesbian, Gay, Bisexual, Trans and Intersex Association ranked Turkey second to last, ahead of only Azerbaijan, in its most recent 49-country legal equality index, saying LGBTQ people endured "countless hate crimes."
"I feel like I can be publicly lynched," Willie Ray said, describing the daily sense of dread that comes with living in Istanbul. The performer recalls leaving a nightclub still in makeup on New Year's Eve and hurrying to get to a taxi as strangers on the street called out slurs and "tried to hunt me, basically."
Sunday's march was the biggest anti-LGBTQ demonstration of its kind in Turkey, where civil rights for a community more commonly referred to here as LGBTI+ — lesbian, gay, bisexual, transgender, intersex and other gender identities and sexual orientations — have been under assault in the years since an estimated 100,000 people celebrated Pride in Istanbul in 2014.
In a visible sign of the shift, the anti-LGBTQ march went ahead without any police interference. Conversely, LGBTQ groups have had their freedom to assemble severely curtailed since 2015, with officials citing both security and morality grounds.
Police used tear gas and water cannons to disperse the Pride march planned for that year. Government officials have since banned the event. Activists have tried to gather anyway, and more than 370 people were detained in Istanbul in June.
President Recep Tayyip Erdogan's views also have grown more stridently anti-LGBTQ over time. Before the 2002 election that brought the Justice and Development Party (AKP) he co-founded to power, a younger Erdogan said at a televised campaign event that he found mistreatment of gay people inhumane and legal protections for them in Turkey a "must."
"And now, 20 years into this, you have an entirely different president that seems to be mobilizing based on these dehumanizing, criminal approaches to the LGBTQ movement itself," said Mine Eder, a political science professor at Bogazici University in Istanbul.
Interior Minister Suleyman Soylu has called LGBTQ people "perverts." In 2020, Erdogan defended the head of religious affairs after he claimed homosexuality "brings disease and causes the generation to decay." While championing his long-held belief that the identities of women are rooted in motherhood and family, the Turkish leader last year urged people to dismiss what "lesbians schmesbians" say.
Turkey also withdrew from a European treaty protecting women against violence, after lobbying from conservative groups that claimed the treaty promoted homosexuality.
The country could become more unwelcoming for the LGBTQ community. The Unity in Ideas and Struggle Platform, the organizer of Sunday's event, said it plans to push for a law that would ban the alleged LGBTQ "propaganda" that the group maintains is pervasive on Netflix and social media, as well as in arts and sports.
The platform's website states it also favors a ban on LGBTQ organizations.
"We are a Muslim country and we say no to this. Our statesmen and the other parties should all support this," said Betul Colak, who attended Sunday's gathering wearing a scarf with the Turkish flag.
Haunted by "the feeling that you can be attacked anytime," Willie Ray thinks it would be a "total catastrophe" if a ban on the LGBTQ organizations that provide visibility, psychological support and safe spaces were enacted.
Eder, the professor, said it would be "simply illegal" to close down LGBTQ civil society based on ideological, Islamic and conservative norms — even if Turkey's norms have indeed shifted to "using violent language, violent strategies and legalizing them."
The Social Policy, Gender Identity and Sexual Orientation Studies Association, a nongovernmental LGBTQ advocacy and outreach organization in Istanbul commonly known as SPoD, is among the LGBTQ groups that stopped posting their addresses online after receiving threatening calls.
"It's easy for a maniac to try and hurt us after all the hate speech from state officials," said SPoD lobbyist Ogulcan Yediveren, 27. "But these security concerns, this atmosphere of fear, doesn't stop us from work and instead reminds us every time how much we need to work."
Gay activist Umut Rojda Yildirim, who works as SPoD's lawyer, thinks the anti-LGBTQ sentiments on view Sunday aren't dominant across Turkish society, but that the minority expressing them seem "louder when they have government funds, when they're supported by the government watchdog."
"You can just shut down an office, but I'm not going to disappear. My other colleagues aren't going to disappear. We'll be here no matter what," Yildirim said.
In view of the available country information, including from the submissions, the Tribunal is satisfied that the applicant would face a real chance of serious harm based on his status as a gay man, and therefore his membership of a particular social group, namely as a homosexual male from Turkey, should he return to Turkey in the foreseeable future.
The Tribunal has also considered whether the applicant’s previous involvement in anti-government protests in Turkey would also serve to increase his risk of harm should he return to Turkey in the foreseeable future. In this respect, the DFAT report relevantly states:
Critics of the Government: Protesters
3.46 Article 34 of the Constitution guarantees the right to hold unarmed and peaceful meetings and demonstration marches without prior permission, but provides for this right to be restricted by law on the grounds of national security and public order. Under the state of emergency, and the subsequent legislative normalisation, this freedom became severely restricted, particularly when exercised by groups protesting against the government. According to Articles 9 and 11 of the State of Emergency Law (2016), measures could be taken during the state of emergency to prohibit, postpone or impose permission obligation for assemblies and demonstrations in closed and open areas, as well as to determine, publicise, supervise, and disperse areas of assemblies and demonstrations. Even before the state of emergency, protestors faced legislative restrictions: the Law on Demonstrations and Meetings (1983) requires all members of a protest organising committee to submit a signed declaration to the district governor’s office 48 hours prior to the event; the Law Amending the Law on Powers and Duties of the Police, Other Laws and Decrees (2015) allows police to detain any protestor without consulting the prosecutor’s office, and imposes a five year prison sentence on protestors who cover their faces fully or partially during a demonstration.
3.47 Throughout 2019 and 2020, the government pre-emptively prohibited many demonstrations on national security grounds, and often detained persons likely to be involved before scheduled protests commenced. Turkey’s Human Rights Association claimed in 2019 police intervened in 962 demonstrations, and 2,800 individuals were beaten or subject to unnecessary force while police were breaking up protests. Security forces also pre-emptively close off prominent gathering locations on symbolic dates throughout the year to prevent protests.
3.48 In 2019 and 2020, police used tear gas to break up an 8 March International Women’s Day march of thousands of people in Istanbul – despite this event proceeding peacefully in previous years. In contrast, 2019 May Day protests, which are usually disruptive, were conducted peacefully across the country, but again prohibited in 2020. Police also used significant force on students at Ankara’s Middle East Technical University in 2019 who were attempting to protest environmental issues. During elections, the AKP and main opposition CHP are generally permitted to hold large public gatherings, but the Kurdish HDP and minor parties are usually prohibited from holding rallies.
3.49 DFAT assesses the ability of critics to protest government policies through political demonstrations has been significantly reduced by measures introduced during the state of emergency that remain in place. Those seeking to protest on sensitive issues are likely to be denied official permission, and to face a security response involving force if they proceed.
In view of the available country information, including from the submissions, the Tribunal is satisfied that even though the applicant has only been involved in anti-government protest activity in Turkey in a relatively minor way, his previous involvement would only serve to increase his risk profile should he return to Turkey in the foreseeable future. Accordingly, the Tribunal is also satisfied that the applicant would face a real chance of serious harm based on his anti-government political opinion should he return to Turkey in the foreseeable future. For these cumulative reasons, the Tribunal accepts that the applicant has a well-founded fear of harm upon return to Turkey.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Joseph Lindsay
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1973

24 March 2023

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