1828261 (Refugee)

1828261 (Refugee) [2023] AATA 1309 (1 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828261
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Rodger Shanahan
DATE:1 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 March 2023 at 10:51am
CATCHWORDS
REFUGEE – protection visa – Turkey – compulsory military service – conscientious objector – religion – atheism – family feud – father’s ex-business partner – credibility concerns – attendance of Fethullah Gulen schools – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
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 20 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 claims to be a citizen of Turkey, applied for the visa on 7 December 2015.
The applicant appeared before the Tribunal on 7 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Claims and evidence
Protection Visa Application
The applicant provided the following statement as part of his protection visa application:
My name is [the applicant]. I am making this statement for my protection visa application with Australian competent authorities. I was born in the town of Konak in Izmir province on [date]. I am member of a family who follow Sunni faith and I only one child in family. However I believe Atheism which is a lack of belief gods. My parents migrated to Karsiyaka from [Town 1] the province of Manisa in Western of Turkey.
My father [Mr A] was born in [Village 1] of [Town 1] on [date]. He is retiree from [public sector] when he was [age] years old because of his health problem and after the certain time he decided work [the private sector] while I was study high school. My mother [Ms B] was born in [Town 1] on [date]. She is a house wife.
I completed my primary, intermediate and high school in Izmir; then I decided come to Australia for my university education in 2006 because of compulsory military service. I come to Australia with student visa in order to improve my English, Foundation study and University education after about two years I attended my Foundation in [Discipline 1] and Bachelor degree field in [Discipline 2] at [University 1] and [University 2].
My reason was leaving Turkey and coming to Australia in 2006. I was thinking to delay my conscription in Turkey which is compulsory for every male citizen in Turkey to serve in Armed Forces when they were turn 21 unless still continue their higher education at Universities or vocational training programs are allowed to postpone their draft until they have completed these programs. (There is some exceptions such as handicapped, or mentally ill, or not healthy people).
I am conscientious objector, it is against my values to receive military training, to take arms in my hand and to learn how to kill the person same nationality as me. I am against violence and I belief that all conflict between individuals and between nations should be resolved through dialogue. No reason can, in my mind justify killing another human being.
There were serious establishing a "professional army" to combat terrorism in Turkey political circle in 2010 about abolishing mandatory military service and moving to onto a professional army instead. Turkish army forces are more than 600.000 strong and their budget 22.6 billion dollar which we compare Australia army budget 25.4 billion dollar in 2014. If it is unavoidable to have an armed forces organisation, it was common sense to establish a smaller a one which was made up of people who love military and accept it as a profession and government avoid that because expenses will be more heavy burden for government budget.
Firstly; my expectation was mandatory military service will be removed during the time I would be in Australia as a student thus I could start my professional career on my return to turkey without any military service problem. I would 'buy out' my military service within $8700 US dollar early last year. The AKP (Justice and Development party) could have seen such a popular move, which concerns hundreds of thousands of young men and their families, as an election investment but what about the statements repeated only few months ago by Davutoglu that the scheme was not on their agenda and that they did not approve of selling of military service? Totally I am against that selling off military service because that moneys goes for investment for army budget to improve weapons.
Secondly; I was thinking to apply skill migration to get my permanent in Australia however that has not happened because I would not pass the English exam which require to get me 7 out of 9 even I done my tertiary education in Australia. In addition to the belief issue, it is also a serious problem for me to live in Turkey freely tell my idea for my family environment. I want to be far away with my grandpa because of the he force me get university education in field of divinity school after I done my high school.
I always had argument with him regarding religion. My grandpa is Hajji. It is an honorific title given to a Muslim person who has successfully completed the haji to Mecca. The Quran, the sacred text of Islam and I had my arguments with him about Quran which I always against him and his religion. My grandpa pray five times a day and he always ask me to are you thinking to come mosque??
Especially at night time before dinner. When I was young I was joining him but when I grow up which I start against Islam, I was refused him and he told me as hypocrite. He force me to go mosque while I stay with him. Those things not makes happy my parents because in my culture you have to listen who is older then you or should not against anyone who is older then you.
The abuse and harm I was subjected to because of my religious identity had a serious impact in my personality. My self-respect and self-confidence suffered because I always kept my Atheist faith hidden. In primary and secondary schools, all student, regardless of their religious identities, have to take the subject of Religious Culture and Morals which is based on the teaching of Sunni faith. I prefer to learn all religion instead of intensive only base on one religion then I prefer to choice my belief. In Turkish education is always under oppressive and you cannot refused your Sunni faith in your life.
It can be argues that the state treats every citizen equally with respect to military service and no discrimination exists because all male citizens have to serve in the military the truth is different. Nepotism and corruption which is common in all institutions in Turkey is much more wide spread in Armed Forces. People who have financial means can buy medical certificates to purport that they are not fit for military service or they can pay bribes to serve in big cities like Istanbul, Ankara and Izmir, or military recreational camps in coastal towns or in officers clubs.
More than ten thousands soldiers were killed during the last 30 years in clashed between Kurdish separatist guerrillas and army troops; it is not possible to find a son of politician, son of high level government servant, a son of an army officer or son of a rich businessman among them. Those who got killed are sons of poor families, peasants and those who live in shanty towns; because it is only them who get sent to territories of crash and to dangerous missions as they have no money and no backers.
Another aspect of the issue relates to the high esteem within the society that is associated with the military. Military is still a profession that is highly revered and respected within Turkish society. "Every Turk is born as a soldier" is a common saying. Even though it is clearly against the basic democratic principle of freedom of thought and expression, there exists in Turkish Penal Code an offence called "to make people think negatively about military service" (TCK Article 318).
According to this article, to express opinion against compulsory military service is an offence punishable by 6 months imprisonment. To many people in Turkey, it is a sign of patriotism to serve in Armed Forces. Therefore, conscientious objection is not supported by the majority of people, it is interpreted by many as lack of patriotism. From that perspective, it is possible for conscientious objectors to be despised and abused and even subjected to physical abuse.
My dad started to work with private company after his recovery from heart attack which company had some [project] with government contract. He spent most of time for his work in his life and after certain time he trust the guy who is the company owner also the company was financially goes very well but somehow circumstances of politics stuff in 2009 company was goes hard sledding. However my dad decided to help to company regarding funds and he decided show his investments as secure and borrow the money during the company difficult period without me and my mum knowledge.
Furthermore company was goes to bankruptcy and he scared to lose the apartment that my parents living then he told me situation and for my mum. My mum against him and she take it action for court because of that s apartment is family occupier and you cannot show something family occupier to borrow money for your business unless your partner which is my mum needs agree that too borrow money.
Currently; my mum win one of court because of fake signature under his name. Those things happen my mum has catch cancer disease and he try to recovery his health. Court refuse the application that bank try to sell my parent apartment in Turkey. However there is fake signature which my dad believe: it is looks like [Mr C] who was the owner of the company sign that paper instead of my mum. Next step would be we gone take it action for the bank because they accept something my mum did not sign. The guy who was owner of company would get jailed.
I am worried about my safety if I am going back Turkey. Firstly; I am worry to become blood feud between two families. Secondly; it is for sure that I will forcefully be conscripted because I will no longer be a student. I will be army camp, if I going back my country. Furthermore if I attend army service, I am going to desertion and I will be forcefully conscripted when my jail term ends. This is what happened to many conscientious objectors who refused to be conscripted.
As an additional punishment, conscientious objectors are sent to areas and positions with the most difficult conditions when they complete their prison term. I do not even want to think of myself in such a situation. If I am forces to serve I will either desert on the first opportunity or develop psychological problems. I want to live freely in line with my beliefs and values. I do not want to kill and I do not want to be killed. I do not want to receive training on how to kill. It is my most basic human right to live in accordance with my beliefs, political opinion and values. Because this right is not recognized there, I do not want to go back to Turkey and I demand protection from Australian competent authorities.
AAT Hearing
The applicant was told that he had been asked for some documents and he had provided them but none of them were translated. He was advised that the Tribunal could not take them into account until they were translated. He said that the documents related to his mother’s cancer treatment and his father’s court case. He stated that his father’s court case was concluded and they got their apartment back. Asked when this was, he claimed that it was around 2018.
He claimed that if he returned to Turkey he would be forced to go into the military and this represented significant harm. Asked what harm this was, he said he might be killed by someone in the military because they may not agree with his beliefs. He had no other fear given his grandfather had now passed away.
It was put to him that he had previously made some claims and he was asked if he still relied on them – he said that he didn’t. Asked about his claim to be an atheist, he said that this only applied to the time he would be in the military. He was asked and agreed that he was not making a separate claim to fear serious harm because he was an atheist.
He was asked about a blood feud between two families as a result of a court case and whether this still represented a claim and he stated that it was no longer a claim as the court case had cost them money but they had got their apartment back. His father didn’t want to pursue any more legal action. He said that if he went back he may try to recoup their money. He was asked whether he was making a claim and he said that he wasn’t as the feud had come to an end.
Asked if the feud would start again, he said that if he returned to Turkey then he may try to get his rights back, but he wasn’t going back to Turkey. It was put to him that he was asking the Australian government to provide him with protection so he needed to be clear with his claims. He was asked again if the blood feud had ceased with the court case’s conclusion and he agreed that it had. He claimed that the other party still owed his father money so there was still something not resolved.
It was put to him that he had to be clear about whether he was making a claim. He stated that if he returned there could be some type of problem. He was asked and then said that he was making a claim. He was asked what serious harm he feared if he returned to Turkey he claimed that his father’s ex- business partner was from type of mafia and if he tried to get money back from them he might be killed. Asked why he would be killed, he claimed that there could be an incident while he was trying to get the money back and he could get killed. This person owed his father money which was also his money – he had given his father 80,000 TL in 2008. He said it was kind of his money and then, when asked to clarify, said it was his money. He had no other claims.
Asked about his claim to fear being killed undertaking military service, he stated that if he had gone back in 2015 there was an attempted coup in 2016 and he may have been killed. He was asked why he feared harm if he returned to Turkey in 2023 and he said he was a conscientious objector and had been avoiding military service for eight years now and penalties are accumulating at the rate of 10TL per day.
There will be some fine to be paid for avoiding military service if he returned to Turkey. Asked if this was different to his claim to be killed if he undertook military service he said it was which was why he wasn’t returning. Asked if he had any documentation, he said that he received texts from the Turkish government approximately every six months. The interpreter provided a translation of the texts and they appeared to be informing him that he was required to complete his military service procedures through the myGov equivalent or in person at a recruitment centre. The texts had started in 2021 and the applicant said that this was because it was a new phone.
The applicant became eligible for conscription from the end of 2015 after his study finished. Asked if he could have bought his way out, he said that he couldn’t. It was put to him that country information indicated there was a scheme where he could buy his way out after completing a one-month initial training course. He claimed this only applied to those permanently overseas. Asked if he had this right previously, he said only those eligible for permanent residency overseas were allowed. It was put to him that country information indicated that from January 2016 it was open to people who had lived overseas for at least three years or worked overseas for three years. He disagreed this was true. He was asked why he didn’t have this option and he claimed that there was a report from 2020 that changed this. He said he had also read that report from 2016 and this was wrong. It was put to him that a new law came into force in 2019. He said that they had made a mistake and he was asked if he could provide evidence that it was wrong – he said that he could (none was provided).

It was put to him that conscription was universal and was non-discriminatory and hence did not normally meet the threshold for persecution because it applied to everyone equally. He claimed that there was discrimination in every aspect and he did not want to do it. Asked what would happen to him if he returned, he said that his passport had expired and if he really wanted to go back they would issue him with a 28 day passport just to return to Turkey and do his military service.
If he refused to do it on return he would be imprisoned. He was asked why he didn’t just to pay the fine he said it was not enough just to pay the fine. Country information was put to him that the Turkish government didn’t imprison those who refused military service. He stated that the imprisonment was because he rejected the service, not for refusing to pay the fine. Country information was put to him that there were lots of people who didn’t do their military service and, while the government didn’t actively look for them if they found them then the government may take some of their assets to pay the fines.
He claimed that there was no such thing as not being caught if you entered Turkey – if you are over 35 then you go onto the military or you go to jail. He was asked to provide country information about Turkey jailing people who avoided military service and he said he would (he never provided any such information) and believed that it was in the 2020 DFAT Country report. He was advised that it wasn’t.
He agreed that as a graduate he was expected to do six months’ service and he was asked why he wouldn’t do this. he said he was a conscientious objector and was scared of being killed. Asked what roles that conscripts were employed on in the Turkish military, he said he didn’t have much information about this. Country information was put to him that there were so many individuals due for military service annually and they weren’t effective soldiers as they only served for six months – the Turkish government was looking to make a smaller, more professional force so as a result conscripts weren’t used in the front lines in the Kurdish areas or in Syria which was for the full-time force. Conscriots were kargely used for base support, ceremonial and guard duties.
The applicant was from Izmir and country information indicated that conscripts from coastal areas could be used in the navy. Given this, conscripts weren’t used in an offensive capacity and were largely out of harm’s way – he was asked why he believed that he would be killed during his service. He said that he had provided a story about a conscript being killed and he could give more stories about this type of assault. He agreed that the shooting was in 2011 as part of a barracks room dispute and was asked how many such shootings occurred each year and he said that he didn’t know.
It was put to him that hundreds of thousands of conscripts went through the system annually and the person who shot the other was found guilty and sentenced to a long jail term so there was accountability for what appeared to be a very rare incident.
He was asked to address the information about conscripts being given low-risk tasks and he said that the selection of people to army or navy was done randomly by computer and not at the request of an individual. He was asked if he had country information to support this and he said that he didn’t but this was how it worked.
It was put to him that he claimed to have a lot of information about people being shot while on conscript service, yet he had only provided several reports of the o0ne incident. He said there were many cases but not in English. It was because the person was Armenian. He stated that he applied for protection in 2015 and it was put to him that he had had a long time to gather country information. He said that even if one wanted to search on Google for news about the coup the Turkish government had removed a lot of it. He didn’t know when he would be detained but thought at the moment people were given 15 days to report to a military camp – they used to detain people at the airport on arrival.
Asked about his claim to fear being killed by his father’s ex-business partner, he claimed that the other party was made up of armed people who were powerful. They applied to the courts to get justice but it wasn’t happening. If he returned to turkey and tried to get justice he believed he would be threatened by the other party. Asked if he had launched legal action he said that they giot their apartment back but they were still owed money as the other party refused to pay. Asked if he had launched legal action personally, he said that he hadn’t.
Asked when the court case was finalised, he said that it was Asked what the document was, he said it was the ruling of the court of appeal. It was put to him that the Tribunal asked for a range of documents such as from the bank, summonses and the like. He said that he didn’t have time to translate them. He said his father lived in another city and had to go to Izmir to get the documents. Asked why his father didn’t have copies of them, he said he hadn’t been in Izmir for three or four weeks. It was put to him that the case had been going on for years and he had a long time to gather documents yet all he had given was a photocopy of a document so the Tribunal had no confidence it was genuine. He said he understood and he didn’t have the time.
Asked when the court case was for which he had provided a document, he said that it was 2015. This court case related to them using their home as collateral for a business loan and they needed to get their house released. Asked who brought the court case, he said that it was his mother. Asked if there were other court cases going on, he said there were cases for some assets such as machinery but they hadn’t been resolved.
Asked which case he meant when he said the court case was resolved, as he had previously made a claim regarding an ongoing court case. Today he said the court case was concluded and he said that it was his mother’s case involving the collateral. It was put to him that this case was concluded before he had the interview with the Immigration Department and he agreed but said there were other cases going on as well.
Asked if he ever mentioned previously that his money was involved in the dispute, he claimed that he didn’t remember but in their family there was no difference between his, his father’s and his mother’s money. He said he had his own money in Turkey and had $400,000 but it was in his mother’s name in case anything bad happened because of the conscription issue. He agreed that he could easily pay any fine imposed on him.
He was asked to confirm that he no longer had an issue about his atheism now that his grandfather had passed and he agreed this was the case. He then said there could be a problem if he was discussing the issue with someone but he wouldn’t be killed. It was put to him that he had previously said he had no claim regarding his atheism and now he was saying that he might have a problem. This was not very convincing given he appeared to be changing his mind.
He was asked again and said that in the community he wouldn’t be harmed but may be killed in the military. Asked if there was any evidence that atheists were killed in the military and he said he didn’t have information on this at the moment. He agreed he had been back to Turkey several times since being in Australia to see his parents. His school friends were mostly in Europe.
He was advised about s 424AA and it was put to him that he had made a claim at his interview in relation to his atheism in which he stated that if he returned to Turkey he feared serious harm because he would be rejected by the community and he could be harmed, involved in fights and he would refuse to say ‘Salaam Alykum’ or “Alaykum Salaam’. This was inconsistent with what he had claimed today at hearing where he said that it was no longer a claim as his grandfather had passed and he wouldn’t have a problem with broader society.
He said that in 2015 he was in contact with his aunties and other relatives but at the moment he has no contact with them. He had no connection with anyone else, only his parents. It was put to him that he said he would be rejected from the community which was broader. He said if he went back to Turkey he would just be working and not part of the broader community. He said it was now 2023 and he didn’t know what would happen.
It was put to him that ‘Salaam Alaykum’ was not a religious greeting and was used more broadly. He was asked why he couldn’t just say ‘Marhaba’ in reply, and he said that ‘Salaam’ had religious connotations because it was about bringing God’s peace. It was put to him that it was simply peace to you and upon you peace and in the member’s experience this was a common, general greeting. He claimed that if he just said hullo to someone in Turkey they might take offence and fight him.
It was also put to him under s 424AA that when he raised the issue of the court case in 2018 he said that the court process was ‘nearly finished’ and yet in 2023 he was saying that it wasn’t finished. He claimed that there were different cases – one case finished and the other goes on. He said that there were two; his mother’s claim which had concluded in 2015 (but which he hadn’t mentioned to the interviewer) and another one that he said was nearly finished when interviewed in 2018. He was asked how it could be nearly finished in 2018 and yet in 2023 it was still going on. He stated that he meant to say that it appeared to be finalised but because the funds weren’t collected, one could re-start the procedure in order to collect the full amounts. It was put to him that he had not provided any court documents and the concern was that there was no court case. He said that he understood.
It was also put to him under s 424AA that he had said today that it was his money that he might go and try to collect from his father’s ex-business partner but he told the Department that he would try to get his parent’s money and this was an inconsistency in his claim. He said that he was an only son and so he considered it to be his as well.
He agreed that he had returned to Turkey at least six times and was asked if he had tried to recover the money on any of these occasions – he said that at this time business was still going on. It was put to him under s 424AA that he told the Department the court process began in 2010 and he had gone back to Turkey a few times after 2010 and was asked if he had tried to recover the money then. He said he didn’t want to risk his life.
He was asked why he would risk his life if he returned now when he hadn’t done it previously, and he said that his father told him to leave things as they are as he didn’t want anyone killed over it. He was asked why he would then try to get this money and he said that he didn’t need it at the moment but he may at some time in the future.
Regarding his atheism he was told the Tribunal had to determine if he was atheist or simply a non-practising Muslim, and whether he was a member of any atheist group or active on social media putting forward atheist thoughts and he said he had none of this. It was put to him that he could be atheist or agnostic or a cultural Muslim who didn’t practice his faith, and was asked why he described himself as an atheist. He said that he believed in his heart and he didn’t want to have something on social media as it would break his mum’s heart. He was asked why he didn’t have a separate account under a different name. He said he didn’t want to do this.
He said that he believed God was in his heart. It was put to him that this was not an atheist as atheists don’t believe in a God. He said that he didn’t believe in a God but that God could be in one’s heart. He said that he didn’t know what this meant but this was what he believed. It was put to him that the Tribunal wouldn’t believe him to be atheist from what he described as his belief.
He was asked if he had previously said that he couldn’t buy his way out of conscription and he denied saying this. He agreed at some point he could have bought his way out. He didn’t do this as he didn’t believe in giving money to be spent on weapons and didn’t believe in Turkish policy on Syria, where the government gave people in Syria guns.
Asked if he paid for his Turkish passport in 2011 and he said that he did. Asked if he flew Turkish Airlines and he said that he had once. It was put to him that he was paying the Turkish government in other ways and didn’t object to this. He said they were from different budgets. It was put to him that money would go into consolidated revenue. He said that he had no choice about the passport for instance.
He said that he may not be a refugee but he would seek to stay under complementary protection. Asked what the connection with complementary protection, he said that if he returned to Turkey he would be subject to inhuman treatment. Asked what this was, he said he would be excluded and not able to be employed because he was from Fethullah Gulen schools (but was not a Gulenist). Asked if he had made such a claim before, he said that he hadn’t.
Asked whether he was going to provide country evidence in support of such a claim he said he wasn’t making a claim regarding this and he had no evidence to provide but this would happen in the future. He claimed that his friends were living in Europe and couldn’t get a job because he went to a Gulenist school. He was asked whether he could provide any evidence and he said that he couldn’t. In these circumstances, credibility was very important so it was unlikely that the Tribunal could accept its truthfulness if he had been untruthful in other areas of his claim. He had had a lot of time to put together country information and claimed that he had a lot of money in the bank to pay for what was required. He was asked to provide more information about the court case in particular.
CONSIDERATION OF Claims and evidence
The applicant first arrived in Australia on a student visa in November 2006 and applied for protection in November 2015. He is a [age] year-old Turkish male – I have sighted a copy of his passport and accept that Turkey is the applicant’s country of nationality.
He claimed that if he returned to Turkey he would be made to join the Turkish military and may be killed by someone in the military who disagreed with his beliefs. He also claimed that he may be killed by his father’s ex-business partner for trying to recoup money owed to him by the ex-partner. To the extent that it is relevant I have taken into account the September 2020 DFAT Country Information Report – Turkey.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated all of his claims in order to be granted a protection visa.
Conscription
I am satisfied that the applicant has outstanding military service obligations on return to Turkey. I do not however, accept that there is a real chance that he will suffer serious harm because of this. To begin with, the policy of conscription is non-discriminatory and hence does not accord with the requirements of persecutory behaviour set out in s. 5J(4) of the Migration Act. The state therefore has a right to enforce that law and to punish those that disobey that law. I have not accepted his claim that conscripts (including those that refuse conscription but are made to serve after their jail term) are sent to the most dangerous places. Country information indicates that those who do not do their service are not jailed, and that given the oversupply of eligible conscripts they do not serve in combat units.
The applicant also claimed that if he were to serve in the military and express his atheist beliefs, he was at risk of being shot by someone who disagreed with this. There is no country information to support the claim that such disputes are commonplace within the Turkish military – the applicant provided evidence of a single, widely reported instance from 2011 when an Armenian conscript was shot and killed by another conscript after an argument. The other soldier was charged, convicted and given a hefty jail sentence as a result. I do not accept that the absence of any other recorded instances was because they were reported only in Turkish-language media as the applicant had the opportunity to provide translated copies of this media if he so chose.
Country information regarding access to exemptions is somewhat unclear. A February 2019 article noted the pressures on processing the large numbers of individuals for military service for a military that didn’t require them all. It stated that there was a required army force level of 350,000 but as at 2018, 5.5 million people still carried a military service obligation. As a result the army no longer uses conscripts in combat units[1] so the applicant’s claim that only non-connected, poor conscripts are sent on dangerous missions lacks credibility. The same goes for his claim that conscientious objectors are sent to the most difficult positions when they complete their prison term. I have also noted below that I do not accept that the applicant will be jailed for refusing to do his military service or refusing to pay a fine.
[1] Onur Kara ‘Conscription Reform and the Future of Military Manpower in Turkey’ 12 February 2019, Conscription Reform and the Future of Military Manpower in Turkey - Strife (strifeblog.org) accessed 22 February 2023.
The inability of the Turkish military to absorb the numbers available for conscription also drives the attraction to the government of allowing exemptions to be purchased for those who can afford it. Country information indicates that people born before the year 2000 can buy out the remainder of their six-month service after completing 21 days training – some information says a 2019 law says the buyout can occur after one month of training, although other information says that this is limited to those whose service obligation became due after the passage of the law.[2] Other country information states that individuals are exempted for living outside the country but they pay a fee if they later return to Turkey.[3]
[2] See TUR200361.E - Nov 2020 (justice.gov), accessed 22 February 2023.
[3] DFAT Country Information Report – Turkey, 10 September 2020, p 38.
It is possible that the applicant may be able to avoid military service altogether, or just attend a few weeks training and buy his way out. The applicant claims to have $400,000 (assumed to be AUD) in a Turkish bank account under his mother’s name so he could easily afford to pay any exemption. Those who refuse service would be expected to pay a fine and he would also be able to do this easily. A recent article from a Conscientious Objector’s group noted that in 2021, 85 individuals were ordered to pay 575,000 TL (this equates to around AUD 530 each).[4] Even if I were to accept that he would be fined 10 TL a day for the last eight years this still only equates to approximately AUD 2300 which is also easily affordable.
[4] Conscientious objection in Turkey: 85 penalized by administrative fines totaling 575,000 liras (duvarenglish.com), accessed 28 February 2023.
The applicant appears well able to pay any fine, however he also claims that he would refuse to pay this fine because he is a conscientious objector and this would be against his principles, as that money would go to pay for more weapons for the military. I do not accept that he would refuse to pay the fine as this rests entirely on his own oral testimony which (see below) lacks credibility with respect to other claims he has made.
In any case, country information also indicates that prison is not used as punishment for evading conscription or for non-payment of fines[5], although it is possible that the state may seize some of his assets to pay his outstanding debt – given he has AUD 400,000 in the bank the forfeiting of such a small amount would not represent anything approaching significant economic hardship and therefore would not represent serious harm for the purposes of s 5(J)4b of the Migration Act.
[5] DFAT Country Information Report – Turkey, 10 September 2020, p 39.

Whilst I accept that there is a section of the Turkish Criminal Code that makes it an offence to publicly criticise and disseminate criticism of compulsory military service (not simply to express an opinion against it as the applicant claimed), the law was amended in 2013 to specifically include those actively encouraging others to desert the military or to refuse conscription. Country information indicates that an attempt to prosecute one of the founding members of the Association for Conscientious Objectors for social media posts against conscription failed when he was acquitted at the first hearing.[6] Given the applicant has not provided any evidence such as social media posts that indicates he is public in his condemnation of conscription or that he publicly advocates people to desert or refuse to be conscripted, nor has he claimed that he would do so in the future, I am satisfied that the authorities would not pursue him using this Article of the Criminal Code.
[6] TURKEY - Input for OHCHR report on conscientious objection to military service.docx, accessed 28 February 2023.
I also do not accept that it is possible for conscientious objectors to be abused and subject to physical abuse. The Tribunal is not aware of any country information to support such a claim, nor has the applicant provided any.
Atheism
I do not accept that the applicant is an atheist. Proving one’s religious identity (or lack thereof) can be difficult because matters of faith by definition can be very particular to an individual. He has no ideological ‘footprint’ such as social media where a better sense of his faith can be discerned. The Tribunal is then left with the evidence that he presented at hearing, which is that he believed that God lived in one’s heart. This is more akin to someone believing in God but not organised religion, rather than an atheist who doesn’t believe that there is a God.
The Tribunal is therefore satisfied that the applicant is not an atheist but someone who believes in an individual relationship with God but without organised religion. Regardless, I do not accept that there is a real chance that the applicant will face serious harm because of his religious views. He was somewhat vague and inconsistent about this claim. In his written statement he claimed that he feared his very religious grandfather but at hearing he stated that now that his grandfather had passed away, he only had concerns that his beliefs would impact him in the military.
Later at hearing he claimed that there could be a problem if he discussed his beliefs with someone but that he wouldn’t be killed, and then later that he wouldn’t be harmed in the community but that he may be killed in the military. This was inconsistent with what he claimed at interview when he told the delegate that he feared serious harm in Turkey because of his religious belief and that he would be rejected by the community and could be harmed because he would refuse to say ‘Alaykum Salaam’.
He has provided no evidence that people in Turkey are harmed for not saying ‘Salaam Alaykum’ or they would be shunned by the community for not doing so, nor is any such information available to the Tribunal. As a result I do not accept that this would occur. I also do not accept that someone may fight him if he just said ‘hullo’ to someone in Turkey – no country information was provided in support of such a claim nor is any available to the Tribunal.
His response to the inconsistency raised was unconvincing, simply saying that he wouldn’t be part of the broader community if he returned to Turkey as he would just be working, and that in 2023 he didn’t know what would happen. The applicant has returned to Turkey on numerous occasions since he has been in Australia and this is further indication that the applicant does not fear rejection by, or harm from the community because of his religious beliefs.
Because I do not accept that the applicant is an atheist I also do not accept that he would publicly espouse these beliefs in the Turkish military and be harmed because of it. He has shown no indication that he publicly espouses any religious belief and therefore it lacks credibility that he would start to do so if in the Turkish military, and there is no indication that such disputes (if they occur) result in serious harm, or even death, in the military.
Family Feud
I do not accept that there is a blood feud between two families over money. He was vague about the claim and the documentation he provided in support of the claim is confusing and their relevance questionable. In his interview with the delegate he claimed that during financial problems involving their [company] (which was subsequently declared bankrupt) his father had borrowed money against the family apartment without the rest of the family’s knowledge. It appears that the father’s ex-business partner [Mr C] falsified the applicant’s mother’s signature on the loan document and if this could be proven [Mr C] would go to jail.
In his protection visa statement of December 2015 he claimed that his mother won one of the court cases over the bank trying to sell the apartment, but that the next step would be to take action against the bank because they accepted the fake signature and provided the loan. In his 2018 Departmental interview he claimed that the court process was nearly finished, and in his AAT hearing he claimed that there were ongoing court cases for other assets such as machinery. I do not accept that in 2018 it appeared to nearly be finalised but because the funds weren’t collected at the time, a party could re-start the process to obtain the funds.
This explanation is confusing and not supported by any documentary evidence. It also does not explain why, if they were successful with the first court case in 2015 and the next step was to take action against the bank, that they hadn’t commenced proceedings eight years after their court win. Prior to the hearing he was asked to provide an update regarding his parents’ legal actions, including evidence such as court summonses/documents, correspondence with the bank regarding the issues he had raised. He failed to provided a written response but provided some copies of what he said were untranslated Turkish court documents. Post-hearing he provided some translations of those documents but no further information regarding the legal action as he had been requested.
The document provided however is simply a photocopy of an original document so its veracity cannot be proven. The Tribunal is also concerned that, whereas the applicant claimed that the court case related to retrieval of their apartment that was used as collateral for a loan, and that the case was brought by his mother, the applicant’s father is named as the plaintiff. Given these concerns the Tribunal lends the document little weight.
I also do not accept that the applicant may seek justice against, or collect money owed them from, his father’s ex-business partner who was connected to criminal groups and that he could be injured as a result. He provided no evidence that they were owed money and neither has he or anyone else in his family legal action against this person. Given the Tribunal’s concerns regarding the applicant’s credibility and, in the absence of any evidence to the contrary, I am satisfied that the applicant has fabricated his claim that his father’s ex-business partner owes him or the family money.
Other Issues
I do not accept that the applicant would be excluded and not able to be employed because he had attended a Fethullah Gulen school. He had never raised this as a claim previously, he wasn’t making a claim regarding this, had no country evidence to support the claim but that it would happen in the future. Even though he said it wasn’t a claim, the Tribunal will still address it as such. The applicant stated that he was not a Gulenist but that friends were living in Europe because they couldn’t get a job as they had attended a Gulen school.
In the absence of any country information that supports such a claim, as well as its lateness, the Tribunal does not accept it to be true. If it is true that friends have gone to Europe, there are many reasons why this could be the case. An inability to gain employment in Turkey because of their secondary schooling location relies entirely on the applicant’s oral testimony which I have found lacks credibility.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant will be forced to undertake military service on return to Turkey, that he is owed or would seek to recover money from his father’s ex-business partner, that he is atheist or that his religious beliefs would cause him harm in Turkish society or that he would be unable to get a job because he went to a Fethullah Gulen school, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
Although it is possible that he may have to pay a fine I am not satisfied that he will refuse to pay it and, given by his own admission that he has over AUD 400,000 in a Turkish bank account he is well able to pay the fine and the payment would not represent significant harm as a result.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

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

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

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

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

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

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

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

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

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

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

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

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

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

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

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

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

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

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

[2023] AATA 1309

1 March 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction