1904113 (Refugee)

1904113 (Refugee) [2022] AATA 5153 (6 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Paola Andrea Aristizabal Ramirez
CASE NUMBER:  1904113
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Sheridan Lee
DATE:6 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 06 December 2022 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Turkey – religion – Alevi – particular social group – women who seek protection from family violence – victims of family violence with mental health issues – child in the care of a victim of family violence – physically and sexually abused by husband – fears harm from husband, husband’s family and own brothers and father – widespread gender-based violence – domestic abuse widely tolerated by the state – poor mental health – 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 12 February 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The primary applicant, [the applicant], is a [age]-year-old woman and the second named applicant, [the second applicant], is her [age]-year-old son. The application for protection form outlines that the applicants are Turkish and Alevi.
[The applicant] completed primary school in [year] and attended high school until year 10 or 11. She has had no further education and no formal employment.
The applicant was married on 10 August 2006 to [Mr A]. [Mr A] is the father of [the second applicant].
[The applicant] and [the second applicant] first arrived in Australia from Turkey [in] July 2016 on Subclass 600 Visitor (Tourist) visas and applied for protection visas on 26 August 2016. The applicants claimed protection primarily on the basis that they would be harmed by [Mr A].
The applicants provided a copy of their passports, issued by the Republic of Turkey, to the Department of Home Affairs. I accept that the applicants are citizens of Turkey and will assess their claims against Turkey as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicants are persons to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
Application for protection
The application for protection form submitted to the Department outlines that [the applicant] left Turkey with her son to escape her husband, who was verbally and physically abusive. She claimed that her husband would sell her to other men for sex and she was unsure who the father of her son was because of this. The applicant attempted to seek help from a women’s refuge however her husband found out. She was not allowed to leave the house and was never able to report what was happening to the police.
[The applicant] expressed fear that if she returned to Turkey, her husband would locate her, physically harm or kill her and her son. She also expressed fear of her husband’s older brother and other contacts, along with her own brothers. [The applicant] alleged that her sister [Ms B] was stabbed by their brothers when she divorced her husband and she is now in hiding in Turkey.
In addition to her fear of physical violence, the applicant alleged that she experienced discrimination because of her religion and was never free to practice her religion as an Alevi in Turkey. As a single, Alevi woman with limited education and no money, the applicant said it would be difficult to establish herself in another area of Turkey.
No discrete claims were put forward on behalf of [the second applicant].
The application for protection form contained the following information:
·The applicant married without the permission of her father. She moved from her hometown of [Town 1] to Istanbul to be with her husband, [Mr A]. The applicant had not spoken with her family since she left home.
·She was physically and sexually abused by both her husband and his brother.
·Her husband sold her for sex to settle debts and in exchange for money and drugs.
·The applicant suffered a miscarriage because of the beatings and would often fall unconscious.
·[The second applicant] was born premature and the applicant is unsure of the identity of his biological father due to the rapes. Both [the second applicant] and the applicant were malnourished.
·The applicant was taken to a women’s centre to seek refuge by a neighbour. She was locked in a room with no food or water by [Mr A] when he discovered the materials she took home from the refuge.
·A man she met at the refuge assisted the applicant and her son to flee Turkey to Australia.
·The applicant’s sister met her at the airport in Melbourne and they lived with her for two or three months.
In addition to the application form, the applicant provided a statutory declaration made on 15 June 2017. The declaration contained the following information:
·The applicant fears harm from her ex-husband, [Mr A], [Mr A]’s family and her own brothers and father. She also expressed fear for the safety of her son.
·The authorities in Turkey would not protect the applicants because family violence is viewed as a private matter and protection would be refused because of their Alevi religion.
·The applicant said she had been diagnosed with post traumatic stress disorder and prescribed [anti-depressant and anti-psychotic medication]. She alleged that the medications affect her memory and cause headaches and nausea.
·The applicant was born in [Town 1], Tokat Province, Turkey. [Town 1] is a village with a predominantly Alevi population.
·She grew up with her two brothers and two sisters. At the time of the statement, she believed that her parents remained in [Town 1] and her brothers were in Izmir. The applicant’s sister [Mrs C] lived in Australia and is an Australian citizen. She was unaware of the location of her sister [Ms B].
·The declaration noted that the application for protection form said that [Ms B] was stabbed by her brothers. However, the applicant wasn’t sure if it was her brothers or [Ms B]’s husband.
·The applicant’s father was a harsh man and a big drinker. He would beat the applicant’s mother and siblings. The applicant’s brothers also beat her. The applicant was afraid of all the men in her family.
·The applicant attended school until the age of 10 or 11. However, even when she was enrolled she would often be put to work by her father.
·The applicant’s teacher was a Sunni man appointed by the government. If students did not attend mosque, the teacher would beat them with a ruler. This happened to the applicant on several occasions.
·Soldiers and Sunni youths from other areas would threaten to abuse people that did not attend the Sunni mosque. On one occasion the applicant’s brother was beaten by locals in [Town 2] for being Alevi.
·[Mr A] lived in Istanbul but had family in [Town 1]. The applicant first met [Mr A] when he came to the applicant’s home with his family to ask her father if he could marry the applicant. The applicant’s father did not agree to the marriage.
·[Mr A]’s family encouraged the applicant to leave the village to live with [Mr A] in Istanbul regardless of her father’s decision. The applicant’s life was difficult in [Town 1] and around a week or two later she made the spontaneous decision to leave with [Mr A].
·The applicant had not returned to [Town 1] since she departed with [Mr A]. After she ran away her father disowned her. If she returned she would be killed.
·The applicant married [Mr A] in August 2006. She lived with [Mr A], his parents and siblings in Istanbul. The applicant was treated poorly by the family. They made her eat separately and restricted her movements. [Mr A] was not working and her would often go out to drink and gamble.
·About one month after they were married, [Mr A] forced the applicant into a car with two or three other men. She was taken to a remote location, restrained, raped and beaten. The applicant was later told by [Mr A] that he had used her to settle a gambling debt.
·[Mr A]'s brother [Mr D] would often try to take advantage of the applicant and she would avoid him around the house. [Mr D] was a violent man that would beat his own wife. [Mr D] eventually raped and assaulted the applicant on several occasions.
·Around one year later, [Mr A] and the applicant moved into a bungalow at the back of the family home. At that time the applicant became pregnant and miscarried. She believed the miscarriage was the result of the violence she experienced from [Mr A]. No one took the applicant for medical care.
·The applicant attempted suicide with pills her mother-in-law threw away. However, she was discovered and forced to throw up what she had consumed.
·On occasions the applicant would fall unconscious from the beatings.
·Six or seven months after the first miscarriage the applicant fell pregnant again. Because of the rapes she is unsure of the biological father. [Mr A] continued to sell her for sex while she was pregnant.
·[The second applicant] was born around eight week premature on [date]. When he was seven months old he required surgery on his intestine. The applicant believed it was due to malnourishment. She was also malnourished.
·When [the second applicant] was around three, [Mr A], the applicant and he moved to [Location 1] in Izmir. The applicant recalled that there had been unrest in their neighbourhood in Istanbul. On one occasion a cross was painted on their front door. She wasn’t sure what it meant but it seemed like a threat against the household due to their Alevi religion.
·[Mr A] continued to sell the applicant in exchange for money or drugs. He threatened to harm [the second applicant] if the applicant resisted. On one occasion, [Mr A] threatened the applicant and [the second applicant] with a gun.
·The applicant had no phone and [Mr A] would not allow her out of the house. She felt that even if she went to the police they would not help.
·After approximately 18 months to 2 years, they moved to [Location 2] in Izmir because [Mr A] could not pay the bills and they were receiving complaints about his noise and bad behaviour. At the new home a neighbour took pity on the applicant. When [Mr A] would go out, the neighbour would bring food.
·The neighbour asked the applicant to do some cleaning work. [Mr A] allowed it because he needed the money. The applicant went to clean the home on two occasions. The neighbour took the applicant to a women’s centre to apply for refuge.
·The applicant completed some forms and was told that the refuge would contact her neighbour when a place became available. While the applicant was at the centre, an unidentified man gave her a piece of paper with his number on it and told her to call if she needed anything. The applicant was unsure if he worked for the centre.
·[Mr A] discovered the documentation from the women’s centre and became angry. He locked the applicant in a room with no food or water for a few days. The applicant did not know where [the second applicant] was during that time. The applicant never heard from the neighbour again. She believes the neighbour became scared when she heard the noise.
·[The second applicant] was traumatised by witnessing the abuse. He wouldn’t sleep and would cry constantly.
·In 2015, the family again moved because [Mr A] was making noise and not paying the bills. They moved to [Town 3] in Edirne Province. The house at [Town 3] was leaking, had bugs and there was no proper kitchen. The area was unsafe and local youths would sometimes throw stones at the house.
·[Mr A] allowed [the second applicant] to attend school in [Town 3] because the school was close enough for him to walk without the applicant having to leave the house. [The second applicant] would often run off from school.
·The applicant had a neighbour named [Ms E] who would visit from time to time. [Ms E] took the applicant to the doctor to examine [the second applicant’s] skin without [Mr A]’s knowledge. [The second applicant] had brown spots over his body. The doctor recommended that they attend a hospital to undergo tests. [Mr A] was so angry that the applicant took [the second applicant] to the doctor without permissions that he threw boiling water over the applicant. She sustained burns to her lower body and still has scars.
·On one occasion [Mr A] passed out from drinking. The applicant used his phone to call the number she was given at the women’s centre. She spoke with a man who she believed was named [Mr F]. He agreed to help.
·Some months later, [Mr F] arrived in a black car while [Mr A] was out. The applicant travelled with him to Istanbul. [Mr F] arranged for passports and travel documents for the applicant and [the second applicant] to travel to Australia to be with her sister. The applicant was unsure how the man accessed her sister’s details or arranged the travel documents. She hypothesised that he obtained her personal details from the women’s centre.
·The applicant flew to Australia on the same day she arrived in Istanbul. She arrived in Melbourne [in] July 2016 and her sister collected her from the airport. [Mrs C] did not explain how the applicant was able to travel to Australia.
·The applicant did not give her sister details about her experience but did tell her that she was afraid to return to Turkey. She stayed with [Mrs C] for two to three months. [Mrs C]’s husband did not want them to stay longer. [Mrs C] and her husband return to visit Turkey on occasion. The applicant felt that perhaps he was concerned that [Mr A] would discover that she stayed with them.
·The applicant had no personal involvement in arranging her travel to Australia. She maintained that [Mr A] would never have provided consent for her and [the second applicant] to travel. She guessed that perhaps he would have signed the necessary documents in exchange for money.
·Moving to another part of Turkey would be impossible. The applicant is afraid or her safety in all areas of the country. [Mr A]'s family are in Istanbul, the applicant’s brothers are in Izmir and her father is in Tokat Province. [Mr A] was last known to be in Edirne Province.
Interview with the delegate
On 9 October 2018, the applicant participated in an interview with the delegate. A recording of the interview was provided to the Tribunal. In addition to the evidence already outlined, the following information was discussed.
·The applicant visited a women’s refuge with a neighbour in Izmir. She could not remember the name or address of the refuge.
·The applicant said she provided the refuge with an old photo of her face, taken when she was about 19. She filled in a lot of forms, told them all about her family and other personal information. She showed her ID and marriage certificate.
·A photocopy of the application was provided to the applicant by the refuge. Her husband discovered it and became angry.
·The applicant met a man named [Mr F] at the refuge. She called him a year and a half later and begged for help. He asked if the applicant had any friends or relatives abroad and the applicant told him about her sister. [Mr F] agreed to help the applicant but gave no information about how he would help. He never called again before he arrived one day to take the applicant to Istanbul between three to five months later. He arrived in a black car with another woman.
·When the delegate asked how [Mr F] would know that the applicant’s husband was away from the home. The applicant guessed he may have paid her husband because her husband would do anything for money.
·The delegate noted that the photo on the applicant’s passport looked more recent than the photo she described as having provided to the refuge. The applicant did not know when the photo was taken. The applicant claimed that she never signed the passport or passport forms. She said she never provided money to anyone for assistance with the passport or visa. The applicant was unsure how she was able to take [the second applicant] out of Turkey without his father’s approval.
·The applicant gave evidence that [Mr A] would also beat [the second applicant].
·The applicant became very upset when she was asked about what would happen if she returned to Turkey.
·The delegate discussed a number of details provided with the applicant’s visitor visa application. First, she discussed a statutory declaration signed by the applicant’s sister [Mrs C]. Several statements within the declaration were inconsistent with the applicant’s evidence at the interview and in her application. For example, [Mrs C] said that she approached [Mr A] to ask if the applicant could visit Australia and he agreed. She also said the applicant was happily married and her husband worked in [occupation].
·The applicant said she only found out about the declaration of her sister when she arrived in Australia. She hypothesised that her sister fabricated the information in order to save her.
·The marriage certificate provided with the visitor visa application said that the applicant’s marriage took place in her hometown, not Istanbul. In addition, the certificate appears to be signed by the applicant’s father. The applicant was unsure why those details were on the marriage certificate and said they were untrue.
·There was also a passport sized photo of the applicant provided with the visitor visa application. It appears to be the same as the photo in the applicant’s passport. The photo was sworn to be a true image of the applicant by the applicant’s sister [Ms B].
·The officer that approved the visitor visa made a note that they spoke with the applicant over the telephone. The applicant refuted that claim and again confirmed that she had no telephone.
·The delegate showed a photo to the applicant and asked her to identify who was in the photo. She identified her mother, father and older sister [Ms B]. She was unsure who the other people in the photo were and noted that her parents looked very different. She acknowledged that one person in the photo looked like her but maintained that it was not her. The person that looked like the applicant was wearing glasses and the applicant confirmed that she had been prescribed glasses due to poor eyesight.
·The delegate told the applicant that she obtained the photo from Facebook and believed the photo to include the applicant’s mother, father, two brothers, two sisters and the applicant. The delegate further noted that she assumed the photo to be from a recent trip to Turkey made by [Mrs C].
Post-interview submissions

On 6 November 2018, the applicant’s representative made further submissions. The submissions summarised the claims put forward to date and the lack of available protection in Turkey. In addition to the information above, the submissions outlined that the applicant suffers from mental illness and was prescribed antidepressant and antipsychotic medications. The applicant had attended monthly psychologist appointments since March 2017. It was contended that the applicant’s mental health is a particular vulnerability that should be considered in terms of her demeanour and ability to give evidence in addition to the impact on her claims for protection. In addition to the applicant’s mental health concerns, [the second applicant] had received a diagnosis of [Medical Condition 1].
In addition to experiencing mental health issues, the applicant was diagnosed with Hepatitis C. It was contended that the diagnosis should be considered as highly persuasive evidence that the applicant has experienced past harm. The applicant hypothesised that her husband injected her with drugs when she was unconscious.
The applicant supplied a psychology report dated 1 October 2018, prepared by registered Clinical Psychologist, [Ms G]. [Ms G] holds a Bachelor of Science and a Masters of Psychology. The report outlined that the applicant had attended monthly sessions since March 2017, noting that Medicare allowed ten sessions per year. The applicant was diagnosed with Major Depressive Disorder, Posttraumatic Stress Disorder and symptoms of psychosis. [Ms G] noted that the applicant had been assessed by a Psychiatrist at [a named] Mental Health Service and was prescribed antidepressant and antipsychotic medication.
A support letter dated 26 September 2018, issued by Family Support Worker [Ms H] of [Organisation 1] Victoria, was also provided with the submissions. [Ms H] outlined that:
·the applicant requested support from [Organisation 1] in 2017 and 2018 due to financial difficulty. In September 2018, [Ms H] started working with the applicant to address housing affordability. [Organisation 1] could not assist the applicant with rent payments at that time, however covered the applicant’s utility bills, purchased her a mobile phone, and provided some food assistance.
·At the time the letter was written, the applicant had been seeing a psychologist to address her Post-Traumatic Stress Disorder, Anxiety and Depression, for which the applicant indicated she was taking a variety of medications, although she was not always able to afford these.
·[the second applicant] was diagnosed with [Medical Condition 1] and attended Royal Children’s Hospital in Melbourne to monitor the progression of the disease. [Ms H] was advised that there is no cure nor treatment available for [the second applicant]’s case, and that he received ongoing psychological support from the hospital.
·due to the applicant’s ongoing financial distress, mental health and worries for [the second applicant]’s health, her mental health appeared to be deteriorating. [Ms H] also stated that the applicant and her son could not afford food or medication and faced the possibility of homelessness, which would in turn result in further deterioration of the applicant’s mental health and decline of [the second applicant]’s condition, which could lead to his death.
The submissions of 6 November 2018 highlighted that the applicant’s evidence that she was sent away from the women’s shelter to wait rather than provided with immediate emergency accommodation was consistent with country information.[1]
[1] United Kingdom: Home Office, Country Information and Guidance - Turkey: Women fearing gender-based violence, February 2016, Version 1.0, available at: United States Department of State, 2016 Report on International Religious Freedom - Turkey, 15 August 2017, available at:
The applicant’s representative alleged that they contacted [Mrs C] by telephone on 25 October 2018 and in-person on 1 November 2018 to obtain further information about the applicant’s visitor visa application. [The applicant] was not present when these conversations took place due to a strained relationship between [the applicant] and [Mrs C]’s husband. It was alleged that [Mrs C] advised the representative that:
·She had no contact with the applicant during her visit to Turkey in 2015.
·The women in the photograph with a likeness to the applicant is in fact their cousin, [Ms I].
·She received a phone call from a man who told her that he had met the applicant at a women’s refuge. He stated that [the applicant] was in a bad situation and that her husband had been selling her. He stated that he was helping [the applicant] get an Australian Visitor visa and wanted her assistance. This man made the arrangements, and [Mrs C] followed his instructions, including picking [the applicant] up from the airport.
·She is prescribed medication for mental health issues arising from her self-described ‘extremely difficult life’, including her own history of family violence in Turkey. [Mrs C]’s medication, including sleeping medication, affects her memory. She suffers from anxiety and is easily stressed.
·All the women in their family have been victims of abuse. Their mother is unable to walk properly due to injuries inflicted by their father.
The representative commented on the presence of [Ms B] in the family photo. It was noted that the applicant stated that she believed [Ms B] was in hiding, not that she knew this for sure. The representative submitted that the mere fact that [Ms B] is smiling in a photo whilst sitting next to her sister cannot reasonably lead to a conclusion that [Ms B] had not suffered family violence. Further, it was contended that there was insufficient evidence to conclude that the woman with a likeness to the applicant was in fact the applicant.
In relation to information submitted with the applicant’s visitor visa application, the following comments were made:
·The applicant maintained that she was married in Istanbul and her parents were not present. She was unable to explain why the marriage certificate lists the place of marriage as [Town 2] as she firmly instructed that she was married in Istanbul and her family members were not present.
·The applicant maintained that she was not contacted by the delegate over the phone in relation to her visitor visa. She did not have a phone at that time. The representative hypothesised that the agent in Turkey fielded phone calls relating to the application.
·In respect of the title deed, the applicant had no knowledge of her husband owning property and was unable to comment on whether the document was genuine or not. She was not aware of her husband owning property jointly with his family, but knows her husband has a drug and gambling habit and is inclined to do anything for money.
Decision of the delegate
The delegate did not consider the applicant’s account of her departure from Turkey was plausible and made an adverse inference in respect of her credibility as a witness. Further, the delegate did not accept the applicant’s claims to have been excommunicated from her family or to be the victim of sexual and physical abuse. In particular, it was noted that much of the applicant’s evidence was inconsistent with information provided earlier in support of her visitor visa application. The delegate accepted that the applicants were Alevi but did not consider that they would face a real risk or chance of serious or significant harm.
Application for merits review
The applicant applied for merits review of the delegate’s decision on 22 February 2019. The representative declined to provide a copy of the delegate’s decision.
On 21 September 2022, the Tribunal wrote to the applicant to request any new evidence and/or updated medical reports. The applicant was invited to make submissions in relation to any special hearing arrangements which may be appropriate in the context of her mental health. The applicant was asked to provide the information by 5 October 2022.
On 4 October 2022, the applicant’s representative requested additional time to provide a substantive response and accompanying evidence. On 5 October 2022, the representative provided comment on the appropriate hearing arrangements. The email advised that both applicant felt comfortable to attend the hearing in person and provide evidence to the Tribunal. It was requested that evidence by taken from [the applicant] without the presence of [the second applicant]. It was submitted that the applicant is a vulnerable person as defined by the Administrative Appeals Tribunal Guidelines on Vulnerable Persons (‘the Guidelines’) due to the past physical and psychological abuse and trauma that she experienced and her mental illness. It was suggested that the strategies provided in the Guidelines would assist [the applicant] at the hearing.
It was also submitted that [the second applicant] is a vulnerable person as defined by the Guidelines on Vulnerable Persons due to his age and the Tribunal was requested to take into consideration the strategies for assisting children in the Guidelines.
On 7 October 2022, the Tribunal confirmed that the hearing would be conducted by female Members. In addition, the applicant was advised that the Tribunal would schedule the hearing in early December 2022 in order to allow sufficient time for the submissions referenced in the representative’s email to be finalised prior to the hearing.
The letter noted that [the second applicant] had been nominated to attend the hearing and give evidence. The Tribunal requested a witness statement or an outline of evidence be provided for [the second applicant] prior to the hearing.
Pre-hearing submissions
On 30 November 2022, the Tribunal received pre-hearing submissions, accompanied by statutory declarations made by [the second applicant] and [Mrs C], a psychological report by [Ms G] in respect of the applicant and a letter from [Mrs C]’s General Practitioner.
The representative’s written submissions contained the following information.
·The applicant fears that, if she returned to Turkey, she would suffer serious harm from her ex-husband and his family, her own father and brother, members of the community and members of the Turkish authorities due to her Alevi religion and her membership of a particular social group, namely: women in Turkey; Alevi women in Turkey; single mothers in Turkey; victims of domestic violence in Turkey; and/or women who brought dishonour to their family in Turkey; and/or women suffering mental illness in Turkey.
·The applicant’s son [the second applicant] is at risk of persecution due to his Alevi religion and his membership of a particular social group, namely: children who have suffered family violence in Turkey.
·If forced to return to Turkey, the applicant’s current mental health symptoms would deteriorate. She would be in constant fear that her ex-husband would find her. The applicant would be unable to continue her required mental health treatment, she would be unable to maintain work due to her deteriorating mental health and become destitute and homeless with her son, resulting in further deterioration of her mental conditions.
·The applicant’s ability to subsist in Turkey would be undermined by economic hardship or denial of access or capacity to earn a living due to her status as an Alevi, separated single mother, who has been victim of family violence and who suffers from a mental health condition.
·The representative alternatively submitted that the applicant is owed complimentary protection due to the serious nature of her mental health: because of her profile, she would be discriminated against and denied the ongoing mental health treatment with medical expertise she requires, resulting in significant mental harm.
·The applicant and her son would have no family support in Turkey, as the applicant has not had any contact with her family since 2017; her father is still angry at her for disobeying him.
·The applicant would be unable to access adequate state protection in Turkey.
·Any proposed relocation would not be reasonable in the applicant’s circumstances, because she would be unable to access support services and would be subject to discrimination as a single mother without familial support who left her husband.
·The applicant’s credibility was addressed in the context of her current mental health and past trauma experienced. The representative drew attention to the variable nature of memory and the impact of trauma on memory processing in relation to past events; as such, the applicant’s trauma, mental health and status as a victim of family violence should be taken into account when assessing her credibility. The representative also made reference to the applicant’s distressed state at her Departmental Protection Interview in 2018.
·The representative indicated that the applicant is at risk of serious harm in Turkey in the form of harassment or threats due to her Alevi religion, as Alevis are discriminated against and attacked according to country information.
·Single women face discrimination and lack of support particularly when escaping from family violence, while single mothers are subject to societal stigma. Women’s domestic violence shelters in Turkey are insufficient and ineffective in providing protection, often resulting in further violence. Turkish law is ineffective against family violence.
In his statutory declaration, made on 29 November 2022, [the second applicant] expressed a fear of his father and his father’s family. He outlined that he was seven or eight years old when he left Turkey, and as such cannot remember many details of his time there.
[The second applicant] recalled that his father was often angry and drunk and that he would beat his mother. Sometimes he would sit outside while his father was abusive because he was scared. [The second applicant] said that his father used to lock his mother in her room. His father’s family was abusive towards him and his mother. The declaration states that [the second applicant] never met his mother’s family while he was in Turkey. [The second applicant] expressed his happiness with life in Australia.
In her statutory declaration of 26 November 2022, [Mrs C] outlined that the men in her family had been abusive towards the women. She said her mother is still beaten by her father, her sister [Ms B] was stabbed by her husband and she was sexually abused by her brother as a child.
[Mrs C] outlined that when the applicant left [Town 1] and eloped with her husband, she was already living in Australia. She did not speak with [the applicant] until she came to Australia. [Mrs C] said that she received a phonecall from a man who said he was from a women’s refuge in Turkey. The man told [Mrs C] that her sister was not well and they wanted to send her to Australia. [Mrs C] knew that life was hard for women in Turkey and thought it would be good for her sister to stay with her for a while. She thought that her sister would visit Australia temporarily, but she was unaware of her circumstances in Turkey at that time.
[Mrs C] recalled giving her personal information and documents to the man that called and signing a paper saying that [the applicant] would visit Australia as a tourist. She did not write in English at that time, and assumed the statutory declaration was prepared by another person.
The applicants stayed with [Mrs C] for a while, but her husband was uncomfortable with what the Turkish community would think. Eventually [the applicant] opened up to her sister about what happened in Turkey.
[Mrs C] stated that she believed the family photo located by the Department was taken during one of her visits to Turkey. She identified the woman in the photo as her cousin [Ms I], who had a resemblance to the applicant. [Mrs C] noted that [Ms I] died because she was sick and was not taken to the doctor.
Finally, [Mrs C] expressed the opinion that the applicants could not return to Turkey because the applicant’s husband would locate them, and her father would not accept them. She noted that the police would not provide protection.
The applicant supplied an updated psychological report dated 10 October 2022, prepared by [Ms G]. The report outlines that the applicant was referred for psychological therapy by her General Practitioner on 16 March 2017. [Ms G] provided some background on the applicant’s circumstances as reported by the applicant. The report provided a diagnosis of posttraumatic stress disorder, major depressive disorder, severe anxious distress with mood congruent psychotic features. [Ms G] noted that the applicant is on both antidepressant and antipsychotic medication. The applicant was undertaking cognitive behavioural therapy to assist with the symptoms.
[Ms G] expressed the opinion that the applicant’s emotional distress is consistent with a person with her reported history. Further, she felt that a return to Turkey would have a negative impact on the applicant’s psychological health. It was noted that the applicant would be unable to work and would likely have limited to no social functioning.
A letter dated 11 November 2022 from Dr [J] of [named] Medical Clinic was supplied in respect of [Mrs C]. The letter states that [Mrs C] suffers from lethargy, poor concentration and poor memory. A prescription issued for [Mrs C] for [medication] was also provided. I understand this to be a prescription for low-dose tricyclic antidepressants.
Following consideration of the pre-hearing submissions, I determined that a hearing was no longer necessary for the reasons outlined below.
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.

In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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
After consideration of the applicant’s evidence presented to the Department and before the Tribunal, I accept that the applicant was the victim of sexual and physical violence perpetrated by her ex-husband and others. I accept that past trauma experienced by the applicant has led her to suffer significant mental health issues. I accept that the second named applicant is the child of the first applicant and her ex-husband.
I accept that [Mr A] is a citizen and resident of Turkey. I further accept that the applicant does not have a positive relationship with her relatives that remain in Turkey and would be unable to seek protection with them.
The applicant submitted compelling medical evidence, which supported her claim to have suffered sexual and physical violence in the past. The applicant was motivated to depart Turkey in order to escape this violence. I accept that she would be face a real chance of harm from her ex-husband and his family if she returned to Turkey. Further, I accept that the applicant would face a real chance of serious harm if she was denied access to treatment and medication for her mental health. Given the extensive violence described by the applicant, I consider that her son would also be at risk of harm if he were exposed to the violence or placed into the care of his father.
Having found that the applicants face a real chance of serious harm from the primary applicant’s former husband and his family, I have considered whether the harm they fear is for the essential and significant reason of their race, religion, political opinion, nationality or membership of a particular social group for the purposes of s.5J(1).
While I accept that the applicant’s primary fear relates to harm from her former husband and his family, I have carefully considered the personal circumstances of the applicant and the relevant country information, which indicates that levels of discrimination and violence against women remain high and that domestic abuse is said to be widely tolerated by the state. The situation is exacerbated for the applicant by difficulties faced by single women with children and as a result of her poor mental health.
The Department of Home Affairs and Trade (DFAT) reports that gender-based violence is widespread in Turkey. Domestic violence is not specifically criminalised, and courts often hand down lenient judgements to perpetrators of sexual violence. The number of domestic violence shelters is insufficient to meet demand, and they are not well located.
While healthcare in Turkey is generally accessible and high quality, this is not always true for mental health services. Community mental health centres are under funded and the number of psychiatrists and other mental health professionals per capita is well below European Union averages and patients must pay directly for their treatment. DFAT reports that there is tension between mental health professionals and officers of the Moral Support Service Unit operated by the Directorate of Religious Affairs (Diyanet) who work across the health system. In February 2019, the Mental Health Professionals Platform released a statement saying the Diyanet staff operating in mental health settings lacked the appropriate scientific background, had caused harm and had gone beyond professional boundaries.[2]
[2] Department of Foreign Affairs and Trade, Country Information Report Turkey, 10 September 2020.
In light of the country information, I find that the applicant would be selectively and discriminatorily denied state protection from harm by the Turkish authorities for reasons of her membership of a particular social group, being women who seek protection from family violence and victims of family violence with mental health issues. As a minor in his mother’s care, I consider that [the second applicant] would be similarly at risk as a potential victim of family violence and as a child in the care of a victim of family violence. On the available evidence, I consider that effective protection measures would not be available to the applicants in any area of Turkey.
I note that I had some concerns in respect of the credibility of the applicants’ evidence in relation to how her travel to Australia was arranged. Nevertheless, the attributes listed above have been accepted and it is not necessary to make findings of fact in respect of the remaining claims.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Sheridan Lee
Member

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

[2022] AATA 5153

6 December 2022

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