1906500 (Refugee)

[2024] AATA 2574

1906500 (Refugee) [2024] AATA 2574 (4 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sai Priya Sivalohan

CASE NUMBER:  1906500

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Tania Flood

DATE:4 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 04 March 2024 at 3:22pm

CATCHWORDS

REFUGEE – Protection Visa – Turkey – religion – Catholic – conversion from Islam to Christianity – applicant’s observations about Christianity appeared generalised – applicant has provided a confused and inconsistent account of his journey toward Christianity – Tribunal finds he is not a genuine Christian – tattoos and piercings – applicant has not yet completed his military service – political opinion – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Turkey, applied for the visa on 27 March 2017. The visa was refused on the basis that the delegate was not satisfied there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Turkey.  

3. The applicant appeared before the Tribunal on 1 February 2024 and 29 February 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Turkey now or in the reasonably foreseeable future for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey there is a real risk that he will suffer significant harm.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Application for a Protection visa

13. Information contained in the application for a Protection visa indicates the applicant is a [age]-old Turkish citizen from Izmir.  He stated his religion is Catholic.  His parents and one brother reside in Turkey but he has no contact with them.  From [date] August 2011 to [date] August 2011 and[date] September 2012 to [date] September 2012 he toured various European countries with a [group]. 

14. In an undated statement attached to the application for the Protection visa the applicant states the following:

    -During his travels throughout Europe he was exposed to Christianity and found his values to be aligned with that faith.  Upon return to Turkey he found himself moving closer towards Christianity. 

    -He encountered many struggles as a Christian in Turkey.  During religion classes he was beaten for refusing to pray or read in Arabic.  His parents are very religious people and were furious with him for failing his classes and he was also beaten at home. 

    -News of his religious views travelled fast in his small town and he was scared to leave home as he was beaten.  Once he was beaten by two soldiers with batons.  After this his mother decided to send him to a Christian country.

    -Further, he is a pacifist and opposed to military service.  If he refuses to do military service he will face court.  He also fears being harmed by soldiers who will consider him a traitor.  

15. Documents provided to the Department in support of his application include:

    -A letter from [Mr A] and [Ms B] dated 25 February 2019 providing a personal reference for the applicant.  They state that they have interacted with his parents in Turkey; that his parents made the difficult decision to send him to Australia because of his non-Muslim views; that he is a very spiritual person but has no affiliation with organised religion despite exploring Christianity with their family in Perth.

    -A translated letter from the applicant’s mother, [name].  She states that because he did not meet the requirements of his religion he was ostracised by his friends and beaten and he became withdrawn.  For this reason she saved and borrowed money to send her son to Australia where he could be safe.

    Supporting information provided to the Tribunal

16. In a statement provided to the Tribunal the applicant expands on his claims in respect of his conversion from Islam to Christianity.  He repeats his testimony about being exposed to Christianity during his trips to Europe and how this caused him to distance himself from Islam resulting in problems at school and among his peers. 

17. He states that in around October 2012 his father reacted angrily to the latest complaint from his school over his differing perspectives on religion.  His father beat him and this was repeated many times thereafter because he would hear news from his friends and his school.  Violence and bullying from his peers and older children was also a frequent occurrence.   He stopped leaving the classroom for lunch and took the back roads home.

18. He experienced profound isolation between 2011 and 2013.  He was constantly called words like “gavur” (heretic) and “dinsiz” (Godless) leading him to feel depressed and anxious. 

19. One of the most unforgettable experiences occurred during the second semester of school in 2011.  He owned a cross necklace which was wooden and beaded.  Two off-duty soldiers noticed it and they got into a verbal clash.  His was punched and kicked but managed to run home.  Later he had to get stitches on his ear without his father noticing.  He had to go to the town doctors house where he was treated at his front door. 

20. His mother supported him to come to Australia and assisted him financially without his father’s knowledge.  When his father found about it he was accepting because he doesn’t want him to return to Turkey.  Deep down he thinks his father wants him to be safe. 

21. Not only does the prospect of serving in the military conflict with his moral stance, but being enlisted would also subject him to heightened risks of persecution and potentially life-threatening discrimination due to his Christian faith and his appearance.  Evasion of military service will result in incarceration and further expose him to punitive measures and maltreatment due to his religious orientation and appearance. 

22. Nowadays there is a worrying trend suggesting a shift towards even more conservative and religiously influenced governance in Turkey.  This trend undermines the notion of secularism.

23. The first few years attending church in Australia gave him some peace even though he couldn’t speak or understand.  He attended church when he could in various areas around Perth.  The church he has most attended [is Church 1].  He now attends the church every weekend, mostly on Saturdays and whenever he can on Sundays with his current partner who is a Catholic like him.  He previously lived in Canberra with his ex-partner and he visited different churches there too. 

24. The applicant’s representative provided a written submission on behalf of the applicant which is dated 24 January 2024.  It is submitted that the applicant has a well-founded fear of persecution in Turkey including physical beatings, verbal abuse, bullying and punishment from soldiers and members of the community on the basis of his religion as he is a practising Christian who converted from Islam to Christianity. 

25. It is further submitted that Christians in Turkey are not regarded as full members of the community which results in them having less access to state employment and experiencing discrimination in private employment.  Turkish ID cards record religious affiliation which results in discrimination of people practising the Christian faith.  Consequently, there has been a decline of Christians in Turkey from 20 per cent to 0.2 per cent of the population.  It is submitted that the applicant fled Turkey almost eleven years ago and since that time the situation for Christians has further deteriorated with re-entry bans applied and expulsion of Christians from Turkey.  Reference is made to attached news articles.

26. It is also submitted that if the applicant is forced to return to Turkey he will be required to complete mandatory military service which would make him the subject of persecution and discrimination due to his Christian faith. 

27. In support of his claims the following additional documents are attached:

    -Press release – Christian banned from Turkiye brings case before European Court of Human Rights.

    -Article – For a Christian in Europe, Turkey is the worst country.

    -Article – Human rights experts denounce Turkey’s crackdown on Christians

    -Copy of the applicant’s passport.

    -Letter from Father [C] dated 20 January 2024.

    -Statement from [Mr A] and [Ms B] dated 21 January 2024.

    -Statement from [a named person].

    Tribunal hearings

28. The Tribunal used the opportunity of a hearing held on 1 February 2024 to discuss at length with the applicant his background, his claimed past harm in Turkey and the reasons why he believes he will face serious harm on return to Turkey.  The relevant aspects of his oral testimony are outlined in the below findings and reasons.

29. The Tribunal invited the applicant to attend a second hearing on 29 February 2024 to clarify certain particulars of his claims and the relevant aspects of the oral testimony he provided on that occasion are also discussed below. 

30. Country Information

    Religion

31. The DFAT Country Information Report on Turkiye (September 2020) states, in part, the following:

    Contemporary politics in Turkey has been dominated by Recep Tayyip Erdogan, who has been President since 2014 after serving as Prime Minister from 2003. Erdogan, who comes from an Islamist political background, is the co-founder of the conservative Justice and Development Party (AKP), which has been in government since 2002. Under Erdogan’s early leadership, the AKP pursued liberal economic and socially conservative policies, and, following a now stalled application for membership of the European Union, shifted foreign policy priorities away from Europe and towards the Middle East and Asia.

    The Constitution contains extensive guarantees of fundamental human rights, including freedom of expression, association, movement, opinion, assembly and religion. Many constitutional rights are subject to exceptions on the grounds of public order and national security.

    Article 2 of the Constitution defines Turkey as a secular state. Article 10 states all individuals are equal before the law regardless of their philosophical belief, religion, or sect; Article 15 states no one may be compelled to reveal his or her religion; and Article 24 guarantees the right to freedom of conscience, religious belief and conviction. The state has traditionally interpreted secularism to require state control over religious communities, including their practices and houses of worship. The Diyanet manages the practice of Islam while the General Directorate for Foundations (Vakiflar) manages all other religions.

    The government does not maintain population statistics based on religious identity. Observers concur, however, that the overwhelming majority of Turkish citizens are Muslim, with most (75-80 per cent) being Sunni. There are 10-25 million people who identify as Alevi in Turkey, which the Turkish Government largely refuses to differentiate from Sunni Muslims. There is also a Shi’a Ja’fari community that claims membership of up to 4 per cent of the population, or around 3 million people, although numbers are difficult to verify. They live predominantly in the eastern provinces. Up to 500,000 Alawites reportedly live in the southern regions neighbouring Syria, particularly Hatay province (this number does not include Syrian Alawite refugees who have fled to Turkey since 2011).

    Turkey’s non-Muslim religious communities are small.  There are fewer than 150,000 Christians across various denominations, the largest of which are Armenian and Greek Orthodox, Syriac Christians, Jehovah’s Witnesses and Protestants.

    The Treaty of Lausanne (1923), which formalised the break-up of the Ottoman Empire and laid the foundation for modern Turkey, guarantees the rights of ‘non-Muslim minorities’. The government has traditionally interpreted this phrase as referring solely to the three major religious minorities in Turkey at the time, which were the Armenian Apostolic Orthodox Christians, Jews and Greek Orthodox Christians (the ‘Lausanne minorities’). The Lausanne minorities, whose populations have all decreased significantly through emigration since 1923, reside primarily in Istanbul and other major urban centres in western Turkey.

    DFAT is aware of only isolated incidents of violence against members of Lausanne minority communities or properties.  In May 2019 an 86-year-old Greek Orthodox man was murdered in his home, and in November 2019, a South Korean Christian missionary was stabbed to death – both incidents attributed to religious activities.  In Istanbul in the same year, an Armenian woman was stabbed at her front door after receiving months of threats associated with her religious beliefs, and in Izmir a Molotov cocktail was thrown at the Beth Israel Synagogue.  Community representatives have also expressed concern about negative speech in the state media and from senior members of the government – particularly anti-Semitism – which tends to peak at times of heightened tension between Turkey and Greece, Armenia or Israel.

    No official restriction prevents members of Lausanne minorities (or other religious minorities) gaining public sector employment or promotion: Article 70 of the Constitution specifically states that every Turk has the right to enter public service, and no criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service. Nonetheless, some non-Muslims claim to have been denied government employment for not including a religious identity or for listing an identity other than Muslim on employment applications. Community representatives have commented it is rare to see religious minority members in senior government roles.

32. Conversion to Christianity is not prohibited by Turkish law.[1] Although converts from Islam can legally change their religious affiliation on their identity cards to Christianity, a December 2019 report has described this as ‘a difficult and stressful process’. Furthermore, unless converts have changed the religious affiliation on their cards, any children will automatically be registered as Sunni Muslims.[2]  The same report also suggests that the act of converting to Christianity from Islam could be seen as ‘insulting Turkishness’ which in turn could result in court cases and imprisonment.  It should be noted, however, that no recent reports have been located which refer to any court action of this nature being taken against Christian converts in Turkey.  However, a May 2020 report referred to Christian converts being targeted with accusations of ‘a variety of malpractices’, particularly in relation to the American Pastor Andrew Brunson, who was arrested in October 2016 and accused of plotting to overthrow the Turkish Government.[3]  The aforementioned December 2019 report also stated that Christian converts, particularly those who are church leaders in the southeast of Turkey or in rural areas, are sometimes given disrespectful treatment by the police and security forces because of their open Christian identity.[4]

    [1] ‘Turkey: Country Dossier’, Open Doors, December 2019; ‘Turkey – World Watch Monitor’, World Watch Monitor, nd.

    [2] ‘Turkey: Country Dossier’, Open Doors, December 2019

    [3] ‘General Briefing: Turkey’, Christian Solidarity Worldwide, 1 May 2020

    [4] ‘Turkey: Country Dossier’, Open Doors, December 2019

33. It has been reported however, that the primary source of adverse treatment towards Christian converts in Turkey comes from family, friends and community.[5]  This treatment can include rejection by their family, social shunning, pressure to return to Islam, loss of employment, and threats.[6]  In addition, it has been reported that Christian converts may also be subject to pressure at their workplaces[7] or from the local authorities,[8] and experience difficulties organising a Christian wedding or burial.[9]  Conversion to Christianity, however, rarely results in violence.[10]  The level and nature of adverse treatment from family can also vary considerably depending on the background of the family, although it has been reported that conversion to Christianity is widely considered unacceptable in Turkey.[11]  Information has also been located which indicates that some Christian converts, particularly those of a Muslim background, hide their conversions in order to avoid family and community pressure.[12]

    [5] ‘World Watch List 2020’, Open Doors, 15 January 2020

    [6] Turkey: Country Dossier’, Open Doors, December 2019; International Religious Freedom Report for 2019 – Turkey, US Department of State, 10 June 2020; ‘World Watch List 2020’, Open Doors, 15 January 2020

    [7] International Religious Freedom Report for 2019 – Turkey, US Department of State, 10 June 2020

    [8] Turkey: Country Dossier’, Open Doors, December 2019

    [9] Turkey: Country Dossier’, Open Doors, December 2019

    [10] Turkey – Middle East Concern’, Middle East Concern nd (accessed 30 October 2020)

    [11] Turkey: Country Dossier’, Open Doors, December 2019

    [12] Turkey: Country Dossier’, Open Doors, December 2019

1. A May 2020 Christian Solidarity Worldwide report[13] also stated that Alevi Muslims, Bahai’s and Christians, particularly those who have converted from Islam, face daily societal pressures.  Hate speech and occasional hate crimes targeting religious minorities have continued, including attacks on places of worship, with perpetrators generally enjoying impunity.  There has been a surge in the expression of anti-Christian sentiments in pro-government media, and there are increasing reports of incidents of bullying and intimidation against Christian students in schools.  Educational books can fuel societal hostility against, and distrust of, religious minorities.

   [13] General Briefing: Turkey’, Christian Solidarity Worldwide, 1 May 2020

2. According to the 2022 Report on International Religious Freedom: Turkey (Turkiye)[14] 99 per cent of the population of Turkey is Muslim.  Non-Muslim religious groups are mostly concentrated in Istanbul and other large cities, as well as in the southeast.   Exact figures are not available but it is estimated that there are approximately 25,000 Roman Catholics in Turkey.  The report states that the government issues chip-enabled identity cards that contain no visible identification of religious affiliation.  The information on religious affiliation is recorded in the chip and remains visible to authorized public officials as “qualified personal data” and protected as private information.

   [14] 2022 Report on International Religious Freedom: Turkey (Turkiye), US Department of State

3. While the above report indicates that religious freedom conditions in Turkey are poor, on 31 July 2018, pro-government newspaper Daily Sabah reported that leaders of non-Muslim communities including several Christian groups, had signed a joint declaration stating they were free to follow their faith in Turkey.[15]  This was also reported by the secular Hurriyet Daily News.[16]  The Daily Sabah article provides the following:

   The declaration sought to address allegations against the Turkish government that people of minority religions – including Orthodox Christianity, Syriac Christianity, Judaism and others – had been persecuted or hindered from worship and free expression of their faith.

   “As religious representatives and directors of different faiths and beliefs who have been residing in our country for centuries, we live out our faiths freely and practice our worship freely according to our traditions”, the statement said.

   They added that they are “constantly in consultations” with state institution in mutual goodwill to find solutions to issues faced by the minority communities.

   [15] Turkey’s minority leaders sign joint declaration denying ‘pressure’ on communities, Daily Sabah, 31 July 2018

   [16] ‘Erdogan vows freedom of thought from now on’, Hurriyet Daily News, 6 August 2018

4. In February 2018, President Erdogan met with Pope Frances of the Roman Catholic Church at the Vatican in Rome.  It was the first time a Turkish President had travelled to the Vatican to meet with the Pope in 59 years.[17]

   Military Service

   [17] ‘Rome bans protests as Pope meets Turkish President Erdogan’, Catholic Herald, 5 February 2018

5. According to DFATs most recent report[18] Article 72 of the Constitution states national service is the right and duty of every Turk. Males are required to register at age 20 for service that commences once they turn 21. University students can defer their service until they have completed their studies. Males aged 20-41 are eligible for conscription and must undertake military service of six months. New laws introduced in June 2019 allow conscripts after one month of military training, the ability to buy-out the remaining five months for a fee of 31,000 Turkish lira. This applies only to those called up after the introduction of the new law. Those already considered draft evaders are not eligible for the new law and buy-out scheme. Authorities maintain a sophisticated national database of military service, making evasion for an extended period almost impossible. Any interaction with authorities, such as being stopped for a traffic infringement, can lead to a cross-check of an individual’s military service record. In addition, the barcode in biometric passports is linked to the national database, meaning authorities can identify draft evaders on their return to Turkey. The government does not recognise the right to conscientious objection to military service on any basis. Those who do not present for registration at a military recruitment branch are issued a fine, and fines continue to be issued for the period authorities consider an individual has evaded conscription. Fines increase in value as the number of years of avoidance increases. While the law allows for imprisonment as punishment for avoiding military service, DFAT understands it is not used in practice. Non-payment of fines in Turkey can, in theory, result in asset seizures and withholding of salary and pensions. In practice, there are a very large number of conscription evaders and the state lacks capacity to follow-up on most cases. Prison is not used as a penalty for unpaid fines in Turkey. DFAT assesses that conscientious objectors and draft evaders are likely to face a degree of harassment from authorities for unpaid fines and may have restricted access to a wide range of social benefits and civil rights, which may include the ability to leave the country.

   [18] DFAT Country Information Report, Turkey, 10 September 2020

6. In 2019 Turkey passed a law (amendment 7179 to the Law on Military Service (EBCO 14 February 2020) that reduced the length of compulsory military service (for private and non-commissioned soldiers) from twelve to six months.[19]

   [19] Research Directorate, Immigration and Refugee Board of Canada, Turkey: Military Service, both compulsory and voluntary, including requirements, length, alternatives and exemptions, consequences of draft evasion and conscientious objection (2018-November 2020).

7. The 2020 Report on International Religious Freedom: Turkey (Turkiye) states that military service is obligatory for males and there is no provision for conscientious objection.  A government policy allows individuals to pay a fee of 80,064 Turkish lira ($4,300) instead of performing full military service, however, they are required to complete a three-week basic training program.  Those who oppose mandatory military service on religious grounds may face charges in military and civilian courts and, if convicted, could be subject to prison sentences ranging from two months to two years. [20]

   [20] 2022 Report on International Religious Freedom: Turkey (Turkiye), US Department of State

8. The UK Home Office reports that the Turkish Armed Forces is one of the world’s largest militaries, boasting a total strength of approximately 355,000 active personnel and 380,000 reserves and it is estimated that 1.4 million Turkish citizens reach military age annually.   Military service is compulsory for Turkish males between the ages of 20 and 41 for a period of 6-12 months.  Conscripts are given 1 month of military training and are then deployed into service and further training.  Non-commissioned officers and privates undertaking their compulsory military service are not deployed to counter-terrorism operations or conflict zones unless ‘gravely required’, due to the size of the Turkish Armed Forces and the number of professional soldiers already in service.   After completing 1 month of basic training, conscripts have the option to ‘buy out’ from the last 5 months of compulsory military service at a cost of 122,351 Turkish lira as of July 2023.  This is known as ‘paid military service’.  Those who have started their military service, those who have been assigned evader status and those who are draft evaders and in hiding cannot take this option.  The report also references a response to an OSCE security questionnaire of August 2021 in which the Turkish delegation reported “There are ….special arrangements for citizens working abroad.  More than 5 million Turkish Citizens live in [sic] abroad.  In order to help them protect their rights and status in the countries they live in, a special arrangement is in effect since 1980, which allows them to complete their obligatory military service by paying a compensation fee.  The pre-condition to benefit from this right is minimum 3 years of ongoing employment, either as an employee or employer in a foreign country”.  The report quotes President Erdogan, speaking to press after a Cabinet Meeting on 23 may 2022 as saying there were approximately 550 thousand draft evaders and late joiners in Turkey.[21]

   [21] Country policy and information note:  military service, Turkey, October 2023, UK Home Office.

9. According to the Netherlands Ministry of Foreign Affairs[22], if a person has not responded to the general call-up for registration and screening for military service, the military authorities send a call-up to the address of the person concerned stating that he is regarded as a conscription evader and must still report to the military authorities to complete the relevant procedures.   There is no information available about the authorities’ thinking on whether or not to continue actively pursuing the policy of investigation and prosecution.  However, it can be deduced from the high number of conscription evaders and deserters that the police and gendarmerie probably lack the capacity to constantly and actively search for every individual deserter and conscription evader.

   [22] Netherlands Ministry of Foreign Affairs, Thematic Country of Origin Information Report, Turkey: Military Service, July 2019

10. The above report states that the Turkish authorities generally have access to the personal data of those subject to conscription.  The details of those who evade military service can therefore be recorded in the national police information system.  Once the information is in the system, there is a greater chance of it being discovered.  If a person is stopped by the police or gendarmerie during which it is found that he is subject to conscription, he will be handed a statement which he must sign indicating that he has fifteen days to report to the military registration office.  The report notes that Article 89 of the Law on Military Service was amended in 2014.  Following this amendment, the penalty for conscription evasion was reduced to a fine.  There are different rates of fines for those who voluntary come forward and those arrested by the police.  There are no known recent examples of criminal conviction of a conscription evader.  There are also no known cases in which after being arrested a conscription evader was immediately drafted and transferred to barracks. The report goes on to state that there are no known cases of conscription evasion or desertion being penalised more severely because of race, religion, nationality, membership of a particular social group or political opinion.  However, there are known cases of discrimination against conscripts on active service, for example because of their ethnic background or sexual preferences.

11. The above report also states, according to media reports, some conscripts have undergone severe bullying, physical abuse and torture, sometimes resulting in suicide.  Turkish media reported in 2012 and 2013 on the large number of suicides within the Turkish armed forces.  In March 2015, the Turkish Minister for National Defence instructed a military academy to investigate this.  As a preventative measure, the Turkish government assigned each soldier a ’buddy’ to help deal with any problems.  Recent figures on the numbers of suicides within the Turkish armed forces are not available. 

12. An earlier report from 2001[23] states that harassment and discrimination by fellow soldiers or non-commissioned officers occur, depending in particular on the local commander.  However, it is not possible to say that any single group suffers systematic discrimination.  According to Turkish human rights organisations and former officers, most of the problems occur as a result of conflicts among soldiers.  On Christians, the report states that apart from occasional harassment, which depends entirely on fellow soldiers and the commander, Christian conscripts in the army encounter no discrimination.  Forced circumcision of Christians have not occurred for some years now.

    FINDINGS AND REASONS

    [23] Directorate for Movements of Persons, Migration and Consular Affairs, Asylum and Migration Division, Turkey/Military service, July 2001

    Country of reference

13. The applicant produced his Republic of Turkey passport when he appeared before the Tribunal which verifies his claimed identity and nationality.  Based on this documentation, and in the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Turkey.

    Religious beliefs

14. The applicant claims he no longer has any affinity with Islam and he has long embraced Christianity as he considers the faith is more closely aligned with his personal beliefs and values. He states that since his arrival in Australia he has been frequenting churches in Canberra and Perth, including a Catholic church in [Suburb 1], Perth, albeit irregularly in the early years of his residency in Australia.  He said he has now been regularly attending the [Suburb 1] church for the past six months.  He said he has not been baptised. 

15. For the reasons which follow the Tribunal is not persuaded that the applicant has an enduring or genuine interest in Christianity.

16. At the outset, during the first hearing the applicant repeated his earlier written testimony that his interest in Christianity arose during his trips to various European [countries].  He said he visited some Cathedrals during those trips but only for tourism purposes.  He confirmed he did not speak with any Christian clergy on those occasions.  However, he said he observed how people appeared to be living freely and he appreciated being treated with respect and that his individuality was valued.  The Tribunal found his testimony regarding the important question of the development of his interest in Christianity in his teenage years to be somewhat vague and more aligned with notions of liberalism than any religious beliefs. 

17. In an attempt to better understand his grasp of Christianity, the Tribunal asked the applicant during the first hearing to name the next significant event in the Catholic calendar and he correctly stated it is Easter.  However, when asked to explain the significance of Easter he first stated incorrectly that it is the celebration of Jesus birth.  When the Tribunal questioned the accuracy of his response he then simply said it is when Jesus was reborn.  When asked during the second hearing to explain the meaning of baptism he provided only a brief response stating that it is a blessing and an official entry to Christianity.  In further questioning he said that he believes the Christian faith allows more freedom and encourages treating others with respect so as to also be treated that way in the end.  He said he also appreciates that the religion allows respect for women and is not judgemental. 

18. While the Tribunal does not expect a layperson to be able to quote at length Christian doctrine the resurrection of Jesus Christ is of great significance to Christians as is the sacrament of baptism.   The Tribunal expects if the applicant has been engaging with Christianity for many years and considering conversion to Christianity he would be well aware of the relevance of these issues, particularly baptism.  The Tribunal found his knowledge about these important aspects of the faith to be minimal and his other observations about Christianity also appeared generalised, lacking in detail and did not demonstrate more than a cursory understanding of important components of the faith.

19. Also of concern to the Tribunal is that the Department’s decision record, which is before the Tribunal for the purpose of this review, indicates that he claimed during his protection visa interview that he does not follow any organised religion, had not converted to Christianity and that his claims about the Christian religion were outdated and immaterial.   When discussing this with the applicant during the first hearing he responded that since that time he has explored the faith more and he again took a decision to resume his engagement with Christianity.  During the second hearing the applicant was asked again about his changed views toward Christianity since his arrival in Australia and he somewhat surprisingly maintained he was still a Christian at the time of his protection visa interview but had taken the decision to practice his beliefs in a different way.  He said that since then he has entered into a new relationship and through his girlfriend and her friends he now understands the beauty of the church community.  He said that he was a bit confused about his beliefs at the time of the protection visa interview but since then he has learned more about Christianity and now he is regularly attending church and is committed to the faith.  

20. On review of the evidence, the Tribunal considers his remarks during the first hearing were more aligned with the claims he made during the protection visa interview, namely that he had ceased to be interested in Christianity at that time.  The letter provided to the Department from [Mr A] and [Ms B] dated 25 February 2019 also states that he was not affiliated with any organised religion at that time.   His testimony during the second hearing, which is that he was still a Christian at the time of the protection visa interview, is not in the Tribunal’s view consistent with his earlier evidence.  The Tribunal remains of the view that the applicant has provided a confused and inconsistent account of his journey toward Christianity over time and is of the opinion this raises concerns about the genuineness of his interest in the faith.  

21. Moreover, the Tribunal finds it particularly significant that despite his long-claimed interest in Catholicism the applicant has not taken the important sacrament of baptism.  When discussing this with him during both hearings he said that the delay has to do with his previously under-developed English language skills and his need to earn a living in Australia.  He added during the second hearing that until recently he did not speak to anybody about it but now his new girlfriend is recommending that he be baptised.  He confirmed that he has never discussed baptism with a priest. 

22. The Tribunal has considered the applicant’s responses in respect of this important issue and accepts that initially he had limited English skills.  However, his protection visa interview held in February 2019, some five years ago, was conducted in English.  While the Tribunal accepts it was necessary for him to work to support himself it does not accept that these are valid reasons for failing to be baptised or even speaking to his priest about pursuing baptism.  If the applicant were genuinely interested in converting to Christianity as he claims the Tribunal considers he would have taken a more active interest in pursuing the sacrament of baptism.

23. Notwithstanding the above the evidence provided supports that the applicant has been attending Catholic church services.  During both hearings the applicant confirmed that his usual practice is to attend church services on a Saturday.  During the second hearing he said that it has only been in the last six months that he has attended church regularly.  The Tribunal put it to the applicant that Father [C] indicated in his letter dated 20 January 2024 that he has been regularly attending church services for six years on a Sunday.  He replied that he also wondered why Father [C] had mistakenly described his church attendance this way.  He noted that he attended the church in [Suburb 1] irregularly some years back and Father [C] has known him since then.  He said that this may be why he wrote that he has been attending church regularly for six years.  He confirmed he mostly attends church on a Saturday but noted he also attends Sunday services on occasion and Father [C] could have been confused because of this.  He also pointed out that Father [C]’s English is not all that good.  The Tribunal accepts the applicant attended some church services in the past but based on his oral testimony, the Tribunal considers the letter from Father [C] is a misrepresentation of the facts and finds he has only been attending church regularly for six months.     

1. The Tribunal notes the letters of support from the parents of the applicant’s ex-partner also provide some support for his claimed interest in Christianity and church attendance.  The letters indicate he spoke regularly with the very religious grandparents of his ex-partner about God and Christianity and also attended some Church of Christ gatherings [with] them. 

2. Despite his long-claimed interest in Christianity, the applicant has in the Tribunal’s view demonstrated only a very generalised understanding of the fundamentals of Christianity and it has concluded he has not advanced far in furthering any interest he may have had in Christianity.  Furthermore, he has not been baptised or even spoken to his priest about this important step in the eleven years he has been exploring Christianity in Australia.  The Tribunal accepts the applicant has a small faint tattoo of [a symbol] on his hand but in light of the concerns expressed herein it does not consider this to be proof positive of a genuine interest in Christianity. 

3. Having carefully considered the available evidence the Tribunal does not accept, irrespective of his early research into Christianity and his more recent church attendance, that the applicant has or is considering conversion to Catholicism.  The Tribunal finds he is not a genuine Christian.  The Tribunal does not accept the applicant will attend Catholic or other Christian church services and/or pursue conversion to Christianity if he is required to return to Turkey. 

   Past harm for religious reasons

4. When asked about the religious views he expressed after his return from his travels in Europe the applicant gave only a brief account stating things such as questioning the need to learn and recite Islamic prayers in Arabic and voicing critical views about the strictness of Islamic teachings.  Relevantly, he conceded that he did not know much about Christianity at that time.   Having considered his testimony the Tribunal is prepared to accept that he was moving away from Islam and had rejected the requirement to observe the Islamic faith in his later teenage years.  However the Tribunal is not satisfied that he was publicly proclaiming an interest in Christianity and/or that he was a Christian.  The Tribunal does not accept he would have been perceived to be a Christian at that time.  At best the Tribunal is of the view he was an outspoken teenager questioning the requirements of the Islamic faith.

5. When asked during the first hearing about the claimed past harm he experienced in Turkey on account of his religious views he said that he was beaten by his father and experienced ostracism, bullying, name calling and physical assaults from his peers.  He also said that when expressing his views in religious class at school he upset his teacher and was physically smacked on occasion.  It was only after several probing questions and only when ultimately directed to his written evidence that he repeated his written claim of being badly beaten by two soldiers for carrying a necklace with a cross and beads which he obtained on his travels.    He stated that when the soldiers saw his necklace and asked him about it he replied that he was a Christian and believed in Jesus.  He said that an argument followed and when he talked back to the soldiers they hit him. 

6. The Tribunal is prepared to accept he may have expressed some views during his school years which raised some concerns about his allegiance to the Islamic faith.  The Tribunal accepts these views may not have been well received by his peers and his teachers.  The Tribunal accepts he may have been subject to some isolation, bullying and name calling for this reason and that complaints may have been made to his parents about his behaviour.  The Tribunal is also prepared to accept he may have been subjected to some minor physical punishment at school and may have been shunned and antagonised into some physical fights with his school peers on occasion.  The Tribunal also accepts he may have been physically punished by his father on occasion for this reason.  The Tribunal accepts these events were likely upsetting and had a negative impact on his emotional well-being and his relationship with his father. 

7. However, the Tribunal does not accept he was badly beaten by two Turkish soldiers following a brazen argument with them about Christianity. As noted above, the applicant conceded that he knew little about Christianity at that time and despite being asked several times during the first hearing if he had experienced any further incidents of harm in Turkey it was only after he was prompted by the Tribunal that he mentioned an assault by two soldiers requiring medical attention.  During the second hearing the Tribunal also put it to him that his testimony during his protection visa interview presents a different account of what occurred, namely, that the two soldiers set upon him and chased him for no reason on the day in question and when they caught him they beat him and he suffered an injury to his leg which his mother took care of at home.   In response the applicant stated that both versions of his testimony are true.  He stated his leg was injured and that he did require stitches to his ear.  He claimed it was not a static event and that he was chased by the soldiers in the course of the incident.  He added that the event happened a long time ago and he realised after the protection visa interview that he should have provided more detail about what occurred and this accounts for the additional detail provided in his further evidence. 

8. The Tribunal has considered the applicant’s responses but is not persuaded he was a Christian or had any strong Christian convictions at that time.  Further, the Tribunal is not persuaded that his very brief knowledge of Christianity at that time would have motivated him to speak so boldly to soldiers including declaring himself a believer in Jesus Christ as is claimed.  When this was discussed with him during the hearing he said he was just a kid at the time and didn’t realise the seriousness of the situation.   The Tribunal finds some merit in his response but remains unconvinced that he would have addressed soldiers in this manner given his very limited knowledge of Christianity at the time.  The Tribunal accepts the claimed event occurred approximately twelve years ago and that his recollection of the finer details of what happened could be affected by the passage of time.   The Tribunal also accepts he may have felt the need to provide additional detail after the protection visa interview to better explain his claim.  However, the Tribunal does consider this explains why he first stated that the soldiers attacked him for no reason whereas he now maintains it is because he had Christian wooden beads in his hands.  Moreover, the Tribunal is of the view the applicant would not have failed to mention such a serious event when first asked about the past harm he had suffered if it had indeed occurred.   

9. The Tribunal has had regard to the letter of support provided by the applicant’s mother which provides some support for the claimed beatings he received in Turkey.  As noted above the Tribunal accepts he was beaten by peers and his father in the past.  The letter provides no support however, for the claimed assault by two soldiers.  Rather her letter indicates the applicant’s problems were due to him not meeting the requirements of his religion.

10. The Tribunal notes that the letters of support provided by the applicant’s ex-partner’s family members refer to him experiencing harm from the police and being targeted by the authorities for his non-Muslim views.   During the hearing the applicant made no reference to being targeted by the authorities or subjected to violence from police officers.  Whilst it could be inferred that the reference to violence from police has some relevance to the claimed assault by the two soldiers the Tribunal notes and finds it significant that the author’s awareness of what happened to the applicant in Turkey is based on the applicant’s own account of events and does not come from any first-hand knowledge of what occurred.  The Tribunal considers the information provided in these letters does not overcome the Tribunal’s concerns in respect of the claimed attack by soldiers.  The letter of support from the applicant’s ex-partner is of a purely personal nature attesting to his good character and values.

    Future harm on religious grounds

11. The applicant has claimed that if he returns to Turkey he will face serious harm from religiously conservative Muslims and/or Islamic extremists and/or his family on account of him being a Christian.  As noted above the Tribunal does not accept the applicant is a genuine Christian or will pursue conversion to Christianity or attend a Christian church if he returns to Turkey.  Therefore the Tribunal has not further considered the country information provided in submissions regarding the claimed discrimination against Christians and the claimed worsening treatment of Christians in Turkey.   The Tribunal has concluded that there is not a real chance the applicant will suffer serious harm in Turkey for reason of him being a Christian.  Further, the Tribunal does not consider the small faint tattoo of [a symbol] on his hand will mean that he will suffer serious harm for reason of him being perceived to be a Christian. 

12. The Tribunal is satisfied that the applicant no longer identifies with the Islamic faith and accepts he will not observe Islamic religious practices if he returns to Turkey.  The Tribunal accepts the applicant’s family members are Muslims.  Despite his written claims, according to his oral testimony only his mother observes religious prayers; his father and brother do not and he conceded during the hearing that his father is not a strict Muslim.  Despite this, the Tribunal accepts the applicant’s father abused him physically in the past for failing to behave like a good Muslim. 

13. At hearing the applicant did not claim to fear future physical harm from his family members and nor did his evidence indicate that this will occur.   He merely indicated that he would be shunned by his family.  Relevantly, during the hearing he conceded that he is now an adult  and can choose to live independently of his parents.   While he endured some physical harm from his father while living under his roof as a minor there is no suggestion from the available evidence that his father would seek him out to physically harm him under changed circumstances. 

14. The Tribunal accepts, based on his testimony, that the applicant does not like his father and may not have spoken to him directly for several years.   During the hearing he stated that he has infrequent contact with his mother but he mainly put this down to her possibly having lost hope of him ever returning to Turkey.  He said the only occasion on which he speaks to his brother is if he happens to be around when he is talking to his mother.  He said on those occasions his father might also acknowledge his presence by waving but he does not speak to him.  While not without some doubts, the Tribunal is prepared to accept that the applicant may not be warmly welcomed back into the family fold if he returns to Turkey because of his differing views about Islam and non-observance of Islamic religious rites.  While the applicant may experience some isolation from his father and possibly his brother the Tribunal is not satisfied that such treatment, were it to occur, amounts to serious or significant harm.  In any event, the Tribunal considers this isolation will be mitigated by at least some contact with his mother.

15. While the Tribunal accepts the applicant suffered some physical assaults from his peers as an outspoken schoolboy in the past the Tribunal is not persuaded that his behaviour on return to Turkey as an adult would invoke the same treatment.  During the first hearing he acknowledged he behaved like a stubborn child in the past and wasn’t afraid of being beaten for voicing his religious opinions.  However, he testified that he is an adult now and is intent on seeking a peaceful life. The Tribunal is satisfied that he will not advertise his views about Islam in a disrespectful or provocative manner likely to invite conflict if he returns to Turkey.   The Tribunal has found that the applicant is not a genuine Christian and is also satisfied he will not speak openly about Christianity in Turkey. 

16. Furthermore, as discussed with the applicant during the hearing, available country information does not satisfy the Tribunal that the applicant’s religious views will attract any adverse attention if he returns to Turkey now. Relevantly, if he returns to Turkey the applicant conceded he would resettle in Izmir, a city which he conceded is known for its liberalism. Despite that the country information indicates that contemporary politics in Turkey has long been dominated by Recep Tayyip Erdogan, who comes from an Islamist political background, and is the co-founder of the conservative Justice and Development Party (AKP), which has been in government since 2002, the Tribunal is not persuaded that Turkey’s secularist tradition is currently under threat as a result of conservatist leanings as has been argued. Based on available information the Tribunal is satisfied that Turkey remains firmly a secular state with Constitutional rights to religious freedom which are generally observed. As outlined above, Article 2 of the Constitution defines Turkey as a secular state. Article 10 states all individuals are equal before the law regardless of their philosophical belief, religion, or sect; Article 15 states no one may be compelled to reveal his or her religion; and Article 24 guarantees the right to freedom of conscience, religious belief and conviction. The information before the Tribunal does not indicate that there is a real chance the applicant will be forced to adopt strict Muslim practices or will be seriously harmed for reason of being a non-practicing Muslim if he is required to return to Turkey.

17. Having carefully considered the claims and evidence the Tribunal is satisfied that there is not a real chance or a real risk the applicant will suffer serious or significant harm from the state, security forces, his family, community members or Islamic extremists if he returns to Turkey now or in the reasonably foreseeable future for reason of his religious beliefs.

    The applicant’s appearance

18. The Tribunal notes the applicant testified orally during the first hearing that he has always felt he does not belong in Turkey and has always felt different to other Turkish people.  He pointed out that he has tattoos, including a small faint tattoo of [a symbol] on his hand and body piercings.  He said he doesn’t look like a decent Turkish man and will be targeted for this reason.  During the second hearing he was asked whether any of his other tattoos are controversial and he agreed that they do not have religious connotations.  However, he said that some of his tattoos feature female body parts and when asked to explain this further he said they depict the female face.  He added that a swear word also features and some Muslims might not like these tattoos. 

19. While the Tribunal accepts that having a tattoo and/or piercings may not be well regarded by certain elements of society there is no evidence before the Tribunal to suggest that there are any serious consequences or punishments for persons who exercise a personal preference for such adornments in contemporary Turkey, particularly in the liberal city of Izmir, despite it being a Muslim dominated country and tattoos being forbidden under Islamic law.   The Tribunal finds the chance the applicant will suffer serious or significant harm for reason of his tattoos and piercings in Turkey is remote.

    Military Service

20. During the first hearing the applicant advised that he left Turkey prior to the age of conscription and the evidence supports this.  He advised that to the best of his knowledge no attempts have been made to locate him in Turkey, either by mail or in person, to register for military service.  He also advised that no questions were asked about his compliance with military service when he renewed his passport in Australia. 

21. The Tribunal accepts on the available evidence that the applicant has not yet completed his military service.   The Tribunal is satisfied, based on the country information outlined herein, that the applicant will be liable for military service if he returns to Turkey.  In the absence of a call-up from the army to date and as there was no barrier to him obtaining a new passport in Australia it would appear that he has not yet been recorded as a draft evader.  However, if the applicant returns to Turkey and does not present and register for military service the Tribunal is satisfied that there is a chance which is not remote that his failure to do so will be detected at some point and he will be identified as a draft evader. The country information sources consulted by the Tribunal indicate that the Turkish authorities maintain a sophisticated national database of military service, making evasion for an extended period almost impossible.  Any interaction with authorities, such as being stopped for a traffic infringement, can lead to a cross-check of an individual’s military service record.  In addition, the barcode in biometric passports is linked to the national database, meaning authorities can identify draft evaders on their return to Turkey. 

22. The country information referenced above indicates that the law provides an ability to buy-out of military service and this was discussed with the applicant at hearing.  In a post-hearing submission received by the Tribunal on 6 February 2024 information from DFAT’s most recent country information report is quoted and it is argued that this provision does not apply to the applicant as he would be considered a draft evader.  The Tribunal accepts this possibility based on the country information outlined above.  The Tribunal also notes that there are reportedly special arrangements for citizens living and working abroad but in order to benefit from these arrangements a person must have held a work permit for a minimum of three years in a foreign country.  The Tribunal also accepts this provision does not apply to the applicant.  There is also no suggestion or information to support that the applicant would qualify for an exemption from military service as a University student or on medical grounds or otherwise. 

23. During both hearings the applicant stated categorically that he will refuse to complete military service if he is required to return to Turkey.  In his written claims he states he is a pacifist and will refuse to complete military service on “moral” grounds.  During the first hearing the Tribunal sought further clarification from him about his objections to military service and he merely said that he just doesn’t want to give up the time to be trained to kill people.  He also said he has heard that conscripts can be subjected to harsh physical punishment and abuse.   The Tribunal discussed with the applicant during the second hearing a claim made during his protection visa interview which is that he fears being sent to war zone in the south-east of Turkey if conscripted.  The Tribunal noted that independent country information outlined above indicates that the chance of this happening is remote as recruits are not deployed to counter terrorism operations or conflict zones unless ‘gravely required’ due to the size of the Turkish Armed Forces and the numbers of professional soldiers already in service.  He gave anecdotal evidence that he is aware of first-born sons from the west being sent to the south- east to perform their military service where they experienced harsh conditions. 

24. The Tribunal has considered the applicant’s testimony and accepts that he has a strong preference not to perform military service and may be worried about harsh treatment in the military.   However, based on his testimony, the Tribunal is not satisfied based on his evidence that his reasons are based on any deeply held political or religious convictions or any other principles that form the basis of a conscientious objection to military service. 

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.

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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.

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