1909220 (Refugee)

1909220 (Refugee) [2024] AATA 2489 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kayhan Oncu (MARN: 1386541)
CASE NUMBER:  1909220
COUNTRY OF REFERENCE:                   Türkiye
MEMBER:Shahyar Roushan
DATE:8 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 April 2024 at 11:52am
CATCHWORDS
REFUGEE – protection visa – Turkey – membership of particular social groups – harassed by classmate and abducted and sexually assaulted by associates of his parents – threatened by perpetrators to withdraw complaint and beaten by father – fear of societal discrimination and violence or honour killing – separated but not divorced – new relationship and Australian citizen child – claims of harassment, assault and threats accepted – no harm after complaint withdrawn or during return visit and no recent threats – country information – possibility of some discrimination not serious or significant harm – further late claims about beating by other relative not accepted – passage of time – claims as single mother speculative and dependant on divorce and remarriage – physical and mental health – best interests of child – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 417
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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is a [Age]-year-old national of Türkiye. She first arrived in Australia [in] June 2011 as a Student visa holder (Class TU) (Subclass 573). [In] May 2012, she returned to Türkiye and re-entered Australia [in] June 2012.
On 21 September 2015, the applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa on the basis of her marriage to [Mr A]. She subsequently separated from [Mr A], and on 5 October 2017, her application for a Partner visa was refused.
On 6 July 2018, the applicant applied for a Protection visa, which was refused on 27 March 2019 by a delegate of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to her protection visa application, the applicant was born in [District], Ankara. Her parents are separated and reside in Türkiye. She resided in Ankara until 2006, and after spending a period in [City], she relocated to Istanbul, where she remained for approximately four years until her departure from Türkiye. She completed her secondary schooling in Istanbul and worked as a '[Occupation]' from May to October 2010.
The applicant made the following claims in a detailed Statutory Declaration attached to her application form and dated 25 April 2018.
In 2005, when she was [Age] years, she was subjected to persistent harassment by a classmate by the name of [Mr B]. Her mother’s complaint to the school eventually resulted in ‘reduced contact’ by [Mr B].
One day, she visited a café with a friend during school hours. This visit resulted in her being abducted, drugged, and sexually assaulted by acquaintances, including two men whom she later came to know were associated with [Mr B]'s parents.
The incident was reported to the police, and her case was listed before the court. However, she was continuously threatened by the perpetrators to withdraw her case. Her mother initially resisted this pressure but subsequently withdrew the case due to 'fear of reprisals' after all other family members, except her grandfather, turned their 'back on us'. A police officer also advised her mother to withdraw the case and relocate to a 'distant province'. When her father found out that she had been sexually assaulted, she was 'severely beaten', and he told her 'You have forced me to bow my head in public from shame. I wish you would just suffer and die'. In the meantime, a friend of her mother's, without anyone's knowledge, kidnapped [Mr B] 'in revenge and retaliation for the rape perpetrated on [her]', and she later found out that he had 'organised for [Mr B] to be raped'. After becoming aware of her friend's actions, the applicant's mother arranged for her to move to [City] to live with her grandfather. During her stay in [City], she was ‘under regular pressure and threats’ from family members for ‘bringing shame onto the family name'. Her grandfather had a stroke whilst trying to protect her, and for this reason, she moved to Istanbul with her mother.
[Mr B], however, found her in Istanbul, and she received 'constant threats' of revenge. She received envelopes pushed under her front door, containing her 'naked photographs and threatening written notes'. On several occasions, she noticed [Mr B] stalking her and sought assistance from bystanders. Also, she reported these incidents on two occasions to [police stations], but ‘the proof’ she submitted ‘was not deemed satisfactory’ as she could not link the photographs and the threats to [Mr B]. Nevertheless, the police noted her complaint and told her that ‘if anything substantially occurred in the future they would act upon it'. As the police could not protect her, she moved to another location in Istanbul, where she no longer received direct threats. However, fake [Social media] accounts were created in her name to befriend her friends and family, sharing inappropriate and 'degrading' information about her, including a description of her as an 'escort'. As a result of these posts, her employment with a [workplace] in Istanbul was terminated. She continues to receive ‘medical and psychological assistance', and she is certain that she would never feel safe in Türkiye and the authorities would not be able to protect her.
The Interview
The applicant attended an interview with the Department on 20 March 2019. Where relevant, the applicant’s oral evidence to the delegate is referred to in the Tribunal’s analysis below.
The delegate’s decision
Whilst the delegate accepted that the applicant was a victim of sexual assault in Türkiye, she did not accept that there was a real chance or a real risk that she would be subjected to serious or significant harm at the hands of [Mr B] or members of her extended family if she were to be removed to Türkiye. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there is a real risk of the applicant facing significant harm in Türkiye, as defined in s 36(2)(aa).
Review application
On 14 April 2019, the applicant applied for a review of the delegate’s decision. Mr Kayhan Oncu represented the applicant in relation to the review.
Pre-hearing submissions
On 7 March 2023, Mr Oncu submitted a copy of a birth certificate relating to the applicant's child, born in [Year], and several untranslated documents. English translations of these documents were submitted on 12 May 2023. The documents, which included letters from the applicant's former high school and the Office of Chief Prosecutor in Ankara, essentially corroborate the applicant's claims concerning the sexual assault, including the fact that the assault had been reported to the Turkish police in February 2006 by the applicant’s mother, who had subsequently withdrawn her complaint by providing a statement that her daughter was not abducted and was not a victim of sexual assault.
The documents also included a statement by the applicant's mother, [Ms C], corroborating her daughter's account of the sexual assault. [Ms C] stated that she had withdrawn her complaint to the police due to 'fear' and that they had subsequently taken refuge with [Ms C] 's elderly father. However, her ‘bigoted brothers tried to beat and kill [her] and [her] daughter in the name of honor’ (sic). As a result, they moved to Istanbul and ‘covered [their] tracks for a while,’ but ‘the drug gang soon came after us again.’ As she had no family support, she decided to send her daughter overseas to save her.
In a further submission in support of the application for review, dated 15 May 2023, Mr Oncu reiterated the applicant’s claims and referred to the relevant law and country information from various sources, including DFAT, US Department of State, Human Rights Watch, Amnesty International and the UN Population Fund, concerning honour killings, gender-based violence and the situation of women generally in Türkiye.
Mr Oncu contended that the applicant has a well-founded fear of being persecuted in Türkiye for the reason of her membership of the particular social group of ‘as women in Türkiye who have been the victims of rape and thereafter are subject to both societal discrimination and the potentially violent responses from family who deem the rape as bringing shame upon the extended family.’
It was submitted that the applicant's rape in 2005 placed her at risk of retribution by her family in the form of 'honour killing'. Mr Oncu referred to DFAT's 2020 Country Information Report in relation to Türkiye, which noted that honour killings have ‘plagued’ Türkiye for decades and that actions considered damaging can include extramarital sex, refusal of an arranged marriage, choosing one’s own spouse without family approval, becoming a victim of rape, same-sex sexual acts, or liberal behaviour and dress. He also referred to a 2005 UN Population Fund report, noting that rape is a significant issue of honour and that there is a difference between how a rape is treated in a city versus a small village. It was submitted that she has many relatives in her grandfather's village, and they had put 'constant pressure' on her following her rape. Subsequently, she lived 'anonymously in the city and moving between accommodation in hiding from her rapist who was stalking her in a threatening manner.’ She was also ‘hiding to a large degree from her wider family.’ Mr Oncu submitted that even if honour killing did not eventuate, ‘it is not difficult to imagine some lesser form of violence from family members as a possibility.’ Whilst the applicant’s move to the city had resolved the issue to some extent, her return ‘may reopen the issue and could result in a threatening and potentially violent outcome.’
Mr Oncu referred to the US Department of State’s 2022 Country Reports on Human Rights Practices and noted that gender-based violence, including domestic and intimate partner violence, remained a serious and widespread problem both in rural and urban areas and that ‘weak enforcement of laws’ ‘contributed to a climate of permissiveness for potential offenders’. He submitted that if the applicant were to be removed to Türkiye, she would not be able to hide from her family, and those who were responsible for her rape may also find out that she has returned and resume their ‘harassment and possible even go further.’
Mr Oncu concluded that the applicant would be perceived as a female who has lost her honour as a result of being raped and is at risk of harm from the man who raped her, as well as male members of her own family. She would also be the subject of 'gossip and innuendo, persecution, and discrimination at the very least' if she were to contact her previous friends and acquaintances upon returning to Türkiye.
The first hearing
The applicant appeared before the Tribunal on 17 May 2023 to give evidence and present arguments. In giving her evidence, she was assisted by an interpreter in Turkish and English. Mr Oncu also attended the hearing.
At the hearing, the applicant disclosed that she is currently in a de facto relationship with [Mr D], who is the father of her child. At the time of the hearing, [Mr D] was in criminal detention, having been charged with criminal offences. She further advised that divorce proceedings have not yet been initiated despite having separated from [Mr A] several years ago as she could not locate him. Where relevant, other aspects of the applicant's oral evidence at the first hearing are referred to in the Tribunal's analysis below.
In his oral submissions at the hearing, Mr Oncu made references to the applicant being at risk of harm in Türkiye due to her relationship status and the fact that she has a child with [Mr D] out of wedlock while still being officially married to [Mr A]. As these matters were raised for the first time towards the conclusion of the first hearing, Mr Oncu was asked to provide further written submissions regarding these claims.
Post Hearing Submissions
On 5 June 2023, the Tribunal received further submissions from Mr Oncu, addressing the issues he had raised in his concluding submissions at the first hearing. It was submitted that ‘the primary issue’ for the applicant is that she is not married to the father of her child, and she is still officially married to [Mr A]. In view of 'the conservative nature of Turkish society,' these circumstances are likely to result in 'significant discrimination and persecution' for the applicant.
Mr Oncu submitted that the applicant has a well-founded fear of persecution in Türkiye for the reason of her membership of the particular social group of women in Türkiye 'who have given birth to a child out of wedlock and women who have given birth to a child while married to another man'. Given the conservative nature of Turkish society, the applicant is likely to face significant discrimination and persecution. Women in these circumstances face ‘administrative obstacles,’ as well as ‘severe societal discrimination and persecution.’
Mr Oncu explained that the applicant gave birth to her child on [Date]. The father of her child is [Mr D], an Australian citizen to whom the applicant is not married. The applicant is still married to another man, but she cannot locate him to initiate a divorce.
Mr Oncu referred to two journal articles,[1] examining the situation of children born out of wedlock and challenges faced by single mothers in Türkiye, respectively. He submitted that the legal situation of these children is unclear 'because the law does not adequately provide for this scenario with the consequence that children may encounter legal difficulties due to their non-classification'. He noted that Türkiye employs a rigid system where children born in a marriage must take their father's surname, and children born out of wedlock must take their mother's surname. While the law addresses this situation, the remedy may be 'convoluted'. However, the passages from the first article quoted by Mr Oncu in his submission also indicated that the child could get her 'actual' father's surname if her mother marries him. Mr Oncu further noted that children born out of wedlock face stigmatisation as they 'contradict the traditional family model, which has always been idealised as a central component of Turkish society’s moral structure…’
[1] Ustek-Spilda, F and Alyanak, O, ‘The Case of Children Born out of Wedlock in Turkey: an Empty Category’ (2016) International Journal of Gender Studies 5(10) 261, 261-281, and Kavas, S & Hosgor, A G, ‘The Parenting Practice of Single Mothers in Turkey: Challenges and Strategies’ (2013) Women’s Studies International Forum, 40, 56-67, In addition to these two articles, Mr Oncu also submitted a September 2020 LSE Women, Peace and Security blog post by Gursimran Bakshi,, titled ‘Women with No Women’s Rights in Türkiye’,
Mr Oncu highlighted relevant passages for the second article, indicating that the challenges faced by single mothers in Türkiye include 'handling negative attitudes toward single mothers and toward children from single-mother families' and 'lack of social recognition', which 'makes it hard for them to integrate into the society'. He submitted that [Mr D] has no intention of leaving Australia and residing in Türkiye. Even if [Mr D] were to accompany the applicant back to Türkiye, this ‘would not materially alter the discrimination and persecution [the applicant] and her [child] could expect.’ He further contended that if the applicant was able to navigate the legal system, ‘normalising the situation does not change the underlying fact that [the applicant] has had a child out of wedlock while married to another man,’ resulting in her continuing to face ‘societal discrimination and persecution.’
Mr Oncu submitted that the applicant’s current circumstances, as well as the fact that she was a 'rape victim' in the past, must be viewed in Türkiye's conservative cultural context and the treatment of women in that country. These factors result in her being 'considered immoral, tainted, and promiscuous'. Concerning the treatment of women in Türkiye, Mr Oncu referred to news reports, as well as reports from Amnesty International and Human Rights Watch, noting that the withdrawal of Türkiye from the Istanbul Convention, highlighted by Amnesty International, has raised alarms about the increased risks to women and girls, with hundreds reported murdered annually. A 2022 Human Rights Watch report referred to the systemic failures in enforcing laws against domestic violence, particularly affecting unmarried and divorced women and a February 2023 article posted on the Turkish online news site Gercek News noted the issues faced by divorced single mothers, including having to shoulder all the 'financial and emotional' responsibilities of the child after divorce, being blamed for the divorce, facing social alienation and being harassed by men. Mr Oncu submitted that if the applicant were to return to Türkiye, she would face ‘extreme levels of discrimination and persecution,’ including official and social discrimination.
Mr Oncu also referred to article 3 of the Convention of the Rights of the Child and submitted that it is in the best interests of the child to remain in Australia with both parents.
The second hearing
After considering the issues raised in Mr Oncu’s submissions and conducting further research, the Tribunal invited the applicant to a further hearing on 13 December 2023 to provide further evidence and respond to issues. The applicant was assisted by an interpreter in the Turkish and English languages. Mr Oncu also attended the hearing. Where relevant, the applicant’s oral evidence at the second hearing is referred to in the Tribunal’s analysis below. He contended that ‘the family group do not feel the same level of community expectation to address the family’s loss of honour as she is no longer there.’
On 18 January 2024, Mr Oncu made a further submission to the Tribunal. In his submission, Mr Oncu referred to the applicant’s abduction and rape in 2005 and subsequent events. He submitted that 'the issue of the male family members feeling shamed by [the applicant's] rape is still far from resolved and potentially very dangerous. It was only [the applicant's] departure from Turkey to Australia that has put the matter in abeyance'. The applicant's mother has informed her that her father and other male relatives ‘still cannot accept the applicant after what happened.’ The applicant’s mother also told her that her father ‘cannot accept the applicant’s new [child] into the family given the shame the applicant has inflicted upon the family.’ If the applicant were to relocate to Türkiye with her [child], she could face ‘some form of violence from her male relatives', and it would not be ‘far-fetched’ to consider that this could happen as a result of ‘honour killing.’ Mr Oncu referred to DFAT’s 2020 Country Information Report in relation to Türkiye, which noted the reporting of 31 honour killings in Türkiye in 2020. DFAT also noted that actions considered damaging to honour can include ‘extramarital sex, refusal of an arranged marriage, choosing one’s own spouse without family approval, becoming a victim of rape, same-sex sexual acts…or liberal behaviour and dress.’ Mr Oncu further submitted that [Mr B] may also resume his harassment and stalking if he learns of the applicant’s return to Türkiye.

Mr Oncu submitted that even if violence does not eventuate, the applicant and her [child] would not be supported by her family for baby-sitting, financial assistance, and general help. In addition, the applicant would face ‘an extreme level of discrimination,’ as well as gossip, contempt, and derision by ‘those in her circle of acquaintances who are aware of her rape.’ She would face societal discrimination for being a single mother.
Mr Oncu submitted that the applicant’s child is also likely to face instability, poverty, and societal discrimination. It would not be in his best interests to remain in Australia to be raised by his father, and [Mr D] has not indicated whether he would be willing to raise the child alone. Mr Oncu noted that [Mr D] has been released on bail and ‘the circumstances surrounding this are not clear because [the applicant] is not comfortable talking about it.’
Mr Oncu requested Ministerial intervention on the basis of compassionate circumstances that, if not recognised, would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen child, as well as psychological harm and hardship to the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994. 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) of the Act. 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) of the Act, 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 of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons, and findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Sexual assault
The Tribunal accepted the applicant’s account of her experiences of harassment and unwanted romantic advances by a classmate named [Mr B] when she was [Age] years old and residing in Ankara. The Tribunal accepts that she was abducted, ‘drugged,’ and sexually assaulted by acquaintances, including two men who were associated with [Mr B]’s parents. The Tribunal also accepts the applicant's account of the events after the sexual assault, including her mother’s complaint to the police, withdrawal of that complaint following threats by the perpetrators, the violent retaliation against [Mr B] by her mother’s friend, being severely beaten by her father for the ‘shame’ she had caused, and being shamed, threatened and intimidated by other relatives when she resided with her grandfather in [City] in the months after the assault.
The Tribunal further accepts that the applicant subsequently relocated to Istanbul with her mother, where she resided for approximately four years before departing Türkiye for Australia. The Tribunal accepts that she was located and stalked by [Mr B] in Istanbul. [Mr B] also pushed threatening ‘written notes’ and non-consensual explicit images of the applicant under her door. The Tribunal accepts that the applicant moved to a different address in Istanbul, where she did not receive 'direct threats', but she was subjected to online harassment. This harassment included the creation of fake social media accounts in her name, [Mr B] befriending her online friends and relatives and sharing degrading information about her, which resulted in the termination of her short employment at a [workplace] in 2010.
The Tribunal accepts that these experiences were highly traumatic and distressful for the applicant. However, the Tribunal does not accept that the applicant’s sexual assault and the subsequent events give rise to a real chance of serious harm or a real risk of significant harm if she were to be removed to Türkiye.
At the first hearing, the applicant explained that she resided at two addresses in Istanbul. She resided at an apartment in [District 2] for approximately two years and subsequently moved to a nearby apartment in the same district. She also confirmed at the first hearing that [Mr B] was not directly involved and did not sexually assault her in Ankara. The applicant’s evidence suggests that the perpetrators of the assault had made threats following the incident to intimidate her mother into withdrawing her police complaint. These threats were successful in achieving their objective. The applicant, however, did not claim that those who were directly involved in abducting and assaulting her had contacted, pursued, threatened, or harmed her in any way following the withdrawal of the complaint and after she moved to Istanbul. Indeed, the applicant’s evidence to the Department and the Tribunal clearly suggested that [Mr B] was responsible for the threats and the harassment she was subjected to after she relocated to Istanbul.
At the first hearing, the applicant was asked who she believed would harm her if she were to return to Türkiye. She replied [Mr B]. When asked why, she responded that [Mr B] had tried to contact her on social media even after she came to Australia. He had told her he knew she was in Australia and that he could pursue her here. She also indicated that [Mr B] was angry because he had been raped in retaliation for what had happened to her. She was asked why [Mr B] did not go after those who had assaulted him. She said she did not know. [Mr B] had told her that he both loved her and hated her. He was following her mother and knew where she lived.
As it was put to the applicant at the first hearing, according to her own evidence, [Mr B] knew where she lived in Istanbul. Whilst initially he had stalked her and had pushed threatening notes under her door, he ‘did not touch her’ or harm her in any other way. In the two years before her departure from Türkiye, he harassed her online, but made no direct threats against her. Furthermore, according to her evidence at the first hearing, the applicant returned to Türkiye in May 2012 to visit her mother. She remained in Türkiye for approximately six weeks and stayed at the same address where she resided before she departed for Australia in June 2011. She did not claim that during this period she had encountered or had received any communication from [Mr B]. She stated that [Mr B] did not do anything because of the involvement of the police and the courts. However, the court proceedings, which were initiated in Ankara, had discontinued in 2005, and the police in Istanbul had not taken any action against [Mr B] as she could not 'link' [Mr B] to the initial threats, the photographs left at her house and the harassment. The Tribunal does not accept this as a satisfactory explanation for [Mr B] 's behaviour. The Tribunal is of the view that the online harassment the applicant was subjected to in the last two years before she departed Türkiye does not amount to serious harm or significant harm. The Tribunal finds that if [Mr B] had any intention to act on his previous threats or to seriously harm the applicant in Istanbul during the two years before she departed for Australia or the six weeks when she was visiting her mother in Istanbul, he had ample opportunity to do so.
The applicant’s evidence to the Department and the Tribunal suggests that [Mr B] had threatened and/or harassed her online after she came to Australia. This harassment was only confined to when the applicant had an online presence. At the interview, the applicant told the delegate that she no longer had a [Social media] account and that the last time [Mr B] had made online threats against her was two years before the interview. The delegate also put to the applicant at the interview that [Mr B] had taken no other action, such as approaching her mother in Türkiye. The applicant had responded that [Mr B] had threatened her mother previously and in connection with her court case. However, she did not claim at the interview or at the first hearing that [Mr B] had approached, harassed, or threatened her mother subsequently, despite her evidence that [Mr B] was following her mother and knew where she lived. At the first hearing, the applicant also stated that the last time she had heard from [Mr B] was four or five years ago.
For the above reasons, the Tribunal does not accept that there is a real chance that the applicant would face serious harm or a real risk that she would be subjected to significant harm by [Mr B] if she were to return to Istanbul. Given the passage of time and lack of any communication from [Mr B] in the past five years, the Tribunal does not accept that there is a real chance or a real risk that [Mr B] would resume stalking and/or harassing the applicant if she were to return to Türkiye. The Tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm by those directly involved in sexually assaulting her in 2005 if she were to be removed from Australia to Türkiye and resided in Istanbul.
In his submission of 18 January 2024, Mr Oncu contended that the applicant would ‘likely’ experience ‘contempt and derision’ by ‘those in her circle of acquaintances who are aware of her rape.’ The applicant has lived outside of Türkiye for the past 13 years. She has repeatedly claimed that she has no ties to Türkiye besides her mother, with whom she has intermittent contact. The Tribunal is prepared to accept that the applicant might face some discrimination in Türkiye in the form of negative attitudes, gossip, or ostracization if she were to resume contact with her past acquaintances or other family members. However, the Tribunal is not satisfied that this treatment amounts to serious harm under s 5J or significant harm, including degrading treatment or punishment as defined under s 5(1) of the Act. ’ Mr Oncu also submitted that more people could become aware of the incident in 2005, ‘this could lead to a situation where [the applicant] is considered a fair game for men who may aim to victimise her’ and she would be ‘characterised as promiscuous and immoral’. He provided no additional information or details in support of this contention. It is not clear what exactly is meant by ‘fair game’ and men aiming to ‘victimise’ the applicant. The Tribunal does not accept this belated claim, which it considers to be vague and highly speculative.
Honour killing
The Tribunal has accepted that soon after she was sexually assaulted in 2005, the applicant was severely beaten by her father. The Tribunal has also accepted that she was threatened and intimidated by other relatives when she resided with her grandfather in [City] in the months after the assault. At the second hearing, the applicant claimed for the first time that very soon after she was sexually assaulted, she was beaten by both her father and her uncle. Her grandfather had fired shots in the air to stop them and was subsequently arrested by the police. The Tribunal noted that she had never previously mentioned that her uncle was involved in beating her after she was sexually assaulted or that her grandfather was arrested. She responded that she had referred to these in her Statutory Declaration. However, these claims were not mentioned in her Statutory Declaration of 25 April 2018 or anywhere else. The Tribunal does not accept the claim that the applicant's uncle had physically assaulted her or that her grandfather was arrested as a consequence of attempting to stop her father and uncle from beating her.
At the first hearing, the applicant stated that she had problems with male members of her family following her relocation to Istanbul. They knew where she was, and there were ‘too many dramas.’ She said her uncles shunned her, and she felt isolated. She also told the Tribunal that her father was living in Istanbul, and she had come across this information when she was applying for her Student visa as she had to provide information about her family to the Australian authorities. She also claimed for the first time that she saw her father on one occasion in Istanbul, when he came to her first address. They had an argument, and he was verbally abusive, but he did not physically harm her. She stated that perhaps her mother might have disclosed their location to her father. When asked why she had never mentioned this incident previously, she said maybe she did not consider it too important at that time. The applicant confirmed that she never saw her father again. The applicant did not claim at any point throughout the process that she was subjected to any form of violence or any other serious harm by her father, her uncles or any other member of her family on any other occasion or that there was any attempt to subject her to such harm during the period she resided in Istanbul because she was considered ‘a stain on family honour’. As it was put to the applicant at that first hearing, it did not appear that any member of her family, including her father and uncles, had any intention of seriously harming her. The applicant responded that she does not speak to her relatives; her grandfather has passed away, and there is no one to protect her in Türkiye.
In his submission of 18 January 2024, Mr Oncu contended that the applicant has been informed by her mother that her father and other male relatives ‘still cannot accept’ her (the applicant) ‘after what happened’. The Tribunal accepts that this may be the case and the applicant is not ‘accepted’ by her father and other male relatives. The applicant’s evidence suggests that she has not communicated with her father since their encounter when she first moved to Istanbul, and she was isolated by other family members. The Tribunal does not accept that the isolation and stigmatisation experienced by the applicant in Türkiye amount to serious harm. The Tribunal does not accept Mr Oncu’s suggestion that the applicant ‘not being present in Turkey has meant other males within the family group do not feel the same level of community expectation to address the family’s loss of honour as she is no longer there.’ The applicant remained in Türkiye for six years following the incident in 2005. She was assaulted by her father once before moving to Istanbul with her mother. Her relatives, including her father and her uncles, were all able to locate her in Istanbul and yet they did not feel any compulsion to pursue her to meet any expectations ‘to address the family’s loss of honour’ or ‘loss of face in the community’ by inflicting any form of serious harm on her before she came to Australia. The Tribunal does not accept that the only reason the applicant has not been armed is because she is not physically present in Türkiye. The Tribunal does not accept Mr Oncu’s submission that the applicant’s return ‘may reopen the issue and could result in a threatening and potentially violent outcome.’ There has been a significant passage of time since the applicant was sexually assaulted in 2005. The Tribunal is of the view that the applicant’s father, uncles, and other males members of her family have no intention of seriously harming the applicant by killing her or subjecting her to any other form of serious harm in order to reclaim any perceived loss honour or for any other reason. The Tribunal does not accept that the applicant is at risk of retribution by her family in the form of ‘honour killing.’
Tribunal also rejects Mr Oncu’s submission that ‘the only feasible way the applicant could ‘lead a life’ in Turkey would be to do so anonymously, hiding.’ In her Statutory Declaration of April 2018, the applicant claimed that she lived 'anonymously in Istanbul, moving between accommodation in hiding from her ‘rapist’ and her ‘wider family.’ At the interview, the applicant also claimed that she and her mother were hiding from everyone in Istanbul. Nevertheless, the applicant’s evidence also indicates that she resided at each of her two addresses in Istanbul for approximately two years, she attended school, and she was employed for a short time in 2010. During the period of her stay in Istanbul she could not hide from [Mr B], her father and other family members, who were able to locate her and were aware of her whereabouts.
The Tribunal finds that the applicant would reside in Istanbul, where she resided for approximately four years before her departure, if removed to Türkiye. The Tribunal does not accept that there is a real chance that the applicant would face serious harm, including honour killing, physical violence or significant harassment or any other form of serious harm at the hands of her father, uncles, or other male relatives for being a victim of sexual assault if she were to return to Istanbul. The Tribunal does not accept that there is a real risk that the applicant would face significant harm at the hands of her father, uncles, or other male relatives if she were removed from Australia. Therefore, the Tribunal does not accept that the applicant would be compelled to live ‘anonymously’ in hiding in order to avoid facing serious or significant harm.
Being a ‘single mother’ of a child born out of wedlock
The Tribunal accepts that the applicant was previously married to [Mr A]. They subsequently separated, but they are not divorced. The Tribunal accepts that in 2016, the applicant entered into a relationship with [Mr D], and they had a child together in 2022. The applicant has claimed that, as a result of these circumstances, her child would be seen to have been born out of wedlock.

At the first hearing and in his post-hearing submissions, Mr Oncu contended that if the applicant were to return to Türkiye ‘as a single mother with a [child], she would encounter acute societal discrimination based on the fact that the child was born out of wedlock. She would also face discrimination and persecution given the fact she had this child while still married to another man.’
At the second hearing, the applicant confirmed that she had not initiated divorce proceedings because she could not locate [Mr A]. It was put to her that she could apply for a divorce by herself (sole application) under Australian law. The applicant stated that she was not aware that this course of action was open to her and that she would 'of course' initiate divorce proceedings. She also stated that she and [Mr D] intend to eventually marry and build a home together.
In his submissions, Mr Oncu contended that [Mr D] has ‘not indicated any desire to leave Australia and to live in Turkey.’ He has also ‘not indicated whether he is willing to raise [the child] alone, or not. The question has not arisen because his expectation is that [the applicant] will be looking after the child.’ The applicant stated at the second hearing that she cannot leave her child in Australia because [Mr D] may receive a custodial sentence of up to six months. In addition, there appears to have been no indication as to whether [Mr D] would consent to the child travelling with the applicant to Türkiye if she were to be removed from Australia.
In view of this evidence, the Tribunal considers the applicant’s claims of harm in Türkiye as a single mother of a child born out of wedlock to be highly speculative and contingent upon several undetermined and interrelated factors, including the finalisation of her divorce from [Mr A], which she indicated she was willing to pursue, her intention to marry [Mr D] and whether she would be able to travel to Türkiye with her child if removed from Australia. Nevertheless, the Tribunal has considered the hypothetical circumstances of the applicant should she return to Türkiye with her child in the reasonably foreseeable future.
As noted, the applicant has lived in Australia for the past 13 years and has no ties to anyone in Türkiye besides her mother, with whom she has irregular contact. While it is difficult to see how the applicant’s relationship status and the circumstances of the birth of her child would become widely known if she were to return to Istanbul, that possibility cannot be ruled out. The Tribunal accepts that Turkish society has a strong patriarchal culture, and women in Türkiye face strong social expectations about their behaviour and comportment.[2] The Tribunal further accepts that women who have children out of wedlock face certain challenges, largely due to the country's conservative values, as well as its patriarchal family structure and emphasis on the traditional family model, which consists of a mother, father, and children.[3] Having children out of wedlock ‘is shunned upon’, and mothers of children born out of wedlock could face negative attitudes, stigmatisation and marginalisation.[4] Mothers of children out of wedlock may also face some legal challenges, such as the inability to adopt the father’s surname for their child during the process of birth registration or to be considered eligible for child support or ‘the motherhood insurance premium’.[5] However, as it was put to the applicant at the second hearing, the Tribunal has found no information in the sources consulted, including in the sources referred to by Mr Oncu in his submissions, to suggest that women who have children out of wedlock, regardless of whether or not they were officially married to another man at the time of the birth of the child, face serious or significant harm in Türkiye. The Tribunal does not accept that facing negative attitudes and stigmatisation amounts to serious or significant harm. Nor does the Tribunal accept that the legal challenges faced by mothers of children born of wedlock in Türkiye amount to serious or significant harm.
[2] See, for example, Koç, G, Study of Femicide in Turkey: From 2010 to 2017, SAGE Open, July-September 2022: 1–20, DOI: 10.1177/21582440221119831 journals.sagepub.com/home/sgo; and Amnesty International, Turkey, Turn Words into Actions: Duty-Bound to end violence against women, 2021,
[3] Ustek-Spilda and Alyanak, n1, above.
[4] Ibid.
[5] Ibid.
In his submission of 18 January 2024, Mr Oncu stated that the applicant had been informed by her mother that her father ‘cannot accept [the applicant’s] new [child] into the family given the shame [the shame] has inflicted upon the family’. According to the applicant's evidence, she was estranged from her father since she was five. She was beaten by him once soon after she was sexually assaulted, but she only saw him once after she moved to Istanbul. She did not encounter her father again and had no communication with him afterwards. The applicant's evidence also suggests that she is estranged from all other family members. She continues to be resentful towards them for the way they treated her in the past and did not claim to have any desire to be accepted by or establish any contact with her relatives. Therefore, the Tribunal considers the applicant's lack of acceptance by her relatives for any reason to be inconsequential. Given this estrangement and the lack of interest shown by her father and other family members to seriously harm her in the years before her departure from Türkiye for reasons related to ‘honour’, the Tribunal does not accept that there is a real chance that the applicant would be subjected to serious harm or a real risk that she would face significant harm at the hands of her father or any other family member for the reason of, or reasons related to, having a child out of wedlock while still officially married to another man. The Tribunal is not satisfied that this risk is exacerbated as a result of the sexual assault perpetrated upon the applicant in 2005. The Tribunal finds that there is no real chance that the applicant would face serious harm and no real risk that she would be subjected to significant harm by anyone as a result of the cumulative effect of her past experience of sexual assault and her present circumstances.
Mr Oncu further submitted that ‘if violence does not eventuate,’ the applicant and her [child] would not receive any assistance from her family, such as babysitting, financial assistance, and ‘general support.’ The Tribunal appreciates that lack of family support would make life for the applicant harder if she returned to Türkiye. However, there was no persuasive evidence before the Tribunal to suggest that the applicant would be denied access to services, such as employment, social services, and health care, or that she would be denied the capacity to earn a livelihood in Türkiye. Nor did the applicant contend that [Mr D] or his mother, with whom the applicant has been residing since 2017, would be unable to provide her and her child with any form of financial assistance from Australia. Furthermore, the Tribunal finds that, based on her own evidence, the applicant will endeavour to finalise her divorce from [Mr A] and marry [Mr D] in the reasonably foreseeable future. This may open the ‘possibility of re-classification’ of the applicant’s child into the ‘in wedlock’ category.’[6] Until then, the Tribunal does not accept that if the applicant were to return to Türkiye, the discrimination, or the challenges she could face without support from other family members would amount to serious harm or significant harm.
[6] Ibid.
In his submissions, Mr Oncu made arguments that the applicant’s child would also face discrimination and hardship as a result of his classification as an 'illegitimate' child born out of wedlock in Türkiye and as a consequence of his mother's present circumstances and past experiences. However, the applicant's child is an Australian citizen and is not included in the application for review. The Tribunal, therefore, has not assessed the claims made in relation to and on his behalf. In so far as any distress caused to the applicant as a result of any negative attitudes towards or any other discrimination faced by her child in Türkiye, the Tribunal is not satisfied that this amounts to serious harm or significant harm.
Other matters and conclusions
In her Statutory Declaration of April 2018, the applicant stated that she continues to receive ‘medical and psychological assistance’ in Australia. However, she did not pursue this claim before the Tribunal and did not submit any psychological or medical evidence to suggest that she suffers from any physical and/or mental health condition for which she is receiving treatment in Australia. The Tribunal is not satisfied that the impact of any discrimination, challenge, or hardship the applicant could face in Türkiye would be exacerbated to reach a level that would amount to serious or significant harm due to any existing physical and/or mental health condition.
The Tribunal understands that the applicant harbours harrowing memories of her country of birth as a result of her past experiences. The Tribunal also appreciates that she has a strong desire to remain in Australia given her period of residence here, her relationship with [Mr D] and being a mother to their infant Australian citizen child. However, after considering all the claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Türkiye for the reason of her race, religion, nationality, political opinion, or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, she does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Türkiye, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on them for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a Protection visa. It follows that she is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister the discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal accepts that the applicant is a mother of an infant child. The child is an Australian citizen by birth, and [Mr D] is an Australian citizen. The removal of the applicant from Australia may result in her separation from her child and ongoing and irreversible harm and continuing hardship to an Australian citizen. The applicant's removal may also not be in her child's best interests.
Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’, the Tribunal will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shahyar Roushan
Senior 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:
(if)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.
…

[2024] AATA 2489

8 April 2024

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