1912662 (Refugee) - [2024] ARTA 664

1912662 (Refugee) [2024] ARTA 664 (13 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1912662
Tribunal:General Member A Ryan
Date:13 November 2024

Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that the first and second named applicants meet s 36(2)(a) of the Migration Act.

Statement made on 13 November 2024 at 12:44pm
CATCHWORDS
REFUGEE – protection visa – Turkey – ethnicity and political opinion – Kurdish – father and son – father supporter and volunteer for political party and imputed supporter of proscribed organisations – assaulted, detained, interrogated and tortured – fear of harm from authorities and ultra-nationalist groups – successful business and previous travels and returns – participation in activities in Australia reported by news sources – son subject to military service – mental health and treatment – two relatives granted protection visa – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
1806886 (Refugee) [2021] AATA 3241
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicants are [the first applicant] and his son, [the second applicant].
The applicants, who claim to be citizens of Turkey (also known as Türkiye), arrived, most recently, in Australia on a visitor visa [in] August 2018. The applicants applied for a Protection visa (Class XA, Subclass 866) on 22 August 2018.
A delegate of the Minister for Home Affairs refused to grant the protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 8 May 2019. On 21 May 2019 the applicants made an application for review to the Administrative Appeals Tribunal (AAT).
The applicants appeared before the AAT on 2 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicants were represented in relation to the review.
CLAIMS AND EVIDENCE
Evidence before the Department
The first applicant is a citizen of Turkey born in [Year] in [City 1]. He is Muslim and married with [children]. His wife and [other children] reside in Turkey and his son, the second applicant, lives with him in Australia. The first applicant completed high school and attended university in Turkey. He completed compulsory military service and has worked in [work sector], operating a [business] for approximately 9 years. The second applicant, also a Turkish citizen, was born in [City 2] in 2002 and lived there until travelling to Australia. The applicant was undertaking high school in Turkey at the time he came to Australia. The second applicant is Muslim.
In their protection visa application, it is noted that only the first applicant is raising his own claims for protection. These claims are summarised as follows.
The first applicant is Kurdish and was born in southeastern Turkey.
Since the first applicant was young, he has been attacked, detained and mistreated on a number of occasions because of his ethnicity, political opinions and involvement with pro‑Kurdish political parties.
The first applicant fears serious harm from the Turkish authorities because of his support to the pro‑Kurdish political party, the People’s Democracy Party (HDP), and other Kurdish groups. He fears he will be arrested and mistreated by the Turkish police. He also fears he will be charged for an offense that he has not committed, seen as someone associated with an illegal organisation and subject to interrogation and torture awaiting trial.
The first applicant has experienced serious harm in the past due to his political support for pro‑Kurdish groups. He was detained and interrogated by the police from the anti-terror unit and was accused of being linked with illegal organisations such as the Kurdistan Workers Party (PKK) and the Kurdistan Communities Union (KCK), even though he had nothing to do with these organisations.
The first applicant fears that if he expresses his political opinion and defends the rights of Kurds or supports legal pro-Kurdish political parties or groups, he will face serious harm. The applicant fears he could be harmed for speaking Kurdish.
The first applicant will not be able to be protected by anyone as even HDP officials and parliamentarians are at risk. The Justice and Development Party (AKP) government has been targeting intellectuals, lawyers and journalists and even solicitors, prosecutors and judges are scared about taking actions against the AKP government. The authorities are those that he fears harm from, and he will not be protected from them.
The first applicant moved to a different city in Turkey but the mistreatment continued and the first applicant believed it will continue wherever he is in Turkey because of his ethnicity, political opinion and involvement with pro-Kurdish political groups.
The first applicant fears that the police as well as ultra-nationalist racist groups knows as ‘Ülkücü’ may harm him and his family.
The first applicant was forced to close his business and flee the country.
The first applicant fears his risk of being seriously harmed is greater than before and he fears for the safety of his wife and [other children] who remain in Turkey.
The first applicant indicated that he would submit a full statement related to his claims.
The first and second applicants provided a copy of their Turkish passports and national identity cards to the delegate.
The first applicant provided a statement dated 13 March 2019 which provided further details of his protection claims, which are summarised as follows.
The first applicant is the [birth order] child of a Kurdish family with [Number] children. He is married with [children]. His wife and [other] children are living in [City 2], Turkey. [Some] of his siblings live in Turkey, [some] live in [Country 1] and [some] live in Australia. [Two relatives] have been granted protection in Australia due to the persecution they experienced in Turkey.
The first applicant grew up in [City 1], Turkey and speaks Kurdish fluently. He attended a government boarding school which was established for the assimilation of Kurds and he was required to read aloud the national pledge.
The first applicant’s family is politically active and many of his family members have been struggling for the Kurdish cause for decades and some have been harshly mistreated. The first applicant provided information about the mistreatment of Kurds in Turkey generally.
The first applicant has been an active member/supporter of pro-Kurdish political parties since [Year], including the People’s Democracy Party (HADEP), Democratic People’s Party (DEHAP), Democratic Society Party (DTP), the Peace and Democracy Party (BDP) and currently the HDP. Due to this support, he was viewed as being a supporter of the PKK and later the KCK by Turkish authorities. The first applicant has experienced mistreatment in the form of detention, assault and torture. The first applicant fears he will be subject to greater levels of harms from the Turkish authorities and ultra‑nationalists group known as “Ülkücü” in the future.
The first applicant has been interested in politics and the Kurdish cause in particular since high school, reading material and participating in discussions on Kurdish issues. He was in contact with students from left-wing political groups and received threats from ultra‑nationalists and warning from teachers. In or around [Year] the Turkish Gendarmerie interrogated him in his village and accused him of making propaganda for illegal terror organisations. They assaulted him and two of his friends. The first applicant suspects someone from their village reported on their activities.
He commenced a university degree in [Subject] in [University] in [City 2] in [Year]. He was active in politics at university. The majority of the students and residents were ultra-nationalist in [City 2]. The first applicant was verbally and physically harassed by ultra-nationalists. He also received threats from the police.
The first applicant was detained and assaulted by police in [Year] for distributing pamphlets condemning the mistreatment of Kurds by Turkish authorities. He was accused of making PKK propaganda. After being detained for 4 days, he appeared before the court and was granted conditional release. The matter was later transferred to the State Security Court in Ankara and he was found not guilty. The first applicant continued to receive threats from ultra‑nationalists and he changed his surname from [Surname 1] to [Surname 2] in [Year] as [Surname 1] is a Kurdish name.
The first applicant undertook military service in [Year], and then worked as [an occupation] until 2004. During this time his political activities were limited to discussing politics with friends.
The first applicant married in October 2001 in [City 3]. During a ceremony the day before the wedding in which the applicant and guests were singing Kurdish songs, they were attacked by ultra‑nationalists who were armed with machetes and knives. There were no serous injuries, but the first applicant did not call the police for protection as he was worried the wedding would be banned for security reasons.
He continued to meet with Kurdish friends and discuss politics and would attend the HADEP and later the DEHAP offices when he went to [City 3].
He was stopped and assaulted by police on the way to Newroz celebrations in [City 3] in 2006. The police took his identity details and confiscated his scarf, which was in the colours of the Kurdish flag.
In 2008, ultra-nationalists targeted his [business]. He reported this to the police, who questioned him about his political involvement. He changed the location of his business. In 2013 he again had problems at his business after he was in contact with HDP officials who were in the process of establishing an office in [City 2]. The first applicant again changed the location of his business.
The HDP office opened in [City 2] in late 2013 and the applicant attended these offices to meet friends. In 2014 the police came to his business and interrogated him about his involvement with the HDP and warned him to stop supporting the HDP. He continued to visit and give donations to the HDP.
In 2014, the first applicant was collecting donations, including food, for Kurdish civilians impacted by ISIL attacks in [City, Country 2] and he travelled to [City 4] in solidarity. The first applicant attended protests against the Turkish authorities for blocking aid to [City]. He and others were detained and beaten. He was accused of supporting the illegal terror organisation PYD (the Democratic Union Party). He was released without charge after one night in detention. He stayed in [City 3] and continued to attend protests. The police and ultra‑nationalists attacked members of the protests and 4 people died in these attacks.
The first applicant undertook political advocacy to many Kurds in [City 2] in the lead up to the June 2015 elections. However, due to the subsequent attacks against Kurds the applicant was too scared to visit the HDP office or Kurdish friends in the lead‑up to the November 2015 elections.
[In] July 2016 the first and second applicants arrived in Australia to visit relatives. The first applicant returned to Turkey after 10 days due to a problem with his business. The second applicant returned after 85 days.
After the December 2016 attack by the PKK against the Turkish military in [City 2], in which 14 soldiers and 50 people were injured, the first applicant was threatened and insulted by ultra‑nationalists. The first applicant’s wife also received threats.
The first and second applicants came to Australia in May 2017 to visit family.
The applicant engaged in significant efforts against the change from a parliamentary democracy to a presidential republic which followed the April 2017 referendum. The applicant was interrogated by police and warned he would be charged.
In March 2018 the first applicant visited the HDP offices more often due to the upcoming election. [In] April 2018, he was approached by 2 plain‑clothed police officers who stated that they were from the anti-terror squad. They drove the applicant around [City 2] and spoke to him in a way that indicated they knew about his political involvement with the HDP in [City 2 and his family. They ask the first applicant to be a police informant about the HDP and its links with PKK/KCK and threatened that he would not be able to survive in Turkey if he did not do what was asked. The first applicant told them he needed time to consider what they had said.
In late April 2018 the first applicant was again contacted by the police and he said he would need more time. The first applicant applied for visas for him and his family to come to Australia.
The second applicant came to Australia [in] June 2018. The first applicant was waiting for the outcome of the visa applications for his wife and [other children]. In July 2018 the applicant was contacted by the police and the first applicant stated that he would be able to give them the information they requested but needed 6–8 weeks to do this. The visa applications for the first applicant’s wife and [other child] were refused. The applicant made arrangements with his business and left Turkey [in] August 2018.
On 3 April 2019 the applicants provided the following documents in support of their application for protection:
a.    Letter from the [Official] of the [Organisation 1].
b.    Institution Opening License dated 12 April 2017 and translation.
c.     Court documents related to the name change of the first applicant and translation.
d.    University documents for the first applicant and translations. These documents include a letter that he provided to the university faculty management committee regarding being detained between [Dates] as the reason that he missed his exams during this period.
e.    Submission regarding his inability to provide further supporting photographs of his political activities and problems for other Kurds in his home area.
The Departmental interview
The first applicant attended an interview with the delegate on 29 March 2019.
The delegate’s decision
The delegate refused the protection visa application on 8 May 2019. The delegate accepted that the applicant is a Turkish citizen of Kurdish ethnicity who officially changed his surname in Turkey. The delegate found that as a Kurd the applicant may face discrimination however not to the level of persecution.
The delegate noted that the first applicant had been able to operate a successful business, as well as leave and re-enter the country. The delegate reasoned that if the first applicant had a genuine fear of his life, given the level of attacks and intimidation against the HDP, he would have sought protection in Australia on his first visit to Australia.
The delegate further noted that the applicant, as a mere HDP volunteer, would not be asked to be a police informer, and even if he was, the authorities could have prevented him from leaving Turkey, which they did not. The delegate found that he was not asked to be one and was not inquired about by the authorities. The delegate also found that the first applicant is at best a volunteer with the HDP and as such does not have a profile that has or would attract significant adverse attention of the Turkish government if he returned to Turkey.
The delegate noted that the Department of Foreign Affairs and Trade (DFAT) reports that failed asylum seekers come to the attention of the Turkish government if, amongst other things, they were a member of a group of interest including a Kurdish one or opposition political activist. The delegate found the applicant does not have a profile of interest to the Turkish authorities and would not come to the attention of the authorities.
Evidence before the Tribunal
The applicants made an application for review to the Tribunal on 21 May 2019.
On 11 June 2024 the Tribunal wrote to the applicants to advise that their case was being prepared to be given to a Member and inviting more information about their protection claims. No response was provided.
On 14 June 2024 the Tribunal wrote to the applicants informing them that the Tribunal was not able to make a favourable decision on the information provided. The Tribunal invited the applicants to attend a hearing on 26 July 2024 to give further evidence or arguments.
On 24 July 2024 the applicants’ representative provided submissions outlining the applicants’ circumstances, country information and legal arguments in support of their application for protection. The submissions included further information about the applicants’ claims for protection, which can be summarised as follows.
The first applicant has been an active member of pro-Kurdish political parties since [Year]. These parties include the People’s Democracy Party (HADEP), Democratic People’s Party (DEHAP), Democratic Society Party (DTP) and, currently, the Peoples’ Democracy Party (HDP). His involvement includes organising and participating in political rallies, distributing pamphlets and supporting Kurdish political causes. He has held various roles within these parties, including local organiser, protest leader and liaison with other Kurdish political activists. His responsibilities often placed him at the forefront of the Kurdish political movement.
In Australia, the first applicant has attended numerous events, rallies and protests organised by [Organisation 1] in NSW. Many of these activities were published on [News source 1], which the Turkish State considers a PKK-affiliated news portal. Their appearances in these publications have heightened their visibility and risk. The Turkish government closely monitors such publications and often targets individuals associated with them.
The first applicant’s mental health has deteriorated over time. The impact of the past traumatic experiences has adversely affected his psychological well-being, leading to severe distress, persistent fear for his and his family’s safety and trauma from repeated mistreatment and discrimination. He has been receiving psychological treatment and has been diagnosed with post-traumatic stress disorder and major depressive disorder, recurrent, severe without psychotic features.
The second applicant has been influenced by his father's political involvement and the Kurdish cause, growing up in an environment where activism and the fight for Kurdish rights were central themes. The second applicant has been in Australia since he was [Age] years old and since this time has been actively involved in the Kurdish community including in leadership roles.
The second applicant is a prominent figure in the [Organisation 1]. He serves on [a] Committee of [Organisation 1], where he organises events, rallies and protests, mobilises young people and raises awareness about the Kurdish struggle. He has also led workshops, participated in panel discussions, participated in advocacy for Kurdish rights with Australian politicians including in Canberra and organised cultural events to promote Kurdish identity and political awareness.

Many of these activities that the second applicant has attended were published on [News source 1], which the Turkish State considers a PKK-affiliated news portal. The second applicant will be labelled a PKK terrorist by the Turkish authorities.
The second applicant will be subject to military service in Turkey as he is now over 18 years old. He opposes serving in the military both personally and politically as a stance against the Turkish government’s oppression against Kurds. Serving in the Turkish military poses a significant risk to the second applicant.
The Tribunal in other decisions has accepted that the [New source 1] is perceived to be affiliated with the PKK and found that there is a high likelihood that the Turkish authorities monitor reports by Kurdish news agencies.
On 24 July 2024 the applicants provided the following additional documents in support of their application for protection:
a.    Letter from [Organisation 1] dated 19 July 2024 from the [Official] related to the applicants’ activities in Australia and problems they will face in Turkey.
b.    Letter from [Mr A] of [News source 2], undated, stating that he has witnessed the applicants’ attendance at political protests.
c.     Letter from [Mr B], former member for [Electorate] in NSW Parliament, undated, indicating that he participated in numerous events with the Kurdish community including demonstrations and has come to know the applicants as strong advocates for Kurdish rights including through protests and community activities.
d.    Psychological Treatment Report for the first applicant by psychologist [C] of [Service provider], dated 24 July 2024.
e.    Registered Mental Health Social Work Report for the first applicant dated 15 July 2024 relating to treatment since August 2023.
f.   Legal Expert Opinion Report from [D] related to the first and second applicants.
g.    Screenshot of the E-State Military Service Status for the second applicant related to draft evasion with translation.
h.    DFAT Country Information Report Turkey dated 10 September 2020.
i.   UK Home Office Country Policy and Information Note on Turkey – HDP/YSP, October 2023.
j.   UK Home Office Country Policy and Information Note on Turkey – Kurds, October 2023.
k.     UK Home Office Country Policy and Information Note on Turkey – Kurdistan Workers Party (PKK), October 2023.
l.   UK Home Office Country Policy and Information Note on Turkey – Military Service, October 2023.
m.   United States Department of State, 2022 Country Reports on Human Rights Practices: Turkey (Türkiye).
n.    Amnesty International Türkiye 2023 Report.
o.    Human Rights Watch, Türkiye – Events of 2023 Report.
p.    Freedom in the World Türkiye 2024 Report.
q.    Bertelsmann Stiftung’s Transformation Index (BTI) 2024 Türkiye Report.
r.     Open Doors International, World Watch Research, Turkey – Full Country Dossier, January 2024.
s.     AAT decision, 1806886 (Refugee) [2021] AATA 3241 (30 June 2021).
t.   Photographs of the first and second applicants at political and cultural activities in Australia.
u.    Screenshots and links to online publications of political activities published on the [News source 1] website of protests and community events.
v.     Screenshots and links of online political activities published on [News source 2]’s YouTube channel related to the first and second applicant.
w.   [Organisation 2] Instagram Posts related to the second applicant.
x.     Media articles related to attacks on Kurds and the HDP.
y.     TAFE academic transcript for the second applicant.
The hearing
The first and second applicants appeared before the Tribunal on 2 August 2024 to give evidence and present arguments. Where relevant their evidence is discussed below.
Post hearing submissions
On 13 August 2024 the applicants provided the following additional documents in support of their application for protection:
a.    Previously submitted photographs of the first and second applicants at political and cultural activities in Australia with location and dates.
b.    Previously submitted screenshots and links to online publications of political activities published on [New source 1] website with locations and dates.
c.     Previously submitted screenshots and links of online political activities published on [News source 2]’s YouTube channel related to the first and second applicant with locations and dates.
d.    Media articles related to arrests and attacks on Kurds and suppression of Kurdish language and culture.
On 17 October 2024 the applicant’s representative provided additional submissions and links to media articles relating to the arrest and detention of Australian [Ms E] in Turkey on charges related to being linked with the PKK. The submission included links to Turkish media which depicted a photo of [Ms E] at an event of the [Organisation 1] which appeared in a [News source 1] website publication. The applicant’s representative notes that the same picture was used by Turkish media in reference to [Ms E] being part of the PKK.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Nationality
The first and second applicants have consistently claimed to be citizens of Turkey. The applicants entered Australia on Turkish passports and have provided certified copies of these passports to the Tribunal. There is no information before the Tribunal raising concerns with the applicants’ identities. The Tribunal finds that the applicants are citizens of Turkey.
There is no information before the Tribunal to suggest that the applicants are citizens of another country.
Claims for protection
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
First applicant
The Tribunal has considered the first applicant’s claims and found his evidence to be reliable, coherent and persuasive. The Tribunal has placed weight on the detailed statement provided by the applicant, including his coherent evidence about his political activities spanning over [Number] years since he was in high school in the [Decade] to his political support to Kurdish parties as a volunteer until his departure from Turkey in 2018. The applicant demonstrated a detailed knowledge of matters affecting Kurds as well as the People’s Democratic Party (HDP), including local‑level operations of the HDP in his area in Turkey, which was consistent with country information. The applicant gave evidence that although he was committed and active in support of the HDP he was a volunteer, rather than a member of the HDP, due to the dangers of being an official HDP member.
The Tribunal gives weight to the supporting statements from numerous people who have direct knowledge of the applicant’s political activities in support of Kurdish causes in Australia. The applicant also provided credible evidence, including photographs and online media reports, of the first applicant’s participation at protests against the Turkish government and at public events supporting Kurdish causes in Australia. The Tribunal also places weight on the documentary evidence he has provided, including court documents related to his change of name from a Kurdish to a Turkish name as well as evidence from his university about his inability to attend exams in [Year] due to his detention.
The Tribunal has also had regard to country information that political parties representing Kurdish interests have traditionally faced strong opposition from the Turkish state and many Kurdish parties have been declared illegal on the grounds of providing support for the Kurdistan Workers’ Party (PKK),[1] which is designated as a terrorist organisation in Turkey. The most recent UK Home office report notes that, despite its status as a legitimate political party, the Turkish authorities often conflate the Peoples’ Democratic Party (HDP) with the proscribed terrorist organisation, the PKK.[2]
[1] DFAT, Country Information Report: Turkey (10 September 2020) (DFAT Report 2020) at [3.42].
[2] UK home office, Country Policy and Information Note Turkey: Peoples’ Democratic Party, Executive Summary, updated 9 August 2024, available at <>
The Tribunal has some concerns about the first applicant’s claims to have been approached by police officers to act as an informant. The Tribunal notes that the delegate found that the first applicant, as a HDP volunteer, would not have a profile that would attract the attention of Turkish authorities and, as someone who was so low level, he would not be of value to the authorities as an informant.
The Tribunal has had regard to country information which indicates that the Turkish police engage in practices to coerce or force people to become informants. One Turkish NGO notes that in the first 10 months of 2020, 160 people became informants, mostly students, political party members, journalists and family members of political prisoners.[3] When discussing the use of informants, Andrew Gardner of Amnesty International informed the UK Home Office that there are many reports on people being released after arrest and detention on the condition of being an informant for the police.[4]
[3] Human Rights Association (IHD), Special report on testimonies, interviews, forced informant-making through methods of coercion and threat and abduction, 5 November 2020, available at < UK Home office, Country Policy and Information Note Turkey: Kurds, October 2023, at [10.13.1] available at <>
Considering the applicant’s oral and written evidence of his personal experiences, the corroborating evidence and relevant country information, the Tribunal finds that the first applicant is of Kurdish ethnicity and was born and raised in southeast Turkey. The Tribunal accepts that he has faced systemic discrimination and he has been subject to verbal and physical harassment and threats from Turkish security forces and ultra-nationalist groups in Turkey. The Tribunal accepts that the applicant has been detained and ill-treated by the Turkish authorities on two occasions, the first in [Year] where he was detained for 4 days and then again in 2014 when he was detained at a protest and released without charge. The Tribunal accepts that the applicant supports the HDP and he has undertaken activities as a HDP volunteer, including political canvassing before the 2015 election and 2017 referendum.
On the basis of the applicant’s evidence and significant supporting documentation, the Tribunal also accepts that the first applicant has been politically active in Australia in support of Kurdish rights, including attending demonstrations against the Turkish government which have been published online by [News source 1]. The Tribunal is of the view that the first applicant’s participation in Kurdish events and attendance at political events and protests in Australia is consistent with his long held political views and activities in Turkey and was not engaged in for the sole purpose of strengthening his protection claims.
Having regard to the applicant’s evidence and to the country information discussed above, the Tribunal finds the applicant’s evidence is plausible and given the reliability and detail of his evidence overall, despite some doubts, is prepared to accept that he was approached by the Turkish police to act as an informant as claimed.
Does the first applicant satisfy the refugee criterion for protection?
Having accepted that the first applicant is of Kurdish ethnicity, from the southeast of Turkey, is known to police and is politically active, including expressing his pro‑Kurdish, pro‑HDP and anti-regime political opinions, the Tribunal has considered whether there is a real chance he will face harm if he returns to Turkey in the reasonably foreseeable future.
The Tribunal has considered country information which indicates that the extent and form of discrimination against Kurds in Turkey depends on geographical and personal circumstances: ‘those residing in the southeast, and those active (or perceived to be active) in Kurdish political or civil society organisations are at higher risks than those who are not politically active’ or those who support the ruling Justice and Development Party (AKP). [5]
[5] DFAT Report 2020, at [3.9].
The Tribunal has given significant weight to DFAT’s assessments that ‘pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra‑nationalist supporters. The level of risk is the same for high-level politicians and low-level activists, and applies nationwide’.[6] The Tribunal also notes the reported comments of an Amnesty International spokesperson that ‘anyone who speaks out against the government on issues of Kurdish rights could be argued in the current context to be supporting the PKK.’[7]
[6] DFAT Report 2020, at [3.45].
[7] UK home office, Country Policy and Information Note Turkey: Peoples’ Democratic Party, updated 9 August 2024, available at [12.9.2 (a)] available at <>
The Tribunal has had regard to the applicant’s representative’s submissions that the Turkish authorities monitor political activities outside Turkey, including monitoring of Kurdish media sources such as [News source 1], which the government perceives to be linked to the PKK, and this has been previously recognised by the Tribunal. The Tribunal is mindful that in another matter, differently constituted, the Tribunal found that there is a high likelihood that the Turkish authorities monitor reports by Kurdish news agencies and that such news agencies are linked with the PKK by the Turkish authorities.[8] The Tribunal in that matter had regard to the 2018 DFAT report, which, citing human rights defenders, reported that pro‑Kurdish activists who made comments on social media that authorities found offensive were now likely to be identified as PKK supporters and faced much harsher punishments than in the past.[9]
[8] 1806886 (Refugee) [2021] AATA 3241 (30 June 2021) at [para 63].
[9] DFAT, Country Information Report: Turkey, 9 October 2018 at [3.47].
The most recent US State Department report for 2023 notes that ‘Human rights groups alleged many detainees had no substantial link to terrorism and were detained to silence critical voices or weaken political opposition to the ruling Justice and Development Party (AKP), particularly the HDP or its partner party, the Democratic Regions Party.’ The same report notes that NGOs estimated approximately 8,500 individuals were held in pretrial detention or were imprisoned following conviction specifically for alleged links with the PKK.[10] The European Commission’s 2023 Turkey Report notes that according to various reports, torture and ill-treatment continued to occur in detention centres, prisons, informal places of detention and transportation vehicles, and on the street during demonstrations. Disproportionate use of force by security forces continued.[11] The Tribunal has also placed weight on DFAT’s view that reports of ‘torture in Turkish police stations and detention facilities, particularly in the southeast, and in the period immediately following the 2016 attempted coup, are likely credible’ and highly unlikely to obtain redress.[12] In August 2024, UN Special Rapporteurs published allegations of torture and/or ill treatment of 3 women who were arrested and detained on charges related to being members of the PKK in August 2023 and who were allegedly tortured and/or ill‑treated by a large number of correction officers and a gendarmerie unit because they had made a complaint about the conditions in the prison.[13]
[10] US State Department (USSD), Türkiye 2023 Human Rights Report, p.16, available at < European Commission, ‘Türkiye 2023 Report’, 8 November 202 at p. 3 available at < DFAT Report 2020, at [4.14].
[13] Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Special Rapporteur on violence against women and girls, its causes and consequences, Communication Ref.: AL TUR 4/2024, 15 August 2024, available at < type="1">
Considering all the evidence before it, the Tribunal is satisfied that if the first applicant returns to Turkey there is a real chance he will face serious harm in the form of physical violence from security authorities and that he may be imputed with PKK affiliations and subject to ill‑treatment during interrogation, detention or custody. The Tribunal is further satisfied that the harm is both systemic and discriminatory as required by s 5J(4)(c).
The Tribunal is satisfied that the essential and significant reasons for the persecution feared are because of the applicant’s race as well as his actual and imputed political opinion.
As noted above, DFAT assesses that the risk of harm to Kurdish political activists is nationwide. The Tribunal is satisfied that the real chance of persecution relates to all areas of Turkey as required by s 5J(1)(c) of the Act.
For the above reasons the Tribunal finds that the applicant comes within the definition of a ‘refugee’ set out in s 5H of the Act and satisfies the criterion set out in s 36(2)(a).
Second applicant
At hearing the second applicant expressed his fears that he will be perceived as a terrorist in Turkey because of his association with his father and because of his political opinion and activities in Australia, including attending and speaking at protests in support of Kurds, against the Turkish government and President and his leadership role in Kurdish youth organisations in Australia. The second applicant also explained that some of his political activities, including his speeches at protests, are reported online by [News sources 1 and 2] which will be known by the Turkish authorities. He also fears he would face harm in Turkey as he will be required, but will refuse, to undertake military service if he is in Turkey.
The second applicant provided a detailed and substantiated account of his political activism since he was [Age] years old in Australia. The second applicant gave details of his membership of the [Organisation 1] in Sydney, his current role as a member of [a] Committee of the [Organisation 1] and also his role with others in the [Organisation 1]. He also detailed his volunteer work on the [Committee] of [Organisation 1] and his role, with others, in establishing a specific Kurdish youth group and encouraging young people to participate in pro-Kurdish events. The second applicant estimates that he has attended between 20 and 30 protests in Australia, including holding banners and making speeches in support of Kurdish causes and against the Turkish president and/or government. He also gave evidence that he has collaborated with Australian members of parliament in his work for Kurdish cases.
The applicant’s evidence was detailed, his commitment for Kurdish rights was evident in his testimony and much of his evidence about his activities was corroborated by verifiable documentary, photographic or video evidence. The second applicant provided letters from a range of people who have participated in political activities with him, including Australian members of parliament. The Tribunal finds the evidence of the second applicant’s political view and activities in Australia to be reliable.
The Tribunal accepts that as Turkish male over 21 years who is not at university, the second applicant is required undertake military service.[14] The Tribunal notes that in June 2019 a new law allows conscripts, after one month of military training, the ability to buy-out the remaining five months for a fee of 31,000 Turkish Lira (AUD6,640 as at June 2020).[15] The Turkish government does not recognise the right to conscientious objection to military service.[16] People who do not undertake their military service at the time required are fined and fines compound.[17] According to the most recent 2020 DFAT report, although the law provides for imprisonment for draft evasion, it is not used in practice.[18] However, the 2023/2024 report of the European Bureau for Conscientious Objection (EBCO) indicates that, in Turkey, the non-recognition of the right to conscientious objection to military service has resulted in repeated prosecution (including imprisonment) and a limitation of rights which the European Court of Human Rights (ECtHR) has described as ‘civil death’ and cruel, inhuman or degrading treatment.[19] Names and details of three people who were sentenced to imprisonment for draft evading in 2023 were provided in the EBCO report.[20]
[14] DFAT Report 2020, at [3.92].
[15] DFAT Report 2020, at [3.92].
[16] DFAT Report 2020, at [3.95].
[17] DFAT Report 2020, at [3.95].
[18] DFAT Report 2020, at [3.95].
[19] European Bureau for Conscientious Objecting, Report on conscientious objection to military service in Europe 2023/24, 146, EBCO Annual Report 2023/24 < European Bureau for Conscientious Objecting, Report on conscientious objection to military service in Europe 2023/24,148, EBCO Annual Report 2023/24 <>
The Tribunal finds that the second applicant is the son of the first applicant, is of Kurdish ethnicity and has been an active participant in Kurdish organisations in NSW over the past four years, including taking a leadership role in a Kurdish youth organisation. The Tribunal accepts that the second applicant advocates for Kurdish rights and publicly speaks out against the current Turkish president and government including through protests, speeches and political meetings. The Tribunal considers the second applicant’s motivation for his political activities is genuine as is his intention to continue to express these views and support Kurdish rights, including if he is in Turkey. The Tribunal accepts that the second applicant will be subject to compulsory military service and come to the attention of the authorities in Turkey for this reason. The Tribunal also accepts the second applicant will refuse to undertake this military service for political reasons.
Does the second applicant satisfy the refugee criterion for protection?
Given the above findings of the Tribunal, and the country information discussed in relation to the first applicant, the Tribunal has considered whether there is a real chance the second applicant will face harm if he returns to Turkey in the reasonably foreseeable future.
As discussed above in relation to the first applicant, the Tribunal has given significant weight to DFAT’s assessments that ‘pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for high‑level politicians and low‑level activists, and applies nationwide’.[21] It has also placed weight on DFAT’s view that reports of ‘torture in Turkish police stations and detention facilities, particularly in the southeast, and in the period immediately following the 2016 attempted coup, are likely credible’ and highly unlikely to obtain redress.[22]
[21] DFAT Report 2020, at [3.45].
[22] DFAT Report 2020, at [4.14].
The second applicant’s adverse profile with the Turkish authorities is likely to be further increased due to his activities in leading chants and speaking at protests in support of Kurdish causes and against the current Turkish president and government in Australia. The Tribunal is mindful that the video of at least one of these protests is available online, published by [New source 2]. Similar to the first applicant, the Tribunal accepts that the coverage of the second applicant’s protest against the Turkish authorities and at Kurdish events by [News source 1] may lead to adverse attention from the Turkish authorities.

100. As a person who is subject to military services obligations, the second applicant will be identifiable to the Turkish authorities and in the view of the Tribunal this increases the chance he will be investigated and subject to interrogation involving ill-treatment.
101. Considering all the applicant’s evidence and publicly available country information discussed above, the Tribunal is satisfied that there is a real chance the second applicant will be subjected to serious harm in Turkey on the basis of his race, as the son of the first applicant and due to his actual and imputed political opinion from the Turkish authorities, including the police and military as well as from ultra‑nationalists. The Tribunal considers that there is a real chance he will be subjected to significant physical harm in the form of physical violence, interrogations, arrests and detention.
102. The Tribunal is further satisfied that the harm the second applicant may face is both systemic and discriminatory as required by s 5J(4)(c).
103. The Tribunal is satisfied that the essential and significant reasons for the persecution feared are because of the applicant’s race, his actual and imputed political opinion and his membership of a particular social group as the son of the first applicant.
104. As noted above, DFAT assesses that the risk of harm to Kurdish political activists is nationwide. The Tribunal is satisfied that the real chance of persecution relates to all areas of Turkey as required by s 5J(1)(c) of the Act.
105. For the above reasons the Tribunal finds that the applicant comes within the definition of a ‘refugee’ set out in s 5H of the Act and satisfies the criterion set out in s 36(2)(a).
Section 36(3) of the Act
106. There is no evidence before the Tribunal that the first and second applicants have rights to enter and reside in any other country. The Tribunal accordingly finds they have no such right and that they are not excluded from Australia’s protection by s 36(3) of the Act.
Conclusion
107. For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
108. The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that the first and second named applicants meet s 36(2)(a) of the Migration Act.

Date of hearing: 2 August 2024
Representative for the Applicant: Mr Kenan Bircan (MARN: 1463685)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

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

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

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

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

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

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

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

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

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

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

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