1919229 (Refugee) - [2023] AATA 3987

1919229 (Refugee) [2023] AATA 3987 (18 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Rey Ozdemir (MARN: 1573815)
CASE NUMBER:  1919229
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Bridget Cullen
DATE:18 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first-named Applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the second, third, fourth, and fifth-named Applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named Applicant.
Statement made on 18 August 2023 at 4.55pm

CATCHWORDS
REFUGEE – protection visa – Turkey – religion – Christian conversion – particular social group – lesbian – LGBTIQ – victim of childhood sexual assault – members of the same family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 June 2019 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicants, who claim to be citizens of Turkey, applied for the visas on 25 January 2019. The delegate refused to grant the visas on the basis that the Applicants were not persons to whom Australia has protection obligations as outlined in s 36(2)(a) and s 36(2)(aa) of the Act.
The Applicants appeared before the Tribunal on 26 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The Applicants were represented in relation to the review by their migration agent, Ms Rey Ozdemir. Ms Ozdemir attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Applicants are persons to whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The first-named Applicant’s claim for protection can be summarised as follows:
·She came to Australia with her family when she was [age] years old, and has lived here ever since.
·As a child she always felt she struggled with her identity and didn’t know who she was.
·When she was younger, she thought she was Muslim but now she considers herself a Christian, and is grateful to have found her true religion.
·She was bullied in primary school by Muslim children and was then bullied by other children who thought she was a Muslim.
·During primary school she enjoyed participating in activities related to the Christian festivals of Christmas and Easter, and began self-identifying as a Christian.
·When she was [age] years old, a few months before the family came to Australia, an incident occurred with her paternal uncle.
·Her uncle collected her from kindergarten and brought her some lollies and chocolates.
·He gave her one and asked her if she wanted more, then said that if she wanted anymore, she would have to do something for him in return.
·He insisted that she had to keep what he was going to ask for a secret between the two of them, and that if she ever mentioned it to anyone, he would never talk to her and give her lollies, and that she would be in big trouble if she did.
·He started unzipping his jeans, pulled them down, as well as his underwear.
·The Applicant said she felt confused and embarrassed, and didn’t know what to do.
·Her uncle laughed and insisted it was okay, telling her it was ok to look.
·The Applicant said her uncle was trying to normalise the incident by reminding her that he was going to give her a bunch of lollies and chocolates.
·The Applicant’s uncle told her to touch his private part and he held onto her hand, pulling it closer to her, and giving her another candy.
·He kept telling her to hold it and rub and then when it ended, he gave her a kiss on the cheek and gave her all the lollies and chocolates as if it was a reward for touching his penis, but she didn’t know it was wrong especially since he made it seem normal.
·The Applicant has since felt very angry at her uncle and feels that children will do things that adults tell them to, especially family members.
·The Applicant has always felt uncomfortable about the memory of that incident and for a long time did not understand what it all meant, until she reached the end of primary school and began to learn about sexual relationships.
·The Applicant feels she cannot return to Turkey knowing that she would have to face him again.
·The Applicant feels she has always hated men and felt scared by them as a result of this incident. She has always feared another incident like this occurring.
·After starting primary school in Australia, the Applicant always insisted having a female teacher and her mother requested this for her at all three of the primary schools she attended.
·As the Applicant grew older, she felt disgusted by men and never liked any of the boys in her classes. She did not have any interest in dating any of them and found herself being more attracted to girls.
·The Applicant reports that she realised she liked girls when her friends [Miss A] and [Miss B] had a sleepover at her house. The friends discussed the fact that they had never kissed anyone and decided to practise kissing each other.
·The Applicant said she really enjoyed kissing her friends and that she and [Miss B] still kiss each other occasionally.
·The Applicant fears going back to Turkey because she won’t be able to live her life freely as she can in Australia. She is concerned about how women, Christians, and people who identify as LGBTQ are treated in Turkey.
·The Applicant feels that her life is going well here and that her life will fall apart if she is forced to return to Turkey.
The second-named Applicant’s claim for protection can be summarised as follows:
·The Applicant is a Turkish national from Adana who arrived in Australia on a 457 visa with his family [in] November 2012.
·The Applicant is from a family of [number]. His family are conservative Sunni Muslims and practise Islam. He has many relatives on his mother’s side of the family from Adana.
·The Applicant was a [occupation] before obtaining employment in Australia and securing a 457 visa.
·The Applicant had been brought up in a family which was dominated by his father, and he was forced to practise Islam under sharia law until he departed Turkey.
·Finding employment aboard was the only way he could escape his family’s pressure and remain safe with his family.
·The Applicant became Christian after migrating to Australia as he wanted to fit into the Australian way of life.
·His three children are Christian. His [wife] has not converted to Christianity, but also does not practise Islam.
·The Applicant made a further application for a 457 visa on 1 September 2016 which was refused on 5 October 2017.
·His employer appealed this decision but passed away before the appeal was finalised. The new owners of the business did not continue the appeal.
·The Applicant sold his home and sent money to Turkey in preparation to depart Australia.
·When the Applicant explained life in Turkey to his children, he explained that they would have to change their way of life as they would be harmed if their extended family knew about their conversion to Christianity.
·The Applicant’s [daughter] was particularly upset by this and reluctant to return to Turkey. The Applicant understood that he would not be able to conceal the fact that he and his children had been known as Christians, and decided to lodge a protection visa application based on his fear of returning to Turkey.
·The Applicant included his daughter in his protection visa application because she was too young to understand the real risk she faced if she disclosed the family had lived as Christians in Australia.
·The Applicant then transferred his money from Turkey back to Australia and invested in his current business, so that he could continue to provide for his family while they awaited their visa application.
·After the refusal in 2019, the Applicant was discouraged, and began investing his money in Turkey once more.
·The relationship between the Applicant and his [daughter] has been rocky since the refusal because the Applicant began making plans for his return to Turkey, while [his daughter] is refusing to live in Turkey.
·The Applicant has been waiting for his children to realise that sharing their life story in Australia will put them at real risk of harm by the extended family members in Turkey, and will cause them to be discriminated against, persecuted, and targeted.
The third-named Applicant’s claim for protection can be summarised as follows:
·The Applicant is a Turkish national and was born in Adana. She comes from a family of [number].
·The Applicant’s family follow the AKP Party and love President Erdogan. He [brother] is very political, and his son is [an officer in] the Army.
·The Applicant had a very difficult upbringing and suffered physical domestic violence from her brothers and her father. She was beaten many times for not serving them on time, or not preparing their demands properly. She was allowed to study until Year 9 only, and was never allowed to do what she wanted.
·The Applicant and her husband had an arranged marriage which had been organised by her family, and they were married six months after meeting.
·The Applicant’s husband’s family lived with them and were always watching her, telling how to behave and act and what to do.
·Her mother-in-law would give her chores to do every day while she was pregnant, such as washing rugs, cooking for everyone, washing clothes by hand, and other housework.
·The Applicant had three children before her husband applied to work in Australia. She always felt watched and oppressed.
·Since coming to Australia, the family have grown closer together and have created a happy environment for their children.
·The Applicant does not enforce Islam with her children and accepts that they are brought up in Australia and can choose their religion. She is modern-minded and wants to support her children in life.
·The Applicant is scared that she will not be able to protect herself or her family if she returns to Turkey because her brothers are very abusive and will hurt them.
·The Applicant feels torn between her husband and her [daughter] as her husband wants to move on with their life while [her daughter] refuses to depart Australia and adopt a new life in Turkey.
·The Applicant has been the main supporter of [her daughter] during the past 5 years. [Her daughter] displayed signs of self-harm on many occasions, which has been able to be controlled for the past 3 years. This began when [her daughter] found out they needed to return to Turkey.
·The Applicant wants her daughter to be safe and more discreet about her chosen religion as the consequences to the family will result in serious harm if anybody in Turkey found out about their religious beliefs.
·The Applicant’s [daughter] does not agree with her parents and does not want to conceal her identity.
The Tribunal has before it the following information:
·A submission from the Applicants’ representative, containing a separate statement from the first-named Applicant, dated 10 July 2023
·Letter from psychologist [named], dated 7 May 2019
·School report cards for [named applicants] from [named] School, dated 11 December 2018
·Turkish National identity cards for each Applicant
·[health care] card for the family
·Australian National Police Certificates for the second and third-named Applicants, dated 9 April 2018
·Turkish passports of each applicant
·Turkish family composition household booklet
·[bank] accounts balance for the second-named Applicant, dated 22 March 2018
·Republic of Turkey Criminal History Certificate English translation, dated 5 April 2018
·10 photos of the Applicants in various settings
·Article titled ‘We Do Not Accept No Legal Changes That Will Legitimize Rape, Early and Forced Marriages And Child Abuse!’ from UNICEF, UNFPA, UN Women and UNDP Statement on the Draft Bill on sexual abuse against children, dated 21 November 2016
·Draft form of submission from the Applicants’ representative dated 2 November 2017
·Submission from the Applicants’ representative to the Department of Home Affairs, undated, handwritten statement from the first-named Applicant, [Invoice] emailed on 25 April 2019
Country Information
The Tribunal has considered the DFAT Country Information Report for Turkey, dated 10 September 2020, including in respect to sexual orientation and gender identity as follows:
Sexual Orientation and Gender Identity
3.83 No legislation in Turkey prohibits sexual activity between people of the same sex: the Ottoman Empire decriminalised sodomy in 1858. The legal age of consent for all sexual acts is 18 years, which includes sexual acts between people of the same sex. Transgender individuals can legally change gender, although a court must grant permission based on a medical report. Legal gender reassignment is conditional upon the individual remaining unmarried and undergoing surgery and sterilisation. Legislation does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity in social institutions, government offices or corporations. The law does not guarantee LGBTI individuals certain rights enjoyed by others, including but not limited to marriage and associated partnership benefits such as retirement, inheritance, insurance, social security and access to the corpse in case of death.
3.84 Human rights groups report police have used legal provisions relating to ‘offences against public morality’, ‘protection of the family’ and ‘unnatural sexual behaviour’ to justify harassment of lesbian, gay, bisexual, transgender and/or intersex (LGBTI) individuals. Police harassment against transgender sex workers is reportedly common, often to extract bribes. No legislation prohibits hate crimes against LGBTI individuals. Human rights groups claim this leaves LGBTI individuals vulnerable to street crime and general violence – one NGO that tracks these cases reported 62 hate crimes in 2018, which it claims is consistent with previous years. Article 29 of the Criminal Code allows for the mitigation of sentences, including assault or murder, if the defendant has been provoked by an ‘unjust act’. Human rights groups claim judges have used Article 29 to mitigate sentences in cases of murder of LGBTI individuals.
3.85 A strong societal taboo exists against LGBTI issues and individuals. However, recent annual polling by Kadir Has University shows an increase in support for equal rights for LGBTI individuals. In 2020, 45 per cent of respondents thought LGBTI individuals should have equal rights, up from 36 per cent in 2019 and 33 per cent in 2016. In 2018, 55.3 per cent of respondents said they would not want an LGBTI neighbour, in 2019 this dropped to 46.5 per cent.
3.86 Pro-government media and high-level officials, including President Erdogan, frequently make derogatory comments and statements about homosexuality. During the COVID-19 pandemic, the head of the Diyanet said at a Ramadan sermon that Islam condemned homosexuality because it brought disease, and that thousands of people were exposed to HIV each year. The comments were supported by President Erdogan and several cabinet ministers.
3.87 Human rights observers report LGBTI individuals often feel the need to hide their sexual orientation or gender identity at work, and those who do not (or cannot) may face negative repercussions. High unemployment rates in the economy as a whole make LGBTI individuals reluctant to complain about discrimination, for fear of losing their livelihoods. Turkish employment law allows the dismissal of a government employee who is found ‘to act in a shameful and embarrassing way unfit for the position of a civil servant’, while other statutes criminalise the undefined practice of ‘unchastity’. Human rights observers report employers have used these provisions to discriminate against LGBTI individuals. Social stigma against HIV/AIDS leads many LGBTI individuals to avoid testing for fear the results may be used against them.
3.88 The societal situation for LGBTI individuals varies considerably according to location and socio-economic level. Many LGBTI individuals live openly and safely in wealthier neighbourhoods in major cities, particularly Istanbul. However, those at lower socio-economic levels residing in poorer and rural areas, particularly in Anatolia, are less likely to be able to do so because of the more conservative values that prevail in these areas. Both gay men and lesbians face considerable social pressure to enter into a heterosexual marriage and produce children.
3.89 There are a number of prominent NGOs in Turkey that work to promote the rights and interests of LGBTI individuals, including in Istanbul, Ankara, Izmir, Adana and other major cities, and unofficial groups in smaller cities and university campuses. Many, however, report difficulty finding office space due to discrimination from landlords; official harassment in the form of frequent and onerous audits under threat of large fines; and the refusal of university authorities to permit groups to organise on campus. Like other civil society organisations, LGBTI groups faced increased operating restrictions under the state of emergency, and scaled back their advocacy activities as a result. A ban in place since November 2017 by the governor of Ankara prohibiting LGBTI public events such as cinema, theatre performances, panels, interviews and exhibitions was declared illegal in April 2020 by an Ankara Administrative Court. However, in practice the ban in Ankara and many other provinces persists as officials refuse permission on a case-by-case basis, citing security concerns. In the months following the overturning of the ban, police used water cannons, rubber bullets and tear gas to break up Pride Month gatherings. Authorities have banned the Istanbul Pride march on public order and security grounds annually since 2015. The march had previously run for more than a decade and, with tens of thousands of participants, was one of the largest LGBTI events in the Muslim world.
3.90 LGBTI prisoners and detainees are vulnerable to physical violence, harassment and denial of medical services (see Conditions in Detention). LGBTI prisoners often seek medical clearance to move to isolated containment cells on grounds of mental or physical illness. Other LGBTI prisoners have meanwhile complained about the use of solitary confinement as inhumane treatment.
3.91 DFAT assesses LGBTI individuals (and those perceived to be LGBTI) face a moderate risk of societal discrimination, which may include violence. This risk may vary according to geographic location, socio-economic level and personal and family circumstance. Traditional views about sexuality and gender that continue to prevail throughout Turkey may restrict LGBTI individuals’ participation in the workforce and broader community.

In addition to the DFAT Country Report information, the Tribunal has also had regard to more contemporaneous media reports.
The Human Rights Watch Report, 30 June 2022 - Turkey: Mass Arrests, Anti-LGBT Violence at Pride[1], reveals the following:
[1] police attacked and arrested hundreds of people at the Istanbul Pride March on June 26, 2022, in a sweeping display of violence and discrimination against lesbian, gay, bisexual, and transgender (LGBT) people, Human Rights Watch said today. The authorities also arrested journalists reporting on the event.
The number of arrests was three times the total during the previous seven Istanbul Pride marches combined. Thirty-four of those arrested were youth under 18, according to Kaos GL, a Turkish LGBT rights group. Local officials had banned the march, citing security concerns and the need to uphold public order. Istanbul Pride, which at its peak in 2014 hosted upwards of 100,000 participants, has been banned since 2015. Despite this ban and a seven-year history of anti-LGBT police violence, LGBT activists took to the streets in protest and to commemorate the 30th Istanbul Pride.
“The Turkish government’s crackdown on Istanbul Pride is the latest in a brutal campaign against LGBT rights activism and freedom of expression,” said Kyle Knight, senior LGBT rights researcher at Human Rights Watch. “Turkish authorities have a responsibility to protect LGBT people and journalists alike, but instead the authorities have acted with aggression and cruelty.”
Before the Pride march, local officials shut down metro stations, ejected people from cafes, and preemptively arrested 52 people just before the parade started. As it began, metal barriers and lines of police in riot gear cordoned off the streets. The journalists’ union, DISK Basin-Is, said that the police beat “many” participants in the march. Police also attempted to prohibit journalists from photographing or recording the event – including by detaining a photographer from Agence France-Presse.
Various human rights organizations reported on Twitter that activists were held in vehicles without air-conditioning for hours and were denied access to food and water. Additionally, Kaos GL reported that lawyers attempting to free those arrested were met with police aggression, prolonging victims’ detention. Some of those arrested were kept in detention overnight, though a robust network of lawyers worked with activists to ensure that all detainees were released within a day.
Earlier in June, at an event celebrating the start of Pride Month, police detained members of two LGBT groups, Istanbul LGBTİ+ Onur Haftası, and Trans+ Korteji, in the Kadıköy district of Istanbul. Trans+ Korteji tweeted that officers at the Vatan Police Station physically harmed the activists, and shared photographs of their bruised wrists and legs.
Similar crackdowns at Pride events have occurred across Turkey this June. Police shut down a film screening that was part of the town of Datça’s inaugural Pride week and physically intervened with those who attempted to make a statement to the media. A dozen people were detained at Izmir’s 10th annual Pride march. In Ankara, police used excessive force and fired pepper balls to break up a student-organized Pride march hosted by a local university.
Previously, the Ankara governor had banned all LGBT events and public LGBT-related discussions in the province from 2017 to 2019. A court lifted the ban in April 2019, emphasizing that authorities have a duty to take security measures to protect peaceful assemblies and events – even if there are concerns that such activities may provoke a reaction – rather than simply to ban them. In Istanbul, the prosecutor filed a lawsuit against 19 protesters who joined a Pride march in 2021; this criminal case is still pending.
The crackdowns at this month’s Pride events follow a series of efforts by Turkish officials to quelch LGBT rights activism. Turkish authorities are pursuing two lawsuits against the Association for Supporting Tarlabaşı Community Center (TTM), an organization that serves women and children, after they organized an event to address issues related to LGBTI+ children in June 2021. Following this event, conservative media outlets opened a smear campaign against TTM, claiming it was perverse and corrupting children.
Subsequently, the Interior Ministry began auditing TTM, which prompted the authorities to file the two separate lawsuits against the organization, seeking to dissolve it. The Istanbul Chief Public Prosecutor’s Office is pursuing the cases on the basis that TTM has become “illegal and immoral.”
In March, at Women’s Day celebrations across the country, participants reported that police prevented people from bringing rainbow-colored objects, LGBT flags, or LGBT-supportive banners to demonstrations and attempted to stop trans women from joining assemblies. At a daytime assembly, police detained five trans women along with four other women who tried to stop the arrests. The same day, Fahrettin Altun, President Recep Tayyip Erdoğan’s communications director, made an anti-LGBT speech, saying that “Families and children [are] targeted through … tolerance for homosexuality propaganda” and calling homosexuality “ugliness.”
In February, an appointed rector closed down a prestigious university’s LGBT club after weeks of protests against the action, and government officials called students who were arrested for an anonymous artwork with LGBT flags “perverts.”
In 2020, the head of Turkey’s Religious Affairs Directorate gave an anti-LGBT sermon about the Covid-19 pandemic. For the last two years, university students have been prosecuted for participating in a campus Pride march in 2019.
“While LGBT rights activists have demonstrated incredible courage and tenacity in the face of government brutality, they should not have to risk their well-being to exercise their fundamental rights,” Knight said. “The government should defend the right to freedom of expression, including by immediately ceasing all violence and discrimination against LGBT people and groups.”
Challenges for LGBTQ persons have continued in 2023. A 12 June 2023 report from AL-Monitor[2], indicates that:
Pressure has been growing on LGBTQ activists in recent years in line with Turkish President Recep Tayyip Erdogan’s aggressive push to promote conservative Islamic values in society. The results are mixed. A recent survey by the International Institute of Islamic Thought revealed that piety is declining among young Turks, particularly among university students who advocate for secularism and LGBTQ and women’s rights more than any other of those polled.
It is therefore unsurprising that many LGBTQ clubs at universities have been shuttered under orders of the government in recent years, though some continue to operate under less-obvious names.
Since 2014, Pride parades have been formally banned in major cities, most notably in Istanbul where massive crowds would congregate unhindered. Today, police violence to disperse and prevent Pride marches is sanctioned by the Interior Ministry.
Throughout his election campaign, Erdogan lashed out at LGBTQ people, calling them “deviants” who spread like “the plague.” His pro-secular rival, Kemal Kilicdaroglu, was one of them, Erdogan claimed, and called homosexuality “a poison injected into the family.”
“When the hate speech comes from the top, it filters to the bottom, allowing police to use force against us and encouraging vigilantes to take the law into their own hands,” said Yildiz Tar, a gay activist and television commentator. Like many, they aired worry that the government would push legislation targeting his community.
Unlike many Muslim-majority countries where same-sex relations and “imitating the opposite sex” are criminalized, in Turkey, they are not. Some of Turkey’s most revered stars are cross-dressers, such as the late singer Zeki Muren and Bulent Ersoy who broke fast with Erdogan at an iftar dinner in 2016. Indeed, it is frequently rumored that several members of the president’s inner circle dating back to his days as Istanbul’s first Islamist mayor in the early 1990s are either bisexual or gay. “Turkish society is far more liberal than it is credited with,” Tar said.
But there is a conservative backlash and it is by no means unique to Turkey. In Russia, Poland, the United States and Hungary, populist leaders are following a similar trajectory of whipping up homophobia. Even as Erdogan accused his political rivals of being moral degenerates, the opposition Mayor of Ankara Mansur Yavas was berating him for allowing “a great number” of LGBT organizations to be established since his Justice and Development Party (AKP) rose to power in 2002 — some 14 of them, the mayor groused.
[2] >
On 26 June 2023, Reuters Reported that[3]:
[3] speeches targeting Turkey's LGBT community during last month's election have left some living in constant fear of police raids and even planning to leave the country.
Ahead of the first vote and runoff, which President Tayyip Erdogan won, he repeatedly attacked "perverse" LGBT groups and vowed to strengthen and protect traditional family values.
Some worry that such intimidation will be amplified during Erdogan's new five-year term, including a possible legal crackdown. Detentions are again expected at Sunday's Pride parades, which draw hundreds of people onto the streets despite being banned.
Bekir, 21, a law student, said that unlike in previous years he and his gay partner now lived in fear that a complaint by a neighbour in their apartment complex could lead to a police raid.
The discrimination faced by the LGBT community has convinced the couple to plan to leave Turkey, he said.
During the campaign, Erdogan's Islamic-rooted AK Party accused the opposition alliance, which pollsters had tipped to win, of being "pro-LGBT".
"The opposition lost and our fears came true. Fleeing looks like the only solution, which is so upsetting," said Bekir, who declined to give a full name.
Reuters spoke to seven other people recounting similar plans to leave and citing LGBT friends who had already left.
AK member of parliament Rumeysa Kadak said LGBT people were protected in the country.
"When it comes to LGBTQ people living in Turkey, we have never interfered in anyone's lifestyle or personal choices, which is also guaranteed by the constitution," she said on television after the runoff vote.
However, some rights defenders say that hatred against Turkey's LGBT community has grown since 2015, the year that the Istanbul Pride parade was banned over what the authorities called "security and public concerns".
More people are leaving due to increased government pressure, feeling their lives are in danger, said Mahmut Seren, a lawyer and LGBT rights defender, without giving detailed numbers but citing anecdotal evidence from his work.
"Turkey has never been the perfect country for the LGBT community but now people feel insecure," Seren said.
'MORAL VALUES'
Community members and activists who Reuters spoke to said discrimination had never been so intense and open.
On June 7, police shut down the screening of the film "Pride", about solidarity between gay activists and striking miners in 1980s Britain, by cordoning off the Istanbul street where the Science Aesthetics Culture Art Research Foundation had invited people to view it.
Cuneyt Yilmaz, a rights advocate, was preparing to make opening remarks that day when he said he found himself trapped inside the building. He said police officers threatened to arrest him and three others when they wanted to exit.
Outside the building, eight were detained, Yilmaz said.
The district governor said that the screening was against "national and moral values" and could damage the public peace.
Matthew Warchus, the British director of "Pride", said he felt solidarity with Turkey's LGBT community.
The film, he told Reuters, "is a hymn to courage, compassion, and tolerance. My message to those opposed to it being viewed is simply 'There is nothing to fear except fear itself'".
Rights advocates said the campaign rhetoric amounted to hate speech and they worry about possible legal changes that could criminalise LGBT activism, as well as more physical violence against the community - despite no attempt to revamp legislation since Erdogan's win.
Last year, authorities blocked hundreds of people from gathering for Istanbul Pride and detained dozens.
Istanbul Governor Davut Gul said on Twitter this month that any activity threatening the traditional family structure would not be allowed.
A picnic organised by UniKuir, an LGBT group opposed to discrimination based on sexual orientation at universities, was banned and two students were detained this month in the Aegean coastal city of Izmir.
The New Welfare Party, a small Islamist party that endorsed Erdogan in the election, targeted the event on social media. Melih Guner, its youth branch leader, said it would stand against all "deviant structures" and "never allow this immorality".
Some pro-government media outlets call some LGBT organisations "terrorist groups" and criticise the European Union for funding them.
Any closure of LGBT organisations is a "real threat" for Turkey's civil society, a European diplomat told Reuters.
Yilmaz, the LGBT rights advocate, said they had never been targeted like this before. "We are frightened but we will not leave the streets," he said.
Overview
The Applicants first arrived in Australia [in] November 2012, as a family unit, on Temporary Work (Skilled) visas (subclass 457) visas.
Unfortunately, and through no fault of their own, the Applicants lost their potential pathway to permanent residency when the director of the second-named Applicant’s business visa sponsor died. The intention of the Applicants was to remain in Australia on a Subclass 457 visa, which allowed for a possible pathway to permanent residency. Following the death of the director of the sponsoring company, the nominated position in which the second-named Applicant was [working] was refused., and with no approved nomination, the second-named Applicant no longer met the criteria for a Temporary Business Entry (Class UC) visa, resulting in the Tribunal (differently constituted) refusing the Applicants’ visas on 19 February 2019.
The Applicants then applied for the protection visas now under review, on 25 January 2019. The Tribunal has considered whether the second, third, fourth and fifth-named Applicants are owed protection. The evidence before the Tribunal is, in relation to these claims, exceedingly weak and unpersuasive. It is clear that that the application before the Tribunal was made by the Applicants in desperate circumstances, following their inability to obtain further business visas.
The first-named Applicant’s claims
As it was reasonably clear to the Tribunal that the first-named Applicant’s claims were the only claims before the Tribunal that had any prospect of success, the focus of the Tribunal hearing was on these claims, in particular the claims made by the first-named Applicant to be a lesbian. If the first-named Applicant, who is [age]-years of age, was entitled to protection, the remaining members of her family unit would also be entitled to protection. The application before this Tribunal is of a markedly different nature to the one that was before the Department, as a result of the effluxion of time, and the first-named Applicant’s forming a view in relation to her sexual preferences as she entered adolescence.
The Tribunal found the first-named Applicant to be a courageous and credible witness. She has been forced, through circumstances outside her control, to reveal her sexual preferences, and deeply personal matters, to the Tribunal in circumstances where she has not publicly revealed these matters. The delay in her making of her claims is entirely understandable in circumstances where the first-named Applicant is a [age]-year-old young woman, who is just discovering who she is, and which persons she is attracted to, as she finds her own place in the world. There was no need for her to reveal matters relating to her own sexuality until finding herself before this Tribunal; hence the delay in the making of the claims is justifiable.
The first-named Applicant wanted to speak to the Tribunal privately, as she wanted to raise the matters involving her childhood sexual assault, and sexual preferences, outside the presence of her parents and younger siblings. The Tribunal explained to the first-named Applicant that it owed all Applicants procedural fairness, and that it may have become necessary for the Tribunal to make the other Applicants aware of her claims. This distressed the first-named Applicant tremendously, and ultimately, the Tribunal took her evidence in private, observing that all Applicants would be able to obtain a copy of the decision, and the hearing recording if they chose to.
Firstly, the Tribunal understands attending a Tribunal hearing is stressful for any applicant. However, for the first-named Applicant, the Tribunal recognises that the stress occasioned by the need to reveal these very personal matters to a perfect stranger (the Tribunal) would have been a very confronting experience. The Tribunal is mindful of the evidence before it from the first-named Applicant’s psychologist indicating that she has experienced considerable distress because of her circumstances – facing the prospect of returning to a life in Turkey that looks nothing like the one she has enjoyed in Australia since she arrived as a [age]-year-old. The first-named Applicant explained that she could not imagine a life for herself in Turkey, and that her parents were now broken, and resigned to returning.
The first-named Applicant has kept these very personal matters to herself, and not wanted to find herself in a context where she needed to speak about them. The first-named Applicant has done her best to live with the traumatic experience of childhood sexual assault by a trusted family member, with whom her family has continued contact. Whilst this does not directly relate to the first-named Applicant’s need for protection, without question it has impacted her view of the world, and in particular, the way that she sees and relates to men.
The Tribunal accepts the first-named Applicant’s evidence that she is presently exploring her sexuality with women, and feels safe with women. The first-named Applicant referred to herself as being a lesbian. As is the case with most [age]-years-olds, the Applicant is currently exploring her own sexual identity. This natural and sometimes fluid process would be impossible for her were she to return to Turkey. The Tribunal accepts that the country information establishes that she would have to repress this explorative process, and that this would cause her significant psychological distress.
The Tribunal accepts that the first-named Applicant has participated in Christian based activities, including attending church. However, the first-named Applicant agrees that this is largely because of the social nature of holiday-based activities, and as part of an effort to fit in with her Christian peers. The Tribunal does not accept that the first-named Applicant would face a real chance of serious harm were she to return to Turkey, on the basis of her being a Christian.
In view of the available country information, the Tribunal is satisfied that the first-named Applicant would face a real chance of serious harm based on her status as a young lesbian woman, and therefore her membership of a particular social group, namely as an LGBTIQ person from Turkey, should she return to Turkey in the foreseeable future.

The first-named Applicant is dependent upon the second and third-named Applicants for financial support, including the meeting of her housing, medical, and educational needs. She could not remain in Australia independently of her parents, as she has no financial means and is a [age]-year-old child who requires support as she becomes a fully-fledged adult.
For the reasons given above the Tribunal is satisfied that the first-named Applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other Applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that:
·The second-named Applicant is the first-named Applicant’s father;
·The third-named Applicant is the first-named Applicant’s mother;
·The fourth-named Applicant is the first-named Applicant’s brother; and
·The fifth-named Applicant is the first-named Applicant’s sister; and
The second, third, fourth, and fifth-named Applicants are therefore members of the same family unit as the first-named Applicant for the purposes of s 36(2)(b)(i). As such, the fate of the second, third, fourth, and fifth-named Applicants’ applications depends on the outcome of the first-named Applicant’s application. It follows that the other Applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first-named Applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the second, third, fourth, and fifth-named Applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named Applicant.
Bridget Cullen
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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