1923418 (Refugee)

1923418 (Refugee) [2023] AATA 4839 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mrs REYHAN OZDEMIR (MARN: 1573815)
CASE NUMBER: 1923418

COUNTRY OF REFERENCE: Republic of Turkiye
MEMBER:Bridget Cullen
DATE:11 December 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 December 2023 at 6.45pm
CATCHWORDS
REFUGEE – protection visa – Turkiye – religion – conversion to Christianity – physical assault – detention – mental health issues – punishment for church attendance – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 August 2019 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant who claims to be a citizen of the Republic of Turkiye (Turkiye), applied for the visa on 16 February 2018. The delegate refused to grant the visa on the basis that the delegate did not accept that the Applicant had engaged with exploring, converting to, and practising the Christian faith while in Turkiye. Although the delegate accepted that the Applicant was involved in Christianity following his arrival in Australia, the delegate found that there was no real chance of persecution if he returned to Turkiye, and therefore the Applicant was not a refugee as defined in the Act.
The Applicant appeared before the Tribunal on 1 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Partner A], the Applicant’s partner; and the [prominent] [Church Leader A] The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The Applicant was represented in relation to the review. The representative attended the Tribunal hearing, and made submissions on the Applicant’s behalf.
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
In determining whether the Applicant meets the refugee or complementary protection criteria, the key issues in this case are:
·Whether the Applicant converted from Islam to Christianity in 2015, while residing in Turkiye;
·Whether the Applicant’s engagement with Christianity in Australia is genuine;
·Whether the Applicant has a well-founded fear of persecution in Turkiye; and
·Whether there is a real risk of significant harm in Turkiye.
These issues, and the relevant country information relating to the practice of Christianity within Turkiye, are discussed below.
Country information
Religion
The most recent DFAT Country Information Report on Turkiye, dated 10 September 2020, states, in part, the following:
Contemporary politics in Turkey has been dominated by Recep Tayyip Erdogan, who has been President since 2014 after serving as Prime Minister from 2003. Erdogan, who comes from an Islamist political background, is the co-founder of the conservative Justice and Development Party (AKP), which has been in government since 2002. Under Erdogan’s early leadership, the AKP pursued liberal economic and socially conservative policies, and, following a now stalled application for membership of the European Union, shifted foreign policy priorities away from Europe and towards the Middle East and Asia. More recently, a constitutional referendum held in April 2017 transferred most executive and legislative powers to the Presidency and significantly removed checks and balances….
Domestic and international observers criticised the timing, process and conduct of the April 2017 referendum. The UN Office of the High Commissioner for Human Rights (OHCHR) expressed concern that restrictive measures under the state of emergency (see State of Emergency) in place during the referendum did not provide an environment conducive to a free democratic process. The OSCE noted the referendum treated the 18 proposed constitutional amendments as a single package, depriving voters of the opportunity to decide separately on each of the distinct issues featured in the amendments.
The Constitution contains extensive guarantees of fundamental human rights, including freedom of expression, association, movement, opinion, assembly and religion. Many constitutional rights are subject to exceptions on the grounds of public order and national security.
Article 2 of the Constitution defines Turkey as a secular state. Article 10 states all individuals are equal before the law regardless of their philosophical belief, religion, or sect; Article 15 states no one may be compelled to reveal his or her religion; and Article 24 guarantees the right to freedom of conscience, religious belief and conviction. The state has traditionally interpreted secularism to require state control over religious communities, including their practices and houses of worship. The Diyanet manages the practice of Islam while the General Directorate for Foundations (Vakiflar) manages all other religions.
The government does not maintain population statistics based on religious identity. Observers concur, however, that the overwhelming majority of Turkish citizens are Muslim, with most (75-80 per cent) being Sunni. There are 10-25 million people who identify as Alevi in Turkey, which the Turkish Government largely refuses to differentiate from Sunni Muslims. There is also a Shi’a Ja’fari community that claims membership of up to 4 per cent of the population, or around 3 million people, although numbers are difficult to verify. They live predominantly in the eastern provinces. Up to 500,000 Alawites reportedly live in the southern regions neighbouring Syria, particularly Hatay province (this number does not include Syrian Alawite refugees who have fled to Turkey since 2011).
Turkey’s non-Muslim religious communities are small. There are fewer than 150,000 Christians across various denominations, the largest of which are Armenian and Greek Orthodox, Syriac Christians, Jehovah’s Witnesses, and Protestants.
The Treaty of Lausanne (1923), which formalised the break-up of the Ottoman Empire and laid the foundation for modern Turkey, guarantees the rights of ‘non-Muslim minorities’. The government has traditionally interpreted this phrase as referring solely to the three major religious minorities in Turkey at the time, which were the Armenian Apostolic Orthodox Christians, Jews and Greek Orthodox Christians (the ‘Lausanne minorities’). The Lausanne minorities, whose populations have all decreased significantly through emigration since 1923, reside primarily in Istanbul and other major urban centres in western Turkey.
Turkiye on Special Watch List
A 2023 Report[1] prepared by the United States Commission on International Religious Freedom indicates that the United States Government, in 2023, placed Turkiye on its Special Watch List for engaging in or tolerating severe violations of religious freedom pursuant to the International Religious Freedom Act. The corresponding commentary, in part, says the following:
·The government has regularly inserted itself in the internal affairs of religious communities, interfered in leadership elections, and prevented religious minorities from opening places of worship and training facilities for religious leaders.
·Other religious communities, including Christians and Jews, also experienced instances of societal violence, intimidation, and the destruction or vandalization of their religious sites over the course of the year. In June, several persons attacked a Syriac family related to an alleged land dispute while the family hosted Syriac clergy members in their house. In July, vandals destroyed 36 headstones in the Jewish Hasköy cemetery in Istanbul. Remnants of the Islamic State of Iraq and Syria (ISIS)—which maintained a presence in Turkey—continued to pose a threat to religious minorities.
[1] 2023 USCIRF Annual Report
Conversion to Christianity by Muslims in Turkiye
The difficulties experienced by Christian converts in Turkiye extend back several years. A November 2020 Report prepared by the Country of Origin Information Services Section at the Department[2] indicates, in part, the following:
·Conversion to Christianity is not prohibited by Turkish law. Although converts from Islam can legally change their religious affiliation on their identity cards to Christianity, a December 2019 report has described this as ‘a difficult and stressful process’.
·The act of converting to Christianity from Islam could be seen as ‘insulting Turkishness’, which in turn could result in court cases and imprisonment, although the report does not cite any recent instances of this type of court action being taken against Christian converts in Turkey.
·Christian converts, particularly those who are church leaders in the southeast of Turkey or in rural areas, are sometimes the recipients of disrespectful treatment by the police and security forces because of their open Christian identity. It has been reported, however, that the primary source of adverse treatment towards Christian converts in Turkey comes from family, friends and community, and can include familial rejection, social shunning, pressure to return to Islam, loss of employment, and threats.
[2] Turkey: 20201080190801 – Christian Converts, Country of Origin Information Services Section at the Department of Home Affairs. 3 November 2020.
A May 2020 Christian Solidarity Worldwide report stated that:
Alevi Muslims, Bahai’s and Christians, particularly those who have converted from Islam, face daily societal pressures. Hate speech and occasional hate crimes targeting religious minorities have continued, including attacks on places of worship, with perpetrators generally enjoying impunity.
There has been a surge in the expression of anti-Christian sentiments in pro-government media, and there are increasing reports of incidents of bullying and intimidation against Christian students in schools. Educational books can fuel societal hostility against, and distrust of, religious minorities. For example, textbooks denigrate missionary activity and describe it as a means of dividing the nation.
In October 2016 American Pastor Andrew Brunson was arrested and accused of plotting to overthrow the government. He was formally indicted in March 2017 on charges including supporting the outlawed Kurdistan Workers' Party (PKK) and the Gulen Movement, which Turkey accuses of orchestrating the coup attempt in July 2016 Pastor Brunson was released following his fourth court hearing on 12 October 2018; however, Christians, and particularly converts to Christianity, have continued to be targeted with accusations of a variety of malpractices. In some cases, claims have explicitly sought to falsely associate Christians with Pastor Brunson.
A January 2023 Open Doors report[3] indicates the following in relation to “Persecution Dynamics” in Turkey for the reporting period 1 October 2021 – 30 September 2022:
The rise in total score was due mainly to an increase in reported violence against Christians, with the violence score rising from 4.6 to 5.7 points. Average pressure only increased very slightly to the level of 12.1 points. Although no Christians were killed during the WWL 2023 reporting period, a higher number of church buildings were damaged, desecrated, converted into mosques or otherwise attacked. In Turkey, Islam is totally blended with a fierce nationalism. Aggressive rhetoric from the government has left little space for other voices, including the Christian one. There is a high level of distrust towards Christians, especially in inland Turkey, making public outreach hard, and resulting in high levels of societal opposition.
[3] Open Doors International; Turkey Full Country Dossier, January 2023.
A 2019 media report[4] published in “The Conversation” in 2019, expressed a view that the future of Christians in Turkey was uncertain:
The conditions that produced the reformist moment in the 2000s radically changed in the 2010s.
Erdoğan reversed the liberal policies that he once initiated and took a populist authoritarian path. The rising populist nationalism changed the reformist attitude toward Christian minorities.
Today, conspiracy theories about non-Muslim minorities dominate the public sphere. At the root of these stories, Christians are depicted as collaborators with foreign powers to undermine the Turkish identity.
Andrew Brunson, a U.S. priest who lived in Turkey for more than two decades, was arrested for being a traitor in October 2016 and released only after the U.S. intervened in October 2018.
Debates that are often part of the public conversation such as converting the Hagia Sophia into a mosque make Christians feel that their heritage is overlooked.
Turkey is an important country for the history of Christianity, yet the future of Christian presence in Turkey, I believe, is under threat.
[4] Christians have lived in Turkey for two millennia – but their future is uncertain (theconversation.com)
A similar opinion was expressed in a 2021 article[5] authored by Lela Gilbert, Senior Fellow for Religious Freedom at Family Research Council and Fellow at the Hudson Institute's Center for Religious Freedom, published on the Newsweek platform:
Christianity once flourished in Turkey, until the Ottoman Empire's 1915 genocide of Armenians, Assyrians, Greeks and other Christians. Now the Islamist regime of President Recep Tayyip Erdogan and his neo-Ottoman agenda has magnified Turkey's anti-Christian hostility. Since a failed coup attempt in 2016, the regime intensified its scapegoating of Christians, while occasionally making deceptively amiable gestures toward them.
In July 2020, Erdogan officially declared that Istanbul's Hagia Sophia—beautiful mosaics and all—would once again become a mosque. Erdogan announced that this would gratify "the spirit of conquest" of Mehmet II, the Ottoman sultan who captured Constantinople from the Christian Byzantines in 1453, and turned the church of Hagia Sophia into a mosque.
That, and the transformation of Istanbul's beautiful Chora Church of the Holy Saviour, merged into a swelling stream of Turkish Christian churches being confiscated, shuttered, torn down, or converted into mosques.
Troubles within the Greek Orthodox patriarchate and a disputed election of the Armenian Orthodox patriarch have also sounded international alarms. But even more troubling are the enmity and abuse displayed by the regime toward Christians themselves, both as faith groups and individuals.
[5] Turkey's Christians Face Increasingly Dangerous Persecution | Opinion (newsweek.com)
The Hudson Institute, located in Washington DC, is a credible research organisation supported through tax deductible donations and various government grants that, “helps manage strategic transitions through interdisciplinary studies in defence, international relations, economics, energy, technology, culture, and law”. The Tribunal has removed the hyperlinked references from the quotation above, but observes that Ms Gilbert’s work is supported by credible research, and her Hudson Institute biography indicates that she has authored/co-authored more than 60 books on religious freedom.
The Applicant’s claims and evidence
Receiving country
The Applicant claims to be a citizen of Turkiye and has provided copies of his Turkish passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Turkiye. The Tribunal finds that Turkiye is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.
Third country protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Credibility
The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility[6], which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[7] A similar approach is taken in the Department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’)[9], which provides useful guidance for this Tribunal.
[6] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[9] UNHCR, re-issued February 2019 at 203–204.
Assessment of Applicant’s claims

The Applicant claims to have converted from Islam to Christianity in 2015, while residing in Turkiye. The Applicant says that his parents and brother were strict practising Muslims.
At the point in time that he says he converted, the Applicant was studying [Course 1]. He was already married, having met his wife [Wife A] during previous studies at [University 1] in 2005. The Applicant and [Wife A] married in 2014.
The Applicant said that, while studying, he met a [Country 1] student named [Friend A], who was on exchange from [Country 1]. As [Friend A] was a Christian and wanted to join a church, they began attending the [Church 1] together on Sundays. The Applicant says that he also began reading the Bible, and did research on Christianity. He attended many ‘conferences’ held at [Church 1], and also attended [Church 2] and [Church 3].
The delegate placed some focus on the Applicant having first told the Department that he met [Friend A] at [University 2], and then later saying that he met [Friend A] at [University 3].
While this is inconsistent, it is not material, and the information before the Tribunal also indicates that [University 3] was closed down [details deleted]. After this point, the Applicant was placed firstly at [University 4], and then subsequently at [University 2], from which he graduated in [specified year].
The Applicant claims to have lost contact with [Friend A] following the school closing down. The delegate did not accept that the Applicant’s claims to have been practising as a Christian, for the reason that they considered it:
“highly unusual that a person who had a close friendship with another person such that it had influenced them to alter their religion, in clear defiance of their family’s beliefs, would simply give up a friendship and all contact because the school they had both attended, closed”.
The Tribunal has taken a different view of the Applicant’s evidence about his alleged school friend [Friend A]. The Tribunal observes that University can be a time of exploration of beliefs and values, and that as a student allegedly from [Country 1], the closure of the school [Friend A] was attending would be a basis for his ending of the relationships he had at that school. The Tribunal considers the closure of the school that was the focal point for the Applicant’s alleged relationship with [Friend A] is a plausible reason for the conclusion of a University based friendship.
The Applicant also outlined difficulties that he and his wife [Wife A] had once they began practising Christianity in Turkiye. The delegate’s decision record outlines the substance of these difficulties, as expressed to the Department. The Applicant was consistent in his claims at interview, and in two sets of written statements provided to the Department. He claims as follows:
·His wife’s interest in Christianity grew, and she began attending church with the Applicant at the beginning of 2016;
·One day as they were leaving prayer, the Applicant and his wife were approached by a group of men and asked what they were doing in the church. He explained that they were Christians and at church for Sunday Mass. In reply, the men said that Muslims who converted to Christianity were sinners. The Applicant and his wife tried to run away, and one of the men grabbed his wife’s arm. The couple were dragged to an alleyway and hit; and
·The Applicant and his wife were informed by the group of men that they were undercover police officers, and they were required attend the police station, where they were held for 10 hours without food or water, and threatened that if they were seen at church again, they would be killed.
Following the episode in which the Applicant and his wife were allegedly held by police, the Applicant realised that he was not safe as a Christian in Turkiye and stopped attending church. His family did not offer support. He claims that his wife also stopped practising Christianity at this time, as she was in fear of her own safety.
The Applicant claims that prior to his interview, he provided a statement to the Department in which he expanded on his claims, including that:
·The applicant had positive conversations with his wife about converting to Christianity and his research about it made her curious. He started going to [Church 1] in 2016;
·One Sunday, his wife attended with him. They were stopped by three men when they came out of the church. They were asked what they had been doing and the applicant replied that they were Christians. The three men realised from how they spoke Turkish that the applicant had converted from Islam;
·One of the men squeezed his wife’s arm. The applicant shouted his wife is pregnant. They were pushed towards a quiet and narrow street. The applicant was punched very hard on the left side of his face and “became dazed”. His wife started screaming;
·The men told the couple they were police. They took the applicant and his wife to the police station and held them for about ten hours in a room, without food or water;
·The applicant realised that their lives were in danger. The incident damaged his relationship with his wife and she became scared;
·He and his wife thought about moving somewhere else but they didn’t because they knew they couldn’t change the thinking patterns of people around them in relation to Christianity;
·They sought refuge within their families who did not support them; and
·His mother and brother stopped seeing him. Friends stopped talking to them and neighbours called them sinners or demons. People gossiped about them.
The Applicant says that he was initially sent to Australia by his employer, to study, as they were planning to open a company overseas. However, they experienced financial difficulties, and changed their mind, following which the Applicant decided to apply for protection. He says that he did not bring his wife and [child] with him when he travelled to Australia to study, as he could not afford plane tickets for them. The delegate flags in the decision record that the Applicant did have funds available, which the Applicant conceded was the case in a post-interview submission.
The delegate also put to the Applicant that there was information before the Department that suggested he and his wife had separated before the Applicant travelled to Australia. This information is not before the Tribunal, as such it is difficult for the Tribunal to form a view about the strength of the information given it is not particularised and the source is unknown. The Applicant told the Department that he was not separated, and his wife was living with her family and under pressure to live as a Muslim. He said that he was sending her money and sent photographs from videocalls to demonstrate that they were still in contact.
Given the length of time that has transpired since lodgement of the Applicant’s protection visa application with the Department in 2018, his life has moved on materially. The Applicant has provided the Tribunal with a copy of the translated Family Court filing wherein his wife, [Wife A][named], initiated divorce in 2021, in Turkiye. In his written submissions, the Applicant claims that the divorce was meant to be finalised by September of 2022, but had been postponed until November of 2023.
The Applicant is now in a relationship with [Partner A], with plans to marry in future. [Partner A] gave evidence at the Tribunal of her relationship with the Applicant. The Tribunal accepts that the Applicant and [Partner A] are in a relationship.
The Tribunal thinks it very likely that the Applicant and his wife [Wife A] had separated before he left Turkiye for Australia. The Tribunal thinks it unusual that the Applicant, who had the means to pay for tickets, would leave his wife and young child alone in Turkiye while he studied English in Australia. However, in the absence of having clear particulars about the information that was relied upon by the delegate to form this view, and given that it relates to the Applicant’s credibility only, the Tribunal places no importance on the establishment of the particular facts surrounding the timing of the Applicant’s separation from [Wife A] in the overall context of his claims.
The Tribunal accepts that the Applicant was at least exploring Christianity and practising some elements of Christianity, during his time at University, whilst still residing in Turkiye.
Whether the Applicant’s engagement with Christianity in Australia is genuine
The delegate accepted that:
·[S]ince his first engagement with Christianity in Australia, the applicant has become a genuine Christian;
·I find that the applicant expresses his faith through communal worship at church, communal bible study, volunteering at church-related community activities and private bible study; and
·I find that the applicant is accepted as a member of the Christian community in Australia.
The Tribunal contacted, by telephone, [Church Leader A], with the Applicant’s consent at the hearing. Although not expecting to be contacted, [Church Leader A] gave evidence, which clearly demonstrated that he knew the Applicant well, and which supports a finding by the Tribunal that the Applicant has been a committed member of the Christian community in Australia since his arrival in 2018, a period of now more than five years.
[Church Leader A’s] evidence in relation to the way that the Applicant engages with Christianity was particularly helpful in assisting the Tribunal to understand the Applicant’s embracing attendance at a wide variety of Christian churches. The Applicant engages in religious practices of a Christian nature for the dual purpose of religious engagement, and also to feel that he is part of a community. The Applicant seeks to accepted, and one way that he achieves this is through the social engagement that finding like-minded persons to explore religious practices offers.
The Tribunal considers [Church Leader A] evidence to be credible, and finds that the Applicant’s engagement with Christianity in Australia is genuine.
Whether the Applicant has a well-founded fear of persecution in Turkiye.
While the Tribunal has some questions over the detail of the story the Applicant has told about his and his wife [Wife A’s] police station detention, the country information outlined above supports a finding that his claim is at least plausible. The Applicant has provided the Tribunal with a Psychological Assessment dated 10 July 2023, which indicates that the applicant began seeking treatment on 28 January 2020 for anxiety and depression. He has been diagnosed with Post Traumatic Stress Disorder, arising from his fear of returning to Turkiye and concerns he will be persecuted for his Christian beliefs.
The Tribunal finds that the Applicant was detained with his wife [Wife A] following their attendance at church, for the reason that they were engaged in the practice of Christianity. The Tribunal finds that the Applicant is suffering from PTSD as he fears persecution if he is required to return to Turkiye.
The Applicant’s father has died following his arrival in Australia. The Applicant’s evidence is that his mother, with whom he is in contact, advised him that his Muslim uncles blame him for causing his father’s death by inducing stress when he converted to Christianity.
The country information above indicates that over the last several years, Turkiye has been moving away from secularism to Islamic authoritarianism. In these circumstances, the Tribunal considers that Turkiye is becoming more Islamic and conservative and the risk of harm to the Applicant as a Christian is increasing, despite Constitutionally enshrined freedoms.
The Tribunal considers that the way in which the Applicant practices Christianity is likely to increase his risk of harm significantly. He is a gregarious, active and enthusiastic seeker of others with an interest in Christianity with whom he looks to share religious fellowship. His practice of religion is not one of quiet personal solitude, thereby increasing the risk that his religious practices are noticed and observed by others. His exploration in Australia has been expansive, and he is unlikely to be able to quietly practice without drawing attention to himself, were he to return to Turkiye. The Tribunal has formed the view, having read the numerous letters from the Applicant’s religious associates, and having heard the evidence of [Church Leader A], the Applicant, and [Partner A], that the Applicant is likely to quickly draw attention to himself.
Having considered all these factors individually and cumulatively, the Tribunal is satisfied that the Applicant fears being persecuted for reason of his deeply embedded and outwardly expressed actual or imputed religion (Christianity), and that there is a real chance that he would be persecuted, including being subjected to significant physical harassment and ill-treatment, including social isolation, if he returns to Turkiye now or in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of Turkiye and that effective protection measures are not available to the Applicant in Turkiye.
The Tribunal is satisfied that the applicant cannot take steps to modify his behaviour so as to avoid a real chance of persecution in Turkiye as modification would require him to alter his religious beliefs. The Tribunal finds that the persecution would be directed at him for the essential and significant reason of his actual or imputed religion (or lack of religion), that the persecution involves serious harm to him and that it involves systemic and discriminatory conduct in that it is deliberate or intentional and involves his selective harassment or ill-treatment for reason of his actual or imputed religion (Christianity).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Bridget Cullen
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(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.
…

[2023] AATA 4839

11 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction