1926729 (Refugee)

1926729 (Refugee) [2022] AATA 1315 (18 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926729
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Paul Windsor
DATE:18 March 2022
PLACE OF DECISION:  Melbourne
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 18 March 2022 at 10:34 am
CATCHWORDS
REFUGEE – Protection Visa – Turkey – membership of the particular social group – members of the Gulen movement – being a part of the Fethullah Gulen Cemaat (community or movement) – imputed anti-government political opinion – applicant’s fear of persecution is well-founded – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 17 September 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 Turkey, applied for the visa on 21 June 2018.
In his protection visa application the applicant indicated he was born in [Turkey] on [date], is ethnic Turkish, of the Islamic faith and has never married. He indicated he departed Turkey legally on [date] May 2017 on a Turkish passport issued [in] 2016 and arrived in Australia on [date] May 2017, entering on a student visa.[1]
[1] See the Departmental file.
In his protection visa application the applicant claimed he fears persecution in Turkey because he was part of the Fethullah Gulen movement. He states he was undertaking compulsory military service and was on duty and responsible for entry and exit into his army barracks on the night of an attempted coup by elements of the Turkish military. He claims he was attacked and injured by civilians on the night of the attempted coup and subsequently was exposed to significant harm by civilians and the government because he was seen as a supporter of the movement.[2]
[2] See the Departmental file.
While accepting the applicant has three uncles who are associated with the Gulen movement, and the applicant himself had some involvement with the movement in the past, the delegate refused to grant the visa on the basis that he did not accept the applicant was a currently active member and supporter of the movement and found he did not have an adverse profile and was not of adverse interest to the Turkish authorities. In reaching this conclusion the delegate found the applicant was not targeted during his time in Turkey; was able to depart the country; his passport was not cancelled and he was issued a new passport in Australia in [2018]; he was issued with a clear Turkish penal certificate in June 2018; and he had not been involved with the Gulen movement since arriving in Australia.
The applicant sought review of this decision on 23 September 2019. He provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 23 February and 16 March 2022 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of interpreters in the Turkish and English languages.
The applicant was represented in relation to the review.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection as set out in his protection visa application are summarised as follows:
·He fled from being persecuted in Turkey for being a part of the Fethullah Gulen Cemaat (community or movement).
·The Government declared the movement to be the Fethullah Gulen Terrorist Organisation (FETO). This meant civilians could take the law into their own hands, killing, beating and disgracing people from the movement without punishment.
·His uncle who was falsely imprisoned told his mother he should not return or he will be killed.
·During his compulsory military service he was in charge of entry and exit to his army barracks on the night of the attempted coup (15 July 2016). Civilians tried to enter the barracks calling the soldiers terrorists and traitors. He and many other soldiers were attacked and beaten. He was hospitalised for two days due to his injuries. After this the soldiers were constantly harassed, discriminated against and abused by police and civilians.
·After his compulsory military service he returned to his hometown where he had good employment arranged but was attacked verbally by friends and family. His parents were accused of raising a traitor and also targeted. He had no alternative but to relocate. He moved locations three times after the coup because he carried the stigma of being a traitor and everywhere he went he was abused, assaulted and tortured.
·He was introduced to the movement at a young age by his uncles, who are a similar age to him and are like brothers to him. They had lost their father at a young age and had been taken in and guided by the movement. He studied for three years at a [school] in preparation for university, staying at student housing. The movement wanted him to do Hizmet (service) like his uncles.
·One uncle, who was [an occupation], was imprisoned and stripped of his duties. Another uncle fled the country before the attempted coup as he was warned it was imminent. The applicant also obtained a passport but did not leave Turkey as he decided he should be safe and did not want to leave his family behind.
·He fears if he returns to Turkey he will be detained and suffer severe punishment, including torture. The government and civilians are trying to catch FETO supporters. Thousands of innocent civilians have been blamed and punished for no reason.
On 6 May 2018 (prior to an interview with the delegate held on 9 May 2018), the representative provided an undated statement of claims by the applicant. Additional relevant matters raised in this statement are summarised as follows:
·When he was in high school he spent his summer holidays with his uncles ([Mr C], [Mr B]and [Mr A]) and they introduced him to the Gulen movement. He attended weekly Thursday night meetings.
·He began receiving tuition at a centre run by the movement in around [a specified year], on the advice of his uncles, and was able to gain acceptance into a [degree].
·His uncle [Mr A] had become an abi (brother/teacher) in the movement and was responsible for providing financial support (collected from the community) and emotional support to students. He became [an occupation].
·His uncle [Mr B] went to [Country 1] to provide Hizmet [there].
·His uncle [Mr C] also was an abi at university.
·His uncles were all respected and liked in the community for the service they provided. He was also liked for being helpful and kind.
·In 2011 the movement started to experience problems with the government. Recep Tayyip Erdogan made accusations against the movement after he was accused of money laundering. He sought revenge on the movement and began to shut down or confiscate its businesses and institutions.
·At the start of May 2016 his uncle advised him to obtain a passport urgently and leave Turkey as things were bad. He obtained a passport but did not leave as he was scared to run away from his army duties and become a fugitive where he could be caught by the authorities straight away.
·When the attempted coup occurred on 15 July 2016 Erdogan called on citizens to take to the streets to protect the country from being taken over. He was injured trying to prevent citizens from entering the army base. His commanding officer defused the situation by firing shots in the air. He was treated for his injuries for two days at the army base hospital.
·He was interrogated about missing weapons used in the coup attempt. He was beaten, left without water for the entire day and not provided with any food. He and his family were also accused of being traitors. When released to go back to his quarters that night he found they were using the same tactic on all the questioned soldiers.
·He was relieved from his duties on [date] August 2016. When he returned home he found the local community had turned against him and he was being discriminated against.
·His uncle [Mr A] was imprisoned for approximately 8 months for being associated with the movement and was no longer allowed to continue as a [occupation].
·His uncle [Mr C] was also imprisoned for 7 months and was tortured.
·His uncle [Mr B] was the only one who was able to flee Turkey.
·He felt he and his family were at risk if he remained living at home. Every time he tried to find employment he was knocked back. He managed to find a position in Islamabad [and] began work there on 4 October 2016, but his employment was terminated on 3 January 2017 because he did not agree with Erdogan and his punishments.
·Wherever he went he faced extremists trying to hunt down Gulen movement followers and take the law into their own hands. People were being bashed in the street with no protection from the police. The secret services were investigating and taking away followers. He was terrified and needed to escape.
·When the government announced a referendum to give Erdogan more power he knew he had to leave Turkey so applied for a student visa at the start of 2017, to undertake [specified] classes. He planned to be away for at least a year until things settled down. The situation deteriorated, however, so he applied for a new student visa, to study [a specified course], which was granted.
·His sponsor withdrew his financial support for fear of being penalised by the government. This caused the applicant to have a mental breakdown.
·He fears if he returns to Turkey he will be detained and imprisoned like his uncles. Some people from the army base have been detained. Having had a passport issued before the coup is enough for him to be locked away for life. If he returned he could not stay silent in the face of accusations as this would affirm the government’s claims of Gulen movement followers being traitors and part of a terror organisation.
A range of supporting documents were provided in the days before and after the interview with the delegate, including copies of two receipts for donations to the movement; a letter to the applicant, purportedly from his uncle, [Mr A], advising him not to return to Turkey; personal documents (including the applicant’s family book and military discharge document); photos, decrees, and various country information regarding the Gulen movement and the government’s actions against the movement.
On 19 May 2019 the representative provided further documents in relation to issues raised at the interview with the delegate. In a covering email the representative commented that the applicant having obtained a passport while on duty for the army and just before the attempted coup is enough evidence in itself for him to be imprisoned for life. The representative also comments regarding two properties the applicant indicated he has in Turkey, which he claimed were used by the Gulenist movement to provide services for students. She states that a rental agreement has been made with a third party for maintenance of the properties to protect the applicant in case of government investigations. She states that while gatherings at the properties had ceased, they have now recommenced in secret. Due to the risk of harm to the applicant and others, however, all evidence relating to activities at the properties, including books, has been destroyed. The representative also comments on government actions against lawyers who represent people accused of being supporters of the Gulen movement, and overcrowding in Turkish prisons due to the number of people being detained.
On 17 October 2021 the representative made submissions to the Tribunal in support of the review application. These included a much more detailed written account of the applicant’s involvement with the Gulen movement dating from 2004, including his attendance at the [venues] run by the movement, the support and mentoring he received from the abis, and how his responsibilities expanded to include assisting new students and involvement in social and charitable activities. He outlined how the 2008-09 academic year was critical for him as he needed a high exam score to be accepted into [a] course his uncle [Mr A] had advised he should take and had indicated would enable him to be placed into employment benefiting the movement as soon as he graduated. While he undertook extensive tutoring to assist him to gain a high score, the applicant was unsuccessful in achieving a score sufficient to be accepted into his chosen course. Consequently, in 2009-10 he attended [one] year of intensive tuition. He indicated that the students were also schooled in how to act at university, and were advised that they should not disclose their involvement with the movement as some professors will give them lower marks if the professors do not approve of the movement. The applicant indicated that he continued activities on behalf of the movement while at university, including assisting students from low-income families and tutoring students who were having difficulties with their studies. He indicated that in July 2013 he purchased two apartments close to the university, with some financial assistance from his uncles and some assistance from the movement, and these residences were used to assist students who were participating in the community/movement to have stable accommodation and a place where they could gather.
The representative provided legal argument claiming the applicant has a well-founded fear of persecution if he returns to Turkey as a result of his membership of the particular social group comprising members of the Gulen movement. She cites a range of country information, including from DFAT; the Immigration and Refugee Board of Canada (IRB); Human Rights Watch; The United States Department of State (USDOS); the United Kingdom Home Office and various press reporting, regarding the extent of the Turkish government’s crackdown on members of the Gulen movement. The representative notes that the current DFAT Country Information Report states that ‘DFAT assesses those accused of membership of the Gulen movement face a high risk of adverse official attention, including arrest and prosecution’; and that the IRB quoted an authoritative source as indicating that even minimal contact with the Gulen movement is enough to attract persecution.
The representative also touched on reporting regarding the mass arrest (USDOS indicated the government had announced that 540,00 individuals had been detained over the three years since the coup attempt), detention, ill-treatment and torture of suspected members of the movement following the July 2016 coup attempt; enforced disappearances, including in a number of foreign countries; and that the publishing of lists of those dismissed from their employment, detained, arrested and/or sentenced, which are attached to emergency decrees, results in considerable ongoing social stigma and restrictions.
New evidence was also provided in support of the applicant’s claims, including:
·a copy of a court decision in relation to the applicant’s uncle, [Mr C], indicating he had been convicted and sentenced for his affiliation with the movement.
·Copies of photographs of the applicant with his uncles.
·Copies of documents indicating that an abi now living in [Country 2], [Mr D], had been in touch with the applicant in July 2019 advising him it was safe for him to attend meetings in Australia and introducing him to members in Australia.
·A support letter from [Organisation 1] in Victoria, Australia commenting on the applicant’s involvement with the foundation in Australia.
·A copy of a statement from the applicant’s uncle, [Mr B], who indicates he was granted asylum in [Country 3] [in] August 2021. He comments that the applicant attended Gulen schools and preparatory courses and participated in movement activities, and would be arrested if he returned to Turkey.
·A copy of a legal opinion from a human rights lawyer in Istanbul, indicating the applicant could face serious charges under current laws due to involvement in the movement and having found himself ‘in the middle of the unrest’ at the time of the coup attempt due to serving his compulsory military service at that time.
Findings and reasons
Applicant’s identity

On the basis of the copy of the applicant’s Turkish passport provided to the Department,[3] and noting the delegate’s findings in this matter, the Tribunal accepts that the applicant is a citizen of Turkey and that his identity is as he claims it to be. The Tribunal accepts that Turkey is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[3] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Turkey, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
In general, the Tribunal found the applicant to be a credible witness. At the hearing he spoke passionately and knowledgeably about the Gulen movement and the involvement of he and his three maternal uncles in the movement.
Background – the Gulen movement
DFAT indicates that the Gulen movement began as a religious movement in Turkey in the 1960s, based on the sermons of Muslim cleric Fethullah Gulen, a onetime radical Islamist preacher, now in exile in the United States.[4] The movement, also known as Cemaat (‘community’) or Hizmet (‘service’), transformed over the decades into a civil society movement involving religious, educational and social organisations. The movement has no visible, public formal structure, central hierarchy nor clear evidence of membership. The movement reportedly has an inner circle of activists and advisers to Fethullah Gulen and an outer circle of those who support Gulen’s teachings and the movement’s ideals, often graduates of Gulen’s education programs. Even further from the core is a cohort who have used products and services affiliated with the movement – sometimes without their knowledge – and otherwise have no ideological or political connection with the group.
[4] DFAT Country Information Report, Turkey, 10 September 2020, sections 3.34-3.37.
DFAT notes that Gulen and current Turkish President Erdogan had a political alignment for decades. In December 2013, however, Erdogan accused Gulen of being behind corruption allegations against several of his senior ministers. Authorities began targeting institutions and individuals believed to be affiliated with the Gulen movement, shutting numerous media outlets and firing thousands of police officers. The government issued an arrest warrant for Gulen in 2014, and officially designated the Gulenist movement a terrorist organisation in May 2016 under the assigned names ‘Fethullah Gulen Terror Organisation’ (FETO) and ‘Parallel State Structure (PDY), arguing that the Gulen movement was running a parallel movement within the civilian and military bureaucracy.
Assessment of claims
After careful consideration of all the available evidence the Tribunal accepts that the applicant was involved in the Gulen movement from 2004, when he was around [age] years of age. The Tribunal accepts the applicant’s evidence that his three maternal uncles, with whom he was very close (not having any brothers), were involved with the movement and were instrumental in the applicant becoming involved.
The Tribunal accepts that the applicant initially just attended Thursday night gatherings but over time his involvement in the movement expanded to include tuition at Gulen tuition [centres], culminating in him spending a full year [undertaking] intensive tutoring to enable him to gain entry to his preferred university [course]. The Tribunal accepts the applicant’s evidence that he did this on the advice of his uncle, [Mr A], because it was intended that, on completion of his studies, he would be placed in employment [in] a business owned by a member of the movement.
The Tribunal accepts that the applicant became involved in social and charitable activities (service) with the movement and over time became active in assisting more junior members of the movement. The Tribunal accepts that the applicant’s service continued while he was at university, assisting other students who were involved with the movement but were less well-off and/or were struggling in their studies. Given his background, the Tribunal accepts that the applicant purchased two apartments in his name, with financial assistance from his uncles and the movement, that were used to accommodate less well-off students from the movement and for meetings. Given the extent of the government’s crack-down on the movement, the Tribunal found less convincing the applicant’s claim that those properties are now again being used as meeting places for supporters of the movement. The applicant commented at the hearing that this is being done secretly and is not known to the general public.
The Tribunal accepts the applicant’s account of what happened on the night of the attempted coup on 15 July 2016. At hearing the applicant indicated that the army barracks where he was stationed was located in the east of Turkey and was responsible for distribution of weapons and ammunition to other army bases in that region of the country. The Tribunal accepts that he was injured when local civilians, responding to President Erdogan’s plea that they take to the streets to prevent the coup from succeeding, tried to enter the base. The Tribunal accepts that the applicant subsequently was detained at the barracks and interrogated for around 22 hours to establish whether he had any role in the coup attempt. The Tribunal accepts that he was threatened and mistreated over this time, being denied food and water and bashed. The Tribunal observed that it appears he was cleared of any wrongdoing as he was not charged with any offences or dishonourably discharged from the army, but was discharged on [date] August 2016 upon the completion of his compulsory military service (rather than ‘relieved of his duties’ as claimed in his statement of 6 May 2019). The applicant agreed that he was not dishonoured in any way but commented that the investigations remain ongoing in relation those accused or suspected of involvement, including in relation to those in the military.
The Tribunal queried why the applicant thought his having obtained a passport in [2016], [a few] months before the attempted coup, might cause him problems in the future given it would seem quite plausible that he might have been planning a holiday overseas on completion of his compulsory military service (in mid-August 2016). The applicant commented that he obtained the passport because he had received information that there would be a coup, some people left before the attempted coup and others left immediately after. He said if he returned now he believes he would be arrested and interrogated regarding his activities. Notwithstanding that the applicant was issued a clean penal record by the Turkish authorities in June 2018 and a new passport by the Turkish Consulate in Melbourne in [2018], given the broad extent of the crackdown by Turkish authorities in relation to suspected Gulenists since the applicant departed Turkey in May 2017 (as discussed below), the Tribunal accepts it is plausible the applicant would be detained and questioned on return to Turkey.
In this regard the Tribunal gives weight not only to the applicant’s own activities with the movement, but also gives significant weight to the activities of his three maternal uncles and the closeness of his relationship with these uncles. The Tribunal accepts that his uncle [Mr A] was dismissed from the [workplace] and convicted of offences relating to his involvement with the Gulen movement which resulted in him serving 8 months in prison. The Tribunal accepts that his uncle [Mr C] also was convicted of offences relating to his involvement with the Gulen movement which resulted in him serving 7 months in prison. The Tribunal notes that the documentation provided by the applicant indicates that [Mr C] was convicted under Crimes of Terrorism legislation of being a member of the Armed Terrorist Organisation FETO/PDY and sentenced to 6 years and 3 months. This was commuted and he was granted immediate release on [date] April 2017. When queried about this, the applicant commented that his uncle was released on parole but faces ongoing restrictions and has appealed to the Supreme Court. This is consistent with the document provided which indicates that [Mr C] is to be ‘kept under cautionary judicial control’, requiring him to report to relevant authorities three times a week, and is barred from traveling abroad. The Tribunal also accepts that the publication of the names of those convicted of offences under Crimes of Terrorism legislation results in ongoing stigmatisation and discrimination that impacts the capacity of the affected individuals to obtain work and accommodation.
The Tribunal accepts the evidence that the applicant’s uncle [Mr B], who was residing in [Country 1] at the time of the coup attempt, subsequently fled to [Country 3] where he recently was granted asylum. The Tribunal considers it is likely that he too would have been charged and convicted of terrorism related offences had he returned to Turkey.
The Tribunal accepts the applicant’s evidence at the hearing that, when he completed his compulsory military service, given the forced closure of businesses associated with the Gulen movement, there was no longer [a] position available for him in a business owned by a member of the movement. While noting DFAT’s advice that the coup failed because most of the military remained loyal to the government,[5] the Tribunal accepts that the applicant faced hostility from his local community in his hometown [and] was unable to find work there because local people were aware of his links to the Gulen movement. The Tribunal accepts, therefore, that he moved away, firstly to live with a one of his sisters, then to Istanbul where he lived for a time with an abi he knew from the movement, and then with another of his sisters. He indicated he applied for and obtained [a] job in October 2016 but was fired by the owner of the business in January 2017 when he expressed views critical of the government’s treatment of suspected members of the Gulen movement. He said the owner swore at him and told him he should be in prison too. The applicant indicated that he applied for an Australian student visa shortly after this incident.
[5] DFAT Country Information Report, Turkey, 10 September 2020, section 2.5.
Noting the additional evidence provided in October 2021, the Tribunal also accepts that the applicant has become involved in the [Organisation 1] in Australia. When asked about this at the hearing he indicated that when he first came to Australia he was fearful of spies who might be looking for information regarding people suspected of involvement in the movement, wished to establish a new life in Australia, and did not intend to get in touch with the movement. He said when [Mr D], who is an abi, contacted him from [Country 2] where he had sought asylum, [Mr D] told him there is no issue in Australia so it would be okay for him to participate in the movement here. He indicated that since then he has become more involved with the foundation including in relation to charitable activities during the COVID-19 related lockdowns. Given the applicant’s past history of support for the Gulen movement, the Tribunal is satisfied that this conduct was engaged in other than for the purpose of strengthening his claims to be a refugee (s 5J(6) refers).
Does the applicant face a real chance of suffering persecution involving serious harm for one or more of the reasons enumerated at s 5J(1)(a) should he return to Turkey
In considering whether the applicant would face a real chance of suffering persecution involving serious harm, for one or more of the reasons enumerated at s 5J(1)(a) of the Act, should he return to Turkey now or in the reasonably foreseeable future, the Tribunal has had regard to the applicant’s individual circumstances and relevant country information.
The current DFAT report states that, following the 15 July 2016 attempted coup, the government immediately blamed Gulen for orchestrating the attempted overthrow.[6] The government implemented exceptional measures after suppressing the attempted coup, including a State of Emergency which it extended seven times until 18 July 2018, and which gave the government enhanced powers, many of which it has retained.
[6] DFAT Country Information Report, Turkey, 10 September 2020, sections 2.5, 2.57, 2.61-2.62, 3.38-3.41 and 4.9-4.10
The state of emergency allowed the government to rule through decrees carrying the force of law, bypassing parliament (36 statutory decrees were issued under the state of emergency). It afforded legal, administrative, criminal and financial immunity to administrative authorities acting within the framework of the decrees. In November 2016, the Supreme Court ruled the decrees were not subject to judicial review. The state of emergency also gave security forces extensive powers to crack down on alleged supporters of the Gulen movement from within state institutions. Authorities have launched legal proceedings against 441,195 people on a variety of terrorism charges, including for being alleged Gulen supporters.
Authorities used state of emergency powers to remove large numbers of suspected Gulen supporters (and other political opponents) from the civil service, military, police, judiciary and academia, as well as expropriate private assets from suspected supporters. During the course of the state of emergency, authorities dismissed some 135,144 civil servants from various branches of the bureaucracy, and removed 5,705 academics from their positions. A very small number of those dismissed or arrested have been accused of actually participating in the attempted coup: the decisions are instead based on alleged membership of the movement and, for public servants, inappropriately obtaining public office. So far, with as many as 80,000 people arrested or detained, approximately 5,370 people have been tried in cases specifically related to the coup, and 1,524 have received life sentences. Throughout 2019 and 2020, dismissals from the public service continued as authorities found new ‘clusters’ of alleged Gulen supporters, particularly in the military and Ministry of Foreign Affairs.
In 2019, there were credible reports of disappearances and torture while in police custody of Gulen suspects who were former employees of the Ministry of Foreign Affairs. DFAT comments separately that despite relevant legal protections, human rights observers report torture and other ill‑treatment of detainees occurs in Turkish detention facilities, particularly as a means of extracting confessions or forcing detainees to denounce other individuals, although it notes that reports of torture and ill‑treatment are now significantly lower in number and severity than in the weeks following the failed coup.
Human rights observers have expressed concerns the government has not published clear criteria to link individuals to the Gulen movement. In some cases, the only evidence of ties to the Gulen movement has been use of the Bylock messaging application. Authorities have based other arrests and dismissals on financial transactions with the Asya Bank (closed by the government for its alleged links with the Gulen movement); membership of a trade union or association linked to the movement; rapid promotion in the public service or military rank; having a child attend a school associated with the movement; police or secret service reports (not made public); analysis of social media contacts and internet browsing history; or information received from colleagues or neighbours. Many of those arrested have not had access to the evidence against them, nor the opportunity to defend themselves. A Commission of Inquiry for State of Emergency Practices was established to review the dismissals, but has mostly upheld the original dismissal decisions.
Authorities have published lists of those dismissed and put markers against them in the registration system of the state social insurance system, significantly reducing their chances of finding alternative employment in either the public or private sectors, and stigmatising them socially. Those dismissed lose their income and social benefits, including access to medical insurance and retirement benefits, and many have had their passports cancelled. Various decrees specifically state dismissed civil servants ‘shall be evicted from publicly‑owned houses within 15 days’. Since July 2016, the government has seized or appointed administrators for approximately 1,000 businesses accused of having links to the Gulen movement. The businesses, which range from small shops to publicly traded companies, are worth an estimated USD12 billion.
DFAT assesses those accused of membership of the Gulen movement face a high risk of adverse official attention, including arrest and prosecution. In some cases this is justified: credible evidence may exist that they were involved in the July 2016 attempted coup, or inappropriately obtained or misused public office. In some instances, however, the burden of proof for membership of the Gulen movement does not meet credible evidentiary standards, and the accused have limited ability to defend themselves. Civil servants accused of membership are highly likely to face dismissal from employment without due process and face numerous official sanctions. Access to official recourse is slow. Those accused of membership of the Gulen movement where no credible evidence exists face considerable societal stigma and restrictions, particularly through the publication of their names.

DFAT also comments that critics of the Counter‑Terrorism Law note its definitions of ‘terrorism’ (Article 1) and ‘terrorist offender’ (Article 2) are broad and vague. Before the failed coup, human rights groups raised concerns that the Counter‑Terrorism Law could be used against political opponents, human rights defenders, and journalists, in particular for alleged ‘membership of a terrorist organisation’. The December 2017 report by the Special Rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment expressed concern over a new counter‑terrorism law (Law No. 6722 of 2016). Under that law, which applies retrospectively, executive authorities’ permission is required to prosecute any soldiers or civilians taking part in counter‑terrorism operations for any offences committed while carrying out their duties. According to the Special Rapporteur, the law grants counter‑terrorism forces effective immunity from prosecution, and renders investigations into allegations of torture or ill‑treatment committed by them difficult, if not impossible.
Given the relevant country information, and the Tribunal’s findings above regarding the applicants past and current involvement with the Gulen movement and his close association with his three uncles, two of whom have been detained and convicted of offences relating to their involvement with FETO/PDY, the Tribunal finds there is a real chance the applicant would suffer treatment amounting to persecution involving serious harm should he return to Turkey now or in the reasonably foreseeable future. The Tribunal finds the serious harm he faces includes detention, interrogation, torture, arrest, conviction and imprisonment for broad and vaguely defined terrorism related offences, even though the applicant has never been involved in what ordinarily might be considered as terrorism-related activities. The Tribunal finds that the persecution would be for the reason of the applicant’s imputed anti-government political opinion and membership of the particular social group comprising supporters and/or perceived supporters of the Gulen movement. The Tribunal finds that these are the essential and significant reasons for the persecution and that the persecution involves systematic and discriminatory conduct.
Real chance of harm must relate to all areas of the receiving country
S 5J(1)(c) of the Act requires that if the Tribunal finds the applicant faces a real chance of persecution involving serious harm if he returned to Turkey, that must relate to all areas of the country.
As the harm that the applicant fears is from the Turkish authorities as well as people in the broader Turkish community who are opposed to the Gulen movement, the Tribunal finds the real chance of harm extends to all areas of Turkey.
Availability of state protection
In this case, as the harm that the applicant fears is from the Turkish authorities as well as people in the broader Turkish community who are opposed to the Gulen movement, the Tribunal finds that effective protection measures are not available to the applicant.
Conclusion – refugee criterion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Paul Windsor

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.
…

[2022] AATA 1315

18 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction