1928958 (Refugee)

[2022] AATA 5067

1928958 (Refugee) [2022] AATA 5067 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Reyhan Ozdemir (MARN: 1573815)

CASE NUMBER:  1928958

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Sheridan Lee

DATE:20 December 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 20 December 2022 at 12:58 pm

CATCHWORDS
REFUGEE – protection visa – Turkey – imputed political opinion – military cadet imputed with association with Gulen movement – teachers and friends convicted, imprisoned and tortured – fear of harm from authorities and public – no personal involvement with attempted coup – departed on genuine passport – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a [age]-year-old man from Turkey. He completed high school in [Year 1] and went on to train as [role] in the Turkish [military] Academy from [date] until [July] 2016. The applicant was in his [training] when elements of the Turkish military launched an unsuccessful coup d’état against the Government on 15 July 2016. Students of the Academy were dismissed on 31 July 2016 and the applicant did not complete his training.

3. The applicant moved back to his parents’ home after the military school was closed. He worked as an intern of [job sector] from November 2016 to April 2017 in [City 1].

4. The applicant described himself as Sunni Muslim, but at the Tribunal hearing he said he wasn’t particularly religious.

5. The applicant arrived in Australia [in] October 2017 on a student visa. He completed general English language and academic English language courses in 2018. He applied for protection on 31 May 2018 on the basis that he would be persecuted in Turkey for his imputed political opinion as a military cadet at the time of the attempted coup.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   Claims and evidence

   Application for protection

7. Having reviewed the claims made on the application for protection form and accompanying documentary evidence, the applicant’s claims can be summarised as follows:

   ·the applicant was in his [number] year of training to be [a role] at the [military] Academy at the time of the attempted coup d’état in Turkey on 15 July 2016. Due to his position as [a] Cadet, he was accused of being a traitor to the country.

   ·Teachers and student friends from military school have been convicted of crimes, imprisoned, and tortured by the Turkish Government. Some have been murdered for being terrorists and a threat to national security.

   ·Students at the military academy were left hungry when food supplies stopped being delivered following the attempted coup. Electricity and water were cut off by the Government. The applicant and his friends went into the local town centre to find help; they were assaulted, and local stores would not serve them.

   ·The applicant moved back to his parents’ home after the military school was closed on 31 July 2016.

   ·The applicant hoped that the situation in Turkey would improve after he arrived in Australia and he could return to his family, however the situation deteriorated.

   ·The applicant was stripped of his right to graduate from military decor [sic] school. The applicant filed a complaint against the Government departments. The action was quickly dismissed. The authorities have failed to protect his rights.

   ·The applicant expressed fear that he would be harmed by members of the public or arrested and detained by authorities under anti-terror laws. He claimed that [a family friend] located an arrest warrant for the applicant.

   ·One of the applicant’s friends from the [Academy], [Mr A], was detained and treated badly by the Turkish authorities. He had been unable to contact [Mr A] since that time.

   ·The applicant’s [friend], [Mr B], had his throat slit on the day of the attempted coup. They [trained] together and came from the same city.

   ·The applicant’s [relative]’s home was searched in April 2019 by Turkish Authorities.

8. The applicant supplied the Department with a signed statement to provide further evidence in respect of his claims, a scanned copy of his military identification card, translated extracts of decisions issued by the Turkish Administrative Court, discharge document issued by [Military] Command and photographs of the applicant with his colleagues at the [Academy].

9. The applicant was interviewed by the delegate on 20 August 2019. An audio recording of the interview was provided to the Tribunal on the Departmental file. The applicant’s evidence will be discussed below where relevant.

10. The delegate accepted that the applicant received training at the Turkish [military] Academy in [City 2] for [number] years, however they were not satisfied that his profile would bring him to the attention of the Turkish authorities. The delegate felt that the applicant had embellished his evidence in respect of the treatment he received following the attempted coup. In particular, the delegate noted that the applicant remained in Turkey from August 2016 until September 2017 unhindered. In addition, he was able to depart Turkey using a genuine passport.

    Application for merits review

11. The applicant applied to the Tribunal for merits review of the decision to refuse his application for protection. A copy of the delegate’s decision was provided to the Tribunal with the application for review.

12. On 14 June 2022, the applicant’s representative made submissions on his behalf. The submissions provided an overview of the applicant’s claims and an update on the situation in Turkey.

13. The applicant appeared before the Tribunal on 21 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant’s oral evidence and the content of the submissions will be discussed below where relevant.

    Criteria for a protection visa

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.

    analysis and findings

20. The Gulen movement started as a religious movement in Turkey during the 1960s through the sermons of Muslim cleric, Fethullah Gulen. The Department of Foreign Affairs and Trade (DFAT) describes Gulen as ‘a onetime radical Islamist preacher.’[1] Gulen has been in self-imposed exile in the US since 1999 after recordings of speeches where he called on his supporters to infiltrate state institutions and wait for the ‘moment of change’ were released.

    [1] DFAT Country Information Report Turkey, Department of Foreign Affairs and Trade, 10 September 2020, p. 27

21. On 15 July 2016, elements of the Turkish military attempted a coup d’état against the Turkish Government. The coup failed as most of the military remained loyal to the Turkish Government and mass public protests against military intervention occurred.[2] The Turkish Government has since blamed Fethullah Gulen and his supporters for orchestrating the attempted coup, referred to as the Fethullah Gulen Terror Organization (FETO). The Government claims the Gulen movement was running a parallel state within the civilian and military bureaucracy. However, Gulen publicly condemned the attempted coup and denied any involvement.[3] Shortly before the coup, in May 2016, the Turkish government formally declared the Gulen movement a terrorist organisation.

    [2] DFAT Country Information Report Turkey, Department of Foreign Affairs and Trade, 10 September 2020, p. 8 

    [3] Turkey coup: What is Gulen movement and what does it want?, BBC, 21 July 2016 

22. Turkey declared a state of emergency following the coup that lasted until 2018. New anti-terror laws were introduced in 2018 which retained elements of the emergency decrees. The Government continued to crackdown on political opponents well after the end of the state of emergency using the existing and new anti-terrorism laws.[4] The crackdown has largely been targeted at members of the Gulen movement. Thousands of public servants suspected of being Gulenists were fired and affiliated institutions closed.[5] In 2020, Human Rights Watch reported that Turkish authorities had approximately 58,409 suspects on trial and 132,954 were under criminal investigation for links to the Gulen movement.[6] Only a very small minority of those arrested are accused of actually taking part in the events surrounding the attempted coup.

    [4] World Report 2021. Events of 2020, Human Rights Watch (HRW), 13 January 2021, pp. 666-673; 2020 Country Reports on Human Rights Practices: Turkey, United States Department of State, p.1, 30 March 2021; Freedom in the World 2021 - Turkey, Freedom House, 03 March 2021; Weaponizing counter-terrorism, Julia Hall, Amnesty International, 21 June 2021.

    [5] ‘The Remarkable Scale of Turkey's "Global Purge"’, Foreign Affairs, 29 January 2018.

    [6] World Report 2021: Events of 2020,  Human Rights Watch (HRW), 13 January 2021.

23. Statewatch reported in November 2021 that more than 150,000 people had been collectively dismissed from their employment and deprived of their liberty on a collection of terrorism charges using an algorithm designed to identify FETO associations.[7]

    [7] Statewatch is a non-profit making voluntary group founded in 1991 comprised of lawyers, academics, journalists, researchers and community activists across 18 countries. URL: Algorithmic persecution in Turkeys post coup-crackdown: The FETÖ-Meter system, Emre Turkut & Ali Yıldız, Statewatch, November 2021.

24. On 31 July 2016, the Turkish Government issued emergency decree 669 (KHK/669). This placed the armed forces under the control of the Defence Ministry and provided the Government with the power to control military schools and colleges. The applicant alleged that following the introduction of the emergency decree, he was stripped of his diploma and [rank] rights and given a diploma which states that the diploma was given with the ‘KHK 669’. The applicant alleged that this diploma labelled him as an affiliate to the failed coup attempt and restricted his opportunity to gain employment.

25. The replacement diploma was issued from [University 1]. The applicant said he had never attended this university, nor did he complete this degree.

26. In August 2016, the applicant filed a complaint with the Turkish Administrative Courts. However, the application was finalised with no investigation. The applicant found it difficult to secure employment with the diploma he was issued. He believed employers were cautious about hiring someone associated with the attempted coup. I accept that the applicant was a military cadet and had his degree issued under KHK/669.

27. The applicant said that he applied for a student visa to travel to Australia after the Government began locating and charging people associated with the Gulen movement in Turkey. At first the focus was on high-ranking individuals in the military, police, judicial system and public service. However, more people started to be arrested and accused of being associated with FETO. The applicant said he had several cadet friends that also applied to travel to Australia and later successfully claimed protection. The applicant arrived in Australia [in] October 2017.

28. In 2016, AI-Monitor reported that military schools in Turkey were being closed “because the government believes that they have been infiltrated by the so-called Fethullah Gulen Terror Organization (FETO) and that about 95% of the student body identifies with FETO”.[8]

    [8] Al-Monitor, Gulen movement's youngest victims speak out in Turkey, 3 August 2016, accessed at >

    The applicant supplied extracts of two articles relating to the imputed association of military students with FETO, translated by a professional translator, recognised by the National Accreditation Authority for Translators and Interpreters (NAATI). The first article was published on 7 October 2019 on OdaTV, a Turkish online news provider. The article was titled FETO affiliated Military student cases remain to be on a daily agenda. The second article was published on 1 August 2016 on TimeTurk, another Turkish news provider. The article was titled The Minister: 95% of the FETOist students are placed in the armed forces. Both articles report that the Turkish Government considers that most military students at the time of the attempted coup were affiliated with FETO.

29. While I accept that the applicant was not personally involved in the attempted coup, I cannot discount the possibility that the applicant would suffer harm as a result of his position as a military cadet at the time. In November 2021, it was reported that Turkey’s Interior Minister Süleyman Soylu gave evidence at a Planning and Budget Committee that a total of 319,587 people were detained and 99,962 arrested in operations against supporters of the Gülen movement since the attempted coup. Minister Soylu said that 22,340 people with alleged links to the movement were in prison, including both those who were serving sentences and those in pre-trial detention. A further 25,026 individuals were wanted on terrorism charges due to Gülen movement links.[9]

    [9] Stockholm Centre for Freedom, 22 November 2021, accessed at >

    Human rights observers have expressed concerns the Turkish government has not published clear criteria to link individuals to the Gulen movement. Authorities have based 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.[10]

    [10] DFAT Country Information Report Turkey, Department of Foreign Affairs and Trade, 10 September 2020.

30. After consideration of current information regarding the political situation in Turkey, I find that the applicant would face a real risk of persecution based on an imputed association with FETO. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    decision

31. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Sheridan Lee
    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.

    …