1936553 (Refugee)

[2023] AATA 1131

1936553 (Refugee) [2023] AATA 1131 (7 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Phillip Silver

CASE NUMBER:  1936553

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Sheridan Lee

DATE:7 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 7 February 2023 at 10:44 am

CATCHWORDS
REFUGEE – protection visa – Turkey – religion and imputed political opinion – non-practicing Muslim with secularist views – participation in protests and online activity – association with Gulen movement-associated school in Australia as employee and students – no active participation in movement – member of particular social group – young adult children’s sexuality, work and/or activities – country information – no clear criteria by government to link individuals with movement – not necessary to make findings about remaining claims – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 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 dependants.

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 17 December 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are a family of four from Turkey. [The first named applicant], is a [Age 1]-year-old woman, originally from [City 1]. She met her husband, [the second applicant], in Izmir and the couple married in [Year 1]. [The second applicant] is a [Age 2]-year-old man, originally from [City 2]. The couple’s two children, [the third and fourth applicants], were both born in [City 3].

3. The family first arrived in Australia [in] June 2008 after [the first applicant] was granted a Student, Subclass 570 visa. She went on to complete an English language course, followed by a [Qualification 1] at [University 1] and [Qualification 2] at [University 2]. Her husband and children were included on her Student visas as secondary applicants. [The first applicant] returned to Turkey to visit family for one month in December 2011 to January 2012. The rest of the family have remained in Australia since arriving in 2008.

4. [The first applicant] applied for protection on 17 March 2015 on the basis that she would be persecuted in Turkey for her secularist views and as a non-practicing Muslim. [The second, third and fourth applicants] were included in the application as secondary applicants. However, on 21 October 2019, additional claims were put forward on their behalf. Primarily, the family were concerned that they would be imputed as supporters of Fethullah Gulen on the basis of their involvement with a Gulen-linked school in Australia.

5. The family presented their passports, issued by the Republic of Turkey, to the Tribunal on the day of the hearing. I accept that the applicants are citizens of Turkey and will assess their claims against Turkey as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.

6. The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicants are persons to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.

   Claims and evidence

7. In 2015, the applicants claimed protection on the basis that they would be persecuted in Turkey for their political and religious beliefs. As the primary applicant, [the first applicant] expressed a belief that there should be a separation between the church and the state. She claimed that the family protested against the Turkish Government during Occupy Gezi Park in 2013 and provided the Department with a range of political posts from her [Social media] account from 2013 to 2017. [The first applicant] claimed to disagree with the teaching of religion in schools and the inclusion of religion on Turkish identification cards. She self-identified as a spiritual person, however she does not adhere to the practices of an organised religion.

8. In addition, [the first applicant] expressed fear that she and her two daughters would face violence and discrimination in Turkey as women.

9. In 2019, the family updated their claims to include a fear of persecution on the basis that they would be imputed as followers of Fethullah Gulen. Both [the third and fourth applicants] attended [School, name 1], later renamed to [Name 2], in [Suburb] for a period of their schooling between [Year 2] and [Year 5]. School reports issued by the [School] for [the third applicant] for the years [Year 2] to [Year 4] and for [the fourth applicant] for [Year 3] to [Year 4] were provided to the Department. National Assessment Program Literacy and Numeracy (NAPLAN) test results issued by the Australian Curriculum, Assessment and Reporting Authority for [the fourth applicant] for year [Number] in [Year 3] and [the third applicant] for year [Number] in [Year 2], report their educational institution as [School].

10. In addition to both girls attending the [School] as students, [the first applicant] worked at the school as [an Occupation]. She provided a PAYG summary for the period [07]/2011 to 30/06/2012 to evidence payments received from [the School].

11. In her separate claim for protection, submitted on 21 October 2019, [the third applicant] outlined that she moved to Australia at [Age]. She completed high school in Melbourne and went on to study a [Qualification 3]. At the time of the application, she described herself as unsure about her sexuality. Explaining that she had been attracted to both girls and boys. [The third applicant] expressed a fear that she would be unable to continue [specified] activities, wear [certain] clothing or [do a Job task in Workplaces] in Turkey. She further expressed fear that she would not be free to explore her sexuality.

12. The delegate accepted that the applicants were truthful witnesses. It was accepted that the family were secular, well-educated and the children were largely westernised. It was further accepted that the family did not support the Turkish Government of the day, [the third and fourth applicants] had attended a Gulen-associated school and [the first applicant] had worked at the school as [an Occupation]. Nevertheless, the delegate did not accept that their activities or associations would bring them to the adverse attention of the Turkish Government. In respect to [the third applicant]’s sexuality, the delegate considered her claim to be speculative in nature and did not accept that she would face persecution in that regard. On 17 December 2019, the delegate found that the [applicants] were not people to whom Australia had protection obligations.

    Application for merits review

13. The applicants applied to the Tribunal for merits review of the decisions to refuse their applications for protection visas. A copy of the decision in respect of each applicant was provided to the Tribunal with the application for review.

14. On 1 August 2022, the applicant’s representative provided the Tribunal with a statutory declaration made by each applicant. Each statutory declaration provided an overview of the previously outlined claims and expressed a strong desire to remain in Australia.

15. The applicants appeared before the Tribunal on 2 August 2022 to give evidence and present arguments. Each applicant was provided with the opportunity to give evidence both in private and together. The applicants were represented in relation to the review and the representative was present throughout the hearings.

16. Their evidence at the Tribunal hearing will be discussed below where relevant.

    CRITERIA FOR A PROTECTION VISA

17. 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.

18. 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.

19. 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).

20. 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.

21. 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

22. 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

23. I accept that [the first applicant] is a qualified [Occupation] who was employed to [do a Job task] at [School] in Melbourne for approximately two years in 2011 and 2012. I accept that [the third and fourth applicants] attended the [School] as students. I further accept that [School] is known to be associated with the Gulen movement, particularly prior to the attempted coup in Turkey in 2016. For the reasons below, I accept that the [Applicant] family would face a real chance of serious harm on the basis of their involvement with a Gulen-associated school.

24. 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

25. 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. 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  

26. 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.

27. 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.[7]

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

    The [Applicants’] links to the Gulen movement are tenuous at best. The association with [School] was motivated by need and convenience. I accept that the school provided the opportunity for the family to access affordable school fees and interact with other families and teachers who spoke Turkish. The family do not support the movement and have not participated in any religious activities or joined any groups or clubs associated with Fethullah Gulen.

28. Nevertheless, Human rights observers have expressed concerns that 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.[8]

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

29. After consideration of current information regarding the political situation in Turkey, I cannot discount the possibility that the family would be arrested because of their links with a school associated with the movement. In addition, I accept that [the third and fourth applicants] may face difficulty securing employment in Turkey if it were disclosed that they had attended with a school associated with the movement. Similarly, [the first applicant] may face difficulty securing employment if her employment at [School] were discovered or disclosed.

30. In 2022, the United Kingdom Home Office reported that evidence suggests that those particularly at risk of the adverse attention of the authorities include firstly the military, police, judiciary and diplomats; and secondly, the media, teachers and academics, and human rights defenders. The report also stated that those with a well-founded fear of persecution would be unlikely to obtain protection from the Turkish authorities or to relocate to another area within Turkey to find safety.[9]

    [9] United Kingdom Home Office, Country policy and information note: Gulenist movement, Turkey, February 2022, accessed at >

    As a family with members that have been employed as [an Occupation] and sent their children to a school associated with the movement, I consider that each member of the family would face a real chance of persecution. In the circumstances, it is unnecessary for me to make findings in respect of the remaining claims put forward by the [Applicant] family.

31. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).

    DECISION

32. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy 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.

    …