2017471 (Refugee) - [2024] ARTA 813

2017471 (Refugee) [2024] ARTA 813 (2 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 2017471
Tribunal:General Member G Simm
Date:2 December 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·36(2)(a) of the Migration Act.

Statement made on 02 December 2024 at 8:30am
CATCHWORDS
REFUGEE – Protection Visa – Türkiye – race – Turkish ethnicity – political opinion – involvement in and support for the Gűlen movement – being imputed to be a member or supporter of FETO – pending charge or charges against him in Türkiye – membership of a social group – members or former members of the Gülen movement – applicant faces a real chance of serious harm – fear of persecution on the basis of his political opinion is well-founded – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs 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 national of Türkiye,[1] applied for the visa on 19 May 2017. The delegate refused to grant the visa on 30 November 2020.
[1] The government changed the name of the country in English from Turkey to Türkiye in 2021. The original spelling has been retained in publications cited.
The applicant appeared before the Tribunal on 4 November 2024 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 was represented in relation to the review.
BACKGROUND
The applicant is a [age]-year-old man born in Istanbul, Türkiye. He is Muslim and identifies as being of Turkish ethnicity. Based on documentary, written and oral evidence, the Tribunal accepts the following matters to be true:
a.The applicant’s father passed away in 2017. His mother lives in Bursa. He has one younger brother who lives in Sakarya, He contacts his mother about once or twice a week. His brother is working [and] he is intermittent contact with him.
b.The applicant completed vocational high school in 2003. He completed compulsory military service in February 2008.
c.He worked in [an] [industry]. He has also undertaken casual farmhand work and made [items].
d.The applicant worked [as] an [occupation] between May 2015 and February 2017. During this time he [details deleted].
e.The applicant was twice married and twice divorced in Türkiye.
f.The applicant married [Ms A], an Australian citizen, on [date] November 2021.
g.Since arriving in Australia, he has been working in a [shop]. For the last four years he has been running his own [shop] with his wife.
h.The applicant misses his family. His father passed away and his brother married but he missed those occasions because he was in Australia.
Evidence before the Department
In his Statutory declaration of 18 May 2017, the applicant claimed as follows:
a.In February 2005, two plain clothes police officers came to his house and asked for his father. He got into an altercation with them and when one of them fired a round from his pistol, realised they were police officers. He was arrested and held overnight. The next day he pleaded guilty to striking a police officer. He was released but later found that the matter had been heard in his absence and he received a fine.
b.In May 2005, he visited Ankara to take an exam to join the military as an officer. He passed the exam but was refused entry to the military due to his altercation with the police.
c.While in Ankara, he stayed at the house of a friend who lived in a Gűlen dormitory. He heard discussions about politics and how the country could be improved. He liked what he heard so he stayed there again, about 100 times over 10 years. At the meetings they watched videos of Feto talking about a better Türkiye. He would have to travel over five hours from Bursa to attend. He preferred attending the Gűlen meetings in Ankara as there were more meetings there.
d.From around November 2013, some of the brothers who attended the meetings started to disappear. This increased and by early 2015, people knew that it was dangerous to attend these meetings.
e.Due to the danger, the applicant took a job [and] left Türkiye. He returned in May 2016 but then took another job [in] June 2016.
f.While he was away, the attempted coup occurred. The applicant would have been abducted by the authorities if he had been in Türkiye at the time. He has not been able to contact any of his friends from the pro-Feto meetings since the coup.
g.He returned to Türkiye on[date] November 2016. One day he was drinking with a friend in a park in [Town 1] when they were approached by two undercover police officers. When the police conducted a body search, they found a US$1 bill which the applicant [had]. It was an F series bill, so the officer tried to grab the applicant’s wallet. The applicant did not let go and the officer hit him on the head with his baton. The applicant fell to the ground, bleeding from the head. The applicant ran away and went to Istanbul the next day.
h.The applicant rang his father who told him that some young men had come looking for him because he was involved with Feto. They told his father they were from Idealistic Youth Groups. The applicant then knew that he would be flagged as a Feto supporter and that he had to leave Türkiye as soon as possible. He took the first job he could find [and] left Türkiye.
i.The applicant feared return to Türkiye as he would be detained at the airport, tortured, and possibly killed by government authorities. He feared that Idealistic Youth groups would attack, detain, torture and possibly kill him. He also feared that Feto supporters would harm him, thinking that he had abandoned Feto and joined the government side.
In his Statutory declaration of 14 October 2019, the applicant declared that his father passed away on 17 November 2017. The funeral was delayed for several days as he wanted to attend but decided against it. His mother told him that on 18 December, police had come in the guise of offering condolences and had asked about his whereabouts. Since then, the police had come looking for him twice: the first time, about three months after the funeral, and the second time, about nine months after the funeral.
The applicant was invited to interview on 20 March 2019. The delegate refused to grant the visa because she was not satisfied regarding the applicant’s credibility and the lack of documentary evidence supporting his claims. She did not accept that the applicant was involved in the Gűlen movement in either Türkiye or Australia; that he had visited a Gűlen student dormitory on about 100 occasions over a ten year period; or that he understood the Gűlen movement or was perceived as supportive of it. Further, she did not accept that the applicant had come to the attention of the Idealistic Youth Groups (Grey Wolves), Halk Ozel Harekat, or any other youth, paramilitary or ultra-nationalist group. She did not accept that he had a profile in Türkiye as a Gűlen supporter or that he feared harm from Gűlen supporters because they might think he had deserted the movement.
Evidence before the Tribunal
The applicant’s representative provided a pre-hearing submission dated 30 October 2024. Attached to the submission were three statutory declarations from the applicant, dated 2017, 2019 and 2024; support letters from the applicant’s mother and brother in English; and a Turkish court document requesting the applicant’s address dated 4 May 2020 with a certified translation into English.
Key points of the applicant’s statutory declaration of 28 October 2024 can be summarised as follows:
a.He feared returning to Türkiye due to his involvement in and support for the Gűlen movement and imputed involvement in the Fethullah Gűlen Terror Organisation (FETŐ).
b.He clarified that his statutory declaration of 2017 conflated the incident where he was fined for hitting the plain clothes police officer who visited his home looking for his father in 2005 with his 15 days of imprisonment for using a mobile phone while undertaking military service in 2011.
c.He became involved with the Gűlen movement while staying at a shared house with a friend in Ankara in May 2005. He travelled to Ankara from Bursa for the meetings where discussions included how to help new members and support people. They also watched videos of Gűlen talking about his views and creating a better Türkiye.
d.On 15 July 2016 when the failed coup against the Erdoğan government occurred, he was outside of Türkiye [working]. The Gűlen movement was suddenly blamed for the coup and Gűlen’s followers labelled FETŐ.
e.In November 2016, when he was drinking with a friend in a park in [Town 1], they were approached by two plain clothes police officers who conducted a search. After he was hit on the head by one of the police officers, he fell down. He wanted to clarify that one of the police officers moved away to take a phone call and the other remained close to him talking to his friend. The applicant took the chance to run away and hide.
f.In around May 2020, police attended his house and asked after him. His brother told them that he was not in Türkiye and was living in Australia. On 4 May 2020 the police gave his brother a letter demanding that he provide the applicant’s Australian address to the authorities. His brother has not done this.
g.He had experienced difficulties renewing his Medicare card so had tried to renew his Turkish passport at the Turkish Consulate in Melbourne. In late 2023 or early 2024, he attended the Consulate but was unable to renew his passport because the Consular official said that on the computer system, there was a note saying that he did not have a registered address in Australia and that he had pending charges in Türkiye. The official said he should return when he had booked tickets to Türkiye and he would receive a temporary travel document to return to Türkiye and he could renew his passport in Türkiye.
h.The Consular official could not see the charges pending, just that it had been flagged on the system. When the applicant requested a UYAP user name and password, the official said he could not provide it.
i.The applicant believed that his inability to renew his passport or obtain a UYAP login is related to the arrest warrant for him in Türkiye. He cannot access UYAP without a login from the Turkish Embassy, which he had tried to obtain.
j.He feared that if he returned to Türkiye, he would be arrested and imprisoned due to his links to Gűlen groups and to being imputed to be a member or supporter of FETO. He feared being beaten or tortured by the police and by prison officers and other prisoners.
At the hearing, the applicant gave evidence as follows:
a.He feared returning to Türkiye now because, as a Gűlen supporter, he was considered a terrorist.
b.He feared harm from the government, specifically, being arrested and tortured by the police or being murdered in prison by the other prisoners. Although the government was careful not to have people killed by government agents, it was happy for others to do that work.
c.He was actually more scared of being tortured by the police than being killed by other groups, because at least if they killed you, it was over and done with but the torture was worse than dying. He had nightmares about returning to Türkiye and being arrested.
d.He also feared harm from supporters of the government, specifically, the youth wing of the AKP [ruling Justice and Development Party]; the MHP [far-right Nationalist Movement Party] and others. If the police arrested him then released him, that would be the reason for the other groups to take action and kill him.
e.He did not currently fear harm from Gűlen supporters believing that he had betrayed them and gone over to the government side as they were scared to come out into the open.
f.After the attempted coup in 2015, the media suggested that Turkish President Erdoğan may have organised it so he could retain control, but that is no longer being discussed.
g.Since Gűlen died in October 2024 in the US, he thought things would change but Erdoğan said that there would be a purge and that all Gűlen supporters would be caught and punished.
h.When he told his family by phone that he had a hearing at the Tribunal to discuss his risk as a Gűlen supporter, they told him not to talk about it over the phone as it would be a problem.
i.When asked what the Gűlen movement stood for, the applicant responded that he respected and believed in it. It aimed to educate students and to enable them to reach high places.
j.When asked about political discussion in the Gűlen house where he stayed over ten years, the applicant said there was no discussion of the government; rather people discussed how the country could be improved, namely, through education.
k.The applicant had lost contact with ten close friends from the Gűlen movement. There were about 100 people he knew who had disappeared. They might be in prison, killed, or they might be scared to get in touch with each other because they were worried about getting caught and going to jail.
l.When asked about his religious beliefs, he said that he was a Muslim but he did not pray five times a day. He was not a Christian but he had been to Church once in Türkiye and once in Australia. For him, it was more important to help people who needed help. What Erdoğan had done in the last 5 years had made him distance himself from religion.
The Tribunal discussed the support letters provided by his mother and brother with the applicant. He said that they were written in English with the help of a neighbour who was an English teacher. The letters corroborate the claims made by the applicant.
The certified English translation of the court document issued by [a court] is set out below:
2020.05.04 – 18.27.02.110-12
This document is signed electronically in accordance with Electronic Signature Act 5070. No hard copies will be sent.
Republic of Turkiye, [a named court]
File: No: [deleted]   Address Research
TO THE DIRECTORATE OF [TOWN 1] POLICE CENTRE
Re: Your records dated 11/03/2020
It was reported in the above referred records by [name] during an interview that his brother [Mr B] is living in Melbourne in Australia but UYAP (National Judiciary Informatics System) records do not have an overseas address for [Mr B].
It is requested that [Mr B]’s overseas address is to be received from [name] and reported to our court as a matter of urgency.
04/05/2020
Clerk 100208   Judge 189949
e-signed   e-signed
PERSON: [Mr B], son of [names], born [on] [date], registered at Bursa, [Town 1], [a] population registry and his residential address is [address].
Attachment: Records
You can access this document in UYAP Information System by entering [deleted]
The Tribunal discussed this document with the applicant. The applicant stated that he thought there was a warrant outstanding for his arrest in relation to the incident in November 2016 when he was searched by police and they found a US$1 F-series bill on him. He ran away, travelled to Istanbul the next day, and departed Türkiye on [date] November 2016. He could not think of any other reason why there would be an arrest warrant out for him. When asked why the document had been issued by [a specified] criminal court, the applicant responded that it was probably because he had departed Türkiye from [that area] and that was his last known address.
The Tribunal asked the applicant whether he had tried to access the Turkish government online systems to find out what charges were outstanding in relation to him. The applicant gave evidence that he had tried very hard to renew his Medicare card but could not as he did not have sufficient identity documents. He approached the Turkish Consulate in Melbourne to renew his passport. However, the Consulate would not assist him as they said there were outstanding charges in his name. When asked whether he had considered asking his family to employ a lawyer who would be able to access the UYAP system, he stated that he had already tried this. As he was outside Türkiye, he needed to execute a power of attorney authorising a lawyer to do this and this would have to be done through the Consulate. He had already sent his brother a copy of his ID but because the system had a different ID than the one he sent his brother, his brother had been unable to log in.
In her oral submission at hearing, the applicant’s representative addressed the applicant’s response to the Tribunal’s question about whether any political issues were discussed at the meeting he attended in the student dormitory house in Ankara, to which the applicant replied in the negative. She submitted that, although the applicant may not have perceived the discussions about welfare and humanitarian work undertaken by those living in the student house as political, the government perceived this work as a political threat to its ideas about education and how Muslims should behave.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a refugee, or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Findings
The applicant provided the Department with a copy of the photo page of his Turkish passport and his Turkish national ID card. On this basis, and given that the delegate had no concerns about the applicant’s claimed nationality, the Tribunal accepts that the applicant is a national of Türkiye and has assessed his protection claims accordingly.
The Tribunal notes from the outset that it found the applicant to be a credible witness at hearing. His oral evidence about his background, involvement with the Gűlen movement, and interactions with Turkish police was spontaneous, considered and did not appear embellished. His evidence was corroborated by documentary evidence that had not been available to the delegate and supported by country information. Questions about possible discrepancies between the applicant’s written statements and his oral evidence were clarified to the Tribunal’s satisfaction. They resulted from problems in translation and the conflation of two events into one before the applicant’s English had developed sufficiently for him to recognise the problem in the translation into English.[2]
[2] Applicant’s statutory declaration of 28 October 2024, paras 1, 10 and 16.
I find that the applicant was a member of the Gűlen movement. I find that he attended numerous meetings at a student house in Ankara over a ten-year period from 2005 until 2015. The delegate did not accept the applicant’s claims that he was associated with the Gűlen movement as she did not consider his knowledge of the political ideology of Gűlen sufficiently detailed. However, I find that the applicant’s understanding of the Gulen movement accords with his educational and employment history and that his description of the charitable work in which he was involved is consistent with the country information about the service and community aspects of the Gűlen movement. Further I find that, regardless of whether or not the applicant regarded his work as political, the fact that the government declared the Gűlen movement to be a terrorist organisation in April 2016 indicates that the Turkish authorities regarded it as a threat.
I find that the applicant had several encounters with police. I find that in November 2016, when the police were conducting a body search on the applicant and his friend who were drinking in a park in [Town 1], they discovered a Series F US$1 bill in his possession. I find that the applicant’s reaction, ie to try to retain his wallet, to run away, and then to flee the country, would have caused the police to believe that he was a member of the Gűlen movement. I accept that this would have triggered further investigation and police would have become aware of the applicant’s frequent attendance at Gűlen meetings.
I have considered the document issued by [a] Criminal court on 4 May 2020 and the applicant’s evidence about it and accept it to be a genuine document. I find that it indicates that there remains at least one outstanding criminal charge against the applicant. I find that the Turkish Consulate’s refusal to renew the applicant’s passport in late 2023 or early 2024 was due to the applicant’s failure to update his overseas address in the UYAP system and due to a pending charge or charges against him in Türkiye.
Country Information[3]
[3] Paragraphs 30-32 are taken from 1928455 (Refugee), AAT, unreported, 19 August 2022. I have considered this analysis of historical events in Türkiye, agree with it, and adopt it here.
The Gűlen movement started as a religious movement in Türkiye during the 1960s through the sermons of Muslim cleric, Fethullah Gűlen. The Department of Foreign Affairs and Trade (DFAT) describes Gűlen as ‘a onetime radical Islamist preacher.’[4] Gűlen 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.
[4] DFAT Country Information Report Turkey, 10 September 2020, 3.34.
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.[5] The Turkish Government blamed Fethullah Gűlen and his supporters for orchestrating the attempted coup. The Government claimed that the Gűlen movement was running a parallel state within the civilian and military bureaucracy. However, Gűlen publicly condemned the attempted coup and denied any involvement.[6] Shortly before the coup, in May 2016, the Turkish government formally declared the Gűlen movement a terrorist organisation.
[5] Ibid 8.
[6] Turkey coup: What is Gűlen movement and what does it want? BBC, 21 July 2016.
Türkiye 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 crack down on political opponents well after the end of the state of emergency using the existing and new anti-terrorism laws.[7] The crackdown has largely been targeted at members of the Gűlen movement. Thousands of public servants suspected of being Gűlenists were fired and affiliated institutions closed.[8] 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 Gűlen movement.[9] Only a very small minority of those arrested are accused of actually taking part in the events surrounding the attempted coup.
[7] Human Rights Watch, World Report 2021. Events of 2020, 13 January 2021, 666-673; 2020 United States Department of State, Country Reports on Human Rights Practices: Turkey, 1, 30 March 2021; Freedom House, Freedom in the World 2021 - Turkey, 3 March 2021; Julia Hall, Weaponizing counter-terrorism, Amnesty International, 21 June 2021.
[8] ‘The Remarkable Scale of Turkey's "Global Purge"’, Foreign Affairs, 29 January 2018.
[9] Human Rights Watch, above n 7.
In September 2020, the DFAT Country Information Report on Turkey provided the following analysis of the risk profile of members of the Gűlen movement:
3.41 DFAT assesses those accused of membership of the Gűlen 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 Gűlen 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 Gűlen movement where no credible evidence exists face considerable societal stigma and restrictions, particularly through the publication of their names.
More recent country information confirms that the situation in Türkiye has not improved. Turkish authorities continue to monitor individuals and to take a broad approach when linking individuals to the Gűlen movement. Multiple systems are utilised in the monitoring of civilians including ’blacklists’[10], the ‘FETÖ-Meter’ and the SORI system. Systems such as the ‘FETÖ-Meter’ ‘calculate the material, ideological and institutional affiliation and affinity of those Turkish citizens who were/are with the Gülen Movement’ and consequently the degree of their ‘terroristness.’[11] This has created a ‘guilty by association’ or collective responsibility’ approach whereby individuals who are part of a certain group bear accountability for an act or behaviour that other members of that group – for example, family members – have committed, even if they themselves are not involved.[12] In 2021, more than 100,000 students from kindergarten to 12th grade were blacklisted for alleged Gülenist links.[13]
[10] 'Turkey: Security unit blacklists 20 journalists including union leaders', Article 19, 8 August 2022, 20220927122100; 'Turkey: Security unit blacklists 20 journalists including union leaders', Article 19, 8 August 2022, 20220927122100; 'Turkey blacklisted more than 100,000 students from kindergarten to 12th grade over Gülen links', Abdullah Bozkurt, Nordic Monitor, 30 April 2022, 20220927102936; and Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on his mission to Turkey (A/HRC/35/22/Add.3
[11] 'Algorithmic persecution in Turkeys post coup-crackdown: The FETÖ-Meter system', Emre Turkut & Ali Yıldız, Statewatch, November 2021, p.7, 20220927140859
[12] 'Algorithmic persecution in Turkeys post coup-crackdown: The FETÖ-Meter system', Emre Turkut & Ali Yıldız, Statewatch, November 2021, p.8, 20220927140859
[13] 'Turkey: Security unit blacklists 20 journalists including union leaders', Article 19, 8 August 2022, 20220927122100; 'Turkey: Security unit blacklists 20 journalists including union leaders', Article 19, 8 August 2022, 20220927122100 & 20220927102936; and Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on his mission to Turkey (A/HRC/35/22/Add.3)’,United Nations General Assembly, Human Rights Council, 21 June 2017, p.15, CISEDB50AD8149
According to a 2023 report by the Italian Federation for Human Rights, following the 2016 coup attempt, the Turkish government through state-owned Anadalou news agency circulated a conspiracy theory about how Gűlen movement members could be identified by their possession of F-series US one dollar bills. This theory was used as evidence in prosecutions of alleged Gűlen Movement (GM) members.
104. After the declaration of a state of emergency on 21 July 2016, the pro-government media circulated what may be considered a conspiracy theory, to the effect that every member of the GM was given a 1 USD banknote, which showed their place and significance within the hierarchy of the movement.
105. During this period, the Turkish General Directorate of Public Security circulated a memo to its provincial branches across Turkey. This memo was cited in full in several indictments: “In the memo of the General Directorate of Security dated 28.07.2016 and numbered 595075, it was reported that a (1) one US Dollar banknote was a symbol of the affiliation of the members to the [FETO] organization and that the hierarchy within the organization could be deduced from the serial numbers of the banknotes…”
106. Turkish prosecutors in seven of these indictments followed the cue and considered the serial numbers on 1 US Dollar banknotes as representing a special meaning within the hierarchy of the GM. In I-25, for instance, it was noted that “as a result of the examination of open sources; ... it has been established that the serial numbers on 1 US Dollar banknotes were used as identification numbers and their records were kept in the house where Fethullah GÜLEN, the ringleader of the terrorist organization, lived in Pennsylvania, USA and that each group of letters represented an assignment within the organization …”. Although the prosecutor mentions opensource information, the indictment does not list these sources, which prevents any meaningful evaluation or fact-checking.
107. In none of these indictments, the relationship between the suspects possessing 1 USD banknotes and the crime they were charged was explained in any meaningful way.[14]
[14] Erdinç Aksoy, ‘Turkey: FETO’s ‘one-dollar bill’ mystery solved’ Andalou Agency, online, 23 July 2016) cited in Emre Turkut, Ali Yıldız, Kevin Dent, Perils of Unconstrained Prosecutorial Discretion – Prosecuting Terrorism Offences in Post-Coup Turkey (Report of the Italian Federation for Human Rights) July 2023) 40 <>
The Turkish government has a suite of sophisticated databases that enable it to monitor citizens for a range of purposes. In September 2020 DFAT reported as follows:
5.25 Turkish authorities maintain a range of databases that provide information to immigration and law enforcement officers. The General Information Gathering System, which provides information on arrest warrants, previous arrests, travel restrictions, military service records (see Military Objectors) and taxation status, is available at most air and seaports across the country. A separate border control information system used by the police collates information on past arrivals and departures. The Judicial Records Directorate maintains records of past sentences served. The Central Civil Registration System (MERNIS) maintains information on civil status information (see Central Civil Registration System (MERNIS)).
More specific information in relation to the justice system is provided in a 2021 report by independent Istanbul-based law firm Moroğlu Arseven:
UYAP is an online network which ensures interconnection between all departments of the Ministry of Justice including, courts, public prosecutors’ offices, enforcement offices, and the central organization.
…UYAP constitutes the main gateway where different actors of justice access the portals and systems specifically designed for their use, and where online services are made available. UYAP is also integrated to E-Government and allows users to reach information found at E-Government.
Portals and services available via or connected with UYAP are mainly defined and regulated in the Regulation Concerning the Conduct of Administrative and Editorial Services of Regional Court of Justices, First Instance Courts for Jurisdiction, and Chief Public Prosecutor’s Offices. Significant available portals and services are briefly introduced below:
• Citizen Portal (Vatandaş Portal): This Portal enable citizens to access all judicial and administrative cases, enforcement proceedings filed by or against them, and to file civil lawsuits. Citizens can access the Citizen Portal through mobile signature, e-signature, EGovernment password, or the E-Government platform.[15]
UYAP… is the main application for all judicial actions and all actors of the judiciary can reach the system via specifically designated portals…
Entry to the system is only possible with e-signature, except for the Citizen Portal which can be accessed via the e-Government system. However, e-signatures can be used by any other person who has somehow acquired the e-signature password, and, therefore, identity verification is not possible in most cases. Also, as the Citizen Portal only requires an e-Government password, these data may be accessed when an e-Government password is acquired maliciously. In the Guideline, multi-factor verification is suggested. In fact, establishing at least a two-factor verification (knowledge-possession) may be useful for identity authentication.[16]2
[15] Moroğlu Arseven ‘Virtual Justice in Turkey: Where We Are and What to Expect From the Future?’ 7-8 (7 January 2021) cited in representative’s submission, 14-15.
[16] Ibid 19.
In its September 2020 Country Information Report on Turkey, DFAT reports on conditions for returnees as follows:
5.27 DFAT understands it is not a crime for Turkish citizens to seek asylum elsewhere. There is limited information available on conditions for failed asylum seekers who have returned to Turkey. DFAT is not aware of any significant stigma attached to this group. Turkey’s sophisticated information databases mean failed asylum seekers are likely to come to the attention of the government if they have a criminal record or are a member of a group of particular interest, including the Gulen movement, Kurdish or opposition political activist, a human rights activist, or a draft evader or deserter. (emphasis added)
Allegations of torture and ill treatment of individuals in police detention continue. These include reports of human rights violations such as a lack of medical care, torture and solitary confinement.[17] The US Department of State notes that pre-trial detention is widely used as a form of summary punishment, particularly for those charged with terrorism offences.[18] There is no effective oversight of the prison system; prison monitoring boards were dissolved following the coup attempt and those that remain are largely ineffective.[19]
In 2022 the European Commission noted an increase in credible allegations of torture and ill treatment in detention centres, prisons, in informal places of detention, transportation vehicles and on the streets, mostly during demonstrations. According to the USSD, people with alleged links to the Gülen movement are more likely to be subject to mistreatment and possibly torture whilst in detention.[20]
[17] DFAT Country Information Report Turkey, above n 4, 5.17; 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, pp. 371-72, 20230328142801; Country Reports on Human Rights Practices for 2022 – Turkey', US Department of State, 20 March 2023, p.1, 20230322100444; Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, p.610, 20230112144355
[18] 'Country Reports on Human Rights Practices for 2022 – Turkey', US Department of State, 20 March 2023, pp. 15-16, 20230322100444
[19] 'Turkey 2021 Report', European Commission, 18 October 2021, p.31, 20220914133826
[20] UK Government, Country Policy and information note: Gűlenist movement, Turkey, October 2023 (report 9 August 2024) Country policy and information note: Gülenist movement, Turkey, October 2023 (accessible) - GOV.UK

Police and prison guards are known to beat and abuse detainees. The US Department of State 2023 Human Rights Report states:
a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
There were credible reports the government or its agents committed arbitrary or unlawful killings during the year. Deaths at the hands of security forces, police, and prison guards were reported.
Human Rights Watch reported Ahmet Guresci, age 27, died in custody after he and his brother were detained and beaten by police in Antakya for allegedly being involved in looting and “other crimes” following earthquakes in February.[21]
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and Other Related Abuses
The constitution and law prohibited torture and other cruel, inhuman, or degrading treatment, but domestic and international rights groups reported some police officers, prison authorities, and military and intelligence units employed these practices. Domestic human rights organizations, bar associations, political opposition figures, international human rights groups, and others reported government agents engaged in threats and mistreatment of persons while in custody. Individuals with alleged affiliation with the PKK or the Gűlen movement were more likely to be subjected to mistreatment or abuse.[22]
[21] US Department of State, Turkey (Türkiye) 2023 Human Rights Report (Report, 2023) 3. Ibid 4.

Does the applicant satisfy the refugee criterion for protection?

Real chance of serious harm

Under s5J(1)(b) of the Act, the applicant must show there is a real chance that, if he returned to Türkiye, he would be persecuted for a refugee reason.

Serious harm

Subsection s5J (5) provides some examples of serious harm, without defining it exhaustively. These include

(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;…

The applicant has articulated his fear of being arrested, imprisoned and tortured by the police and by prison officers, as well as his fear of being murdered in prison by other prisoners. Further, he fears that if the police arrest then release him, that would be a reason for government supporters and far-right nationalists to beat and kill him. The applicant could also be subject to pre-trial detention for being a member of a terrorist organisation and, if convicted, sentenced to a term of imprisonment. I find that these forms of harm clearly amount to serious harm as defined in s5J(5) of the Act.

Real chance

The country information set out above indicates that, even where no credible evidence exists, those accused of membership of the Gülen movement face a high risk of adverse official attention, including arrest and prosecution. The applicant was unable to renew his passport at the Turkish Consulate in late 2023 or early 2024. The reasons given, namely, that he had not provided an updated overseas address and that there was at least one outstanding charge against him, indicates that the Turkish authorities have already linked the applicant to the Gülen movement, likely on the basis of his attendance at meetings in Ankara 2005-2015 and the incident in the park in [Town 1] in 2016.

Further, the country information points to a solid basis for the applicant’s fears of being arrested, imprisoned and tortured by police or prison officers. DFAT, academics and journalists cast serious doubt on the applicant’s ability to receive a fair trial as a member of the Gülen movement, which was declared a terrorist organisation in May 2016. While torture is endemic in police custody and prisons in Türkiye, being suspected of membership of the Gülen movement increases his chances of being tortured as attested to by the European Commission, US Department of State and Human Rights Watch. I find that there is a real chance of serious harm if the applicant is returned to Türkiye.

Based on the oral, written and documentary evidence provided by the applicant and the country information, the Tribunal finds that there is a real chance the applicant will be subjected to ‘serious harm’ including loss of liberty and significant physical harassment and ill-treatment for the purposes of s.5J(4)(b) if returned to Türkiye, now and for the foreseeable future.

Reasons for the feared harm

If a person fears persecution for one or more of the reasons mentioned in s5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason for the persecution: s5J(4)(a).

The Tribunal finds that the harm will be directed at the applicant for the essential and significant reasons of his imputed (anti-government/pro-Gűlenist) political opinion or sympathies, and/or for his membership of a particular social group, namely members or former members of the Gülen movement.

Further, as discussed, the country information makes it clear that Turkish government policy towards members of the Gulen movement singles them out and targets them for discriminatory treatment. This includes dismissals from employment in the case of government workers and academics; imposition of travel bans and cancelling their passports and those of family members, and placing markers against them in the state social insurance registration system, impeding their access to medical insurance and retirement benefits.[23]. I find that the Turkish government’s treatment of Members and suspected member of the Gűlen movement involves systematic and discriminatory conduct for the purposes of s.5J(4).

Real chance in all areas of Türkiye and state protection

[23] DFAT Country Information Report 2020, above n 4, 3.40-3.41.

As the applicant’s fear includes fear of persecution at the hands of the state, the Tribunal is satisfied that the real chance of persecution relates to all areas of Türkiye for the purposes of s.5J(1)(c). Where the persecution feared is at the hands of non-state actors, such as Idealistic Youth groups, supporters of the ruling AKP or the far-right nationalists, or inside prison, other prisoners, the country information indicates that the Turkish authorities will not protect Gűlen movement members. Hence I find that effective protection measures are not available to the applicant for the purposes of s.5J(2).

Behaviour modification

I accept that the applicant is not subject any requirement to modify, alter or conceal his behaviour or beliefs to reduce his risk of persecution where this relates to his political beliefs pursuant to s.5J(3)(iii).

Conclusion

It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds that, for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.

Date of hearing: 4 November 2024

Representative: Ms Emma Mulrooney

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.
…