2018107 (Refugee)
[2024] ARTA 786
•2 December 2024
2018107 (REFUGEE) [2024] ARTA 786 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Kevin Williams-Besy
Respondent: Minister for Home Affairs
Tribunal Number: 2018107
Tribunal:General Member G Simm
Date:2 December 2024
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
· both applicants meet s 36(2)(a) of the Migration Act.
Statement made on 02 December 2024 at 12:09pm
CATCHWORDS
REFUGEE – protection visa – Turkiye – religion – Alevi – race – Kurdish – political opinion – Revolutionary People’s Liberation Party – terrorist organisation – physical assault – detention – fear of killing – mental health issues – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2Any 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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be nationals of Türkiye, arrived in Australia [in] January 2017 on student visas. They applied for protection visas on 19 June 2017. The delegate refused to grant the visas on 8 December 2020.
The applicants appeared before the Tribunal on 21 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.
Their son [named] was born on 22 December 2023. At hearing the Tribunal advised the applicants that the Tribunal’s decision does not apply to [the son] and that they should discuss his status with their representative.
The applicants were represented in relation to the review.
BACKGROUND
[Name], the first applicant, is [an age]-year-old man born in Istanbul, Türkiye. He identifies as being of Kurdish ethnicity and Alevi. Based on documentary, written and oral evidence, the Tribunal accepts that the following matters are true:
a. His father is Kurdish and speaks Kurdish. His mother is Turkish. They are both Alevi. His father was [an occupation 1] and is now retired. They continue to reside in Istanbul. [the applicant] is in contact with them about once a week.
b. [The applicant] has [a] brother, [Brother A], who was granted asylum in [Country 1] in 2011 and lives there. They have [another sibling] who lives in Istanbul. [They are] married with [number] children. He speaks with [that sibling] about once a month.
c. [The applicant] completed a two-year degree in [subject 1] at [University 1] in Istanbul and a [degree] in [subject 2] at [University 2].
d. Between [specified year] and when he departed Türkiye in January 2017, he worked in sales in Istanbul.
e. [In] September 2014 he and his wife married.
f. Since arriving in Australia on a student visa, he has been working picking and packing.
[Applicant 2], the second applicant, is [an age]-year-old woman. She identifies as being of Turkish ethnicity and Alevi. Based on documentary, written and oral evidence, the Tribunal accepts that the following matters are true:
a.Her parents live in Istanbul. Her father used to work in [a specified industry] and he has just retired. She contacts them every day.
b.She has [specified siblings] who live in Istanbul. [One brother] is [an occupation 1] but is currently unemployed. [another sibling does home duties]. She is in contact with her [siblings regularly].
c.She completed high school in Istanbul and did a degree in [occupation 3] at [University 1]. She then started a degree in [subject 2] at [University 2] by distance which she did not complete.
d.After graduating from university, [Applicant 2] worked as an [occupation 3] in [a specified] firm for seven months. She then worked for six years as an [occupation 3] in [another] firm.
e.Since arriving in Australia, she has worked as [an occupation 3] then in a factory as a pick packer. Since her son was born, she has been on maternity leave.
Evidence before the Department
In his statutory declaration of 30 August 2017 supporting his protection visa application, [the applicant] claimed to fear harm if returned to Türkiye as summarised below:
a.He was Kurdish and the Kurds were not allowed to speak their own language. His father’s family had been forced off their lands and had to migrate to Istanbul.
b.He could not practise his religion as an Alevi freely in Türkiye. The government believed that cem houses where Kurdish and Turkish Alevis pray were meeting places for government opponents. Cem houses in Istanbul had been attacked and he feared being targeted and harmed.
c.In [year] when [the applicant] was [age] years old, his brother [Brother A], who is [number] years older than him, was arrested in the middle of the night. Around 15 police officers who arrived in 3-4 police cars smashed down the door and beat [Brother A] and his parents. They later found out that [Brother A] had been tortured for 13 days.
d.In court [Brother A] was found guilty of being a member of the Revolutionary People’s Liberation Party – Front (Devrimci Halk Kurtuluş Partisi/Cephesi) (DHKP/C)[1] and sentenced to [period] in jail. During that period, the police raided the applicants’ house at night on a monthly basis. They also strip-searched [the applicant] and his family when they went to visit his brother in jail. The police detained his parents overnight on about 10 occasions when they visited his brother in jail and beat them severely.
[1] References to this organisation use both / and -. I have followed the usage in the original source.
e.Once he was released, [Brother A] did 18 months of military service, during which he was tortured and given the hardest and worst jobs. He was not trusted with a weapon. All this was because he was Kurdish Alevi and had been a political prisoner.
f.After completing military service, [Brother A] started attending Kurdish Alevi cultural centres frequented by socialists and social democrats. The police continued to raid the house about every two months. The police were monitoring [Brother A]. In 2002, when he was coming home from the cultural centre, the police warned him that if they saw him participating in protests, they would kill him.
g.[The applicant’s] parents sold their house to get money to send [Brother A] out of the country. He applied for refugee status in [Country 1], which was eventually granted. Following his departure, he was convicted of being a member of a terrorist organisation and received a life sentence, commuted to 15 years because he was under 18 at the time he was charged. If he returned to Türkiye he would be sent to prison and possibly tortured or killed.
h.When he was studying at university, [the applicant] started to become politically active due to his personal experiences of persecution as a Kurdish Alevi and his concern about other human rights abuses.
i.He participated in activities, campaigns and protests organised by [Organisation 1].
ii.He attended many May Day protests commemorating the Taksim Square massacre of workers killed by police on 1 May 1977. [In] May 2013 he was arrested, held in custody for one day, and beaten by the police who threatened to kill him if he was involved in another protest.
iii.He attended the 2013 [Location 1] protests. [In] May 2013, he was beaten up by police several times. The next day he was arrested and detained by police, who said they knew he was part of his brother’s organisation.
iv.In 2014 he attended the commemoration for the people who lost their lives in the [Location 1] protests with [Organisation 1] and Idil Cultural Centre.
v.Between 2013 and 2016, he was beaten and threatened by police at demonstrations that he attended due to his family connection to his brother and because he was politically active.
i.[In] September 2016, he was kidnapped and taken away in a black van. He was knocked unconscious and when he woke up, he heard police messages and he was asked for names of DHKP-C members. He was beaten and subjected to electric shocks and a torch-like device. They held a gun to his head and threatened to kill him if they saw him attending demonstrations with [Organisation 1] and Idil Cultural Centre. They said they knew he was a member of DHKP-C like his brother. They threatened to kidnap his wife and do the same things to her that they had done to him. They beat him until he lost consciousness. He woke up on the side of a road in Istanbul and his family collected him.
j.He did not attend work for [several] days due to the pain from his beatings. He was too scared to get a medical report or tell his work why he was unwell. When he told his family what had happened, they were very concerned and insisted that he go abroad.
k.About a month later, at Idil Cultural Centre, undercover police officers stopped him, kicked and punched him and warned him not to come back. After this he received threatening and abusive phone calls.
l.In October 2016, when he was leaving Idil Cultural Centre, he was forced into a car by three men in plain clothes carrying guns. They took his ID and had a phone conversation outside the car so he could not hear. Then they slapped, hit and kicked him and warned him not to come back.
m.In November 2016, Idil Cultural Centre was raided by police and people were arrested, including musicians from Grup Yorum. [the applicant] was not there at the time.
n.In 2017, Idil Cultural Centre was raided again and more arrests made, including members of Grup Yorum.
o.After this [the applicant] stopped attending Idil Cultural Centre and made arrangements to leave Türkiye, including by applying for student visas for Australia.
p.If he returns to Türkiye, [the applicant] fears that he will be arrested, detained, interrogated, tortured and/or killed by Turkish authorities. He fears that his wife will be arrested, detained, interrogated, sexually assaulted, raped and/or killed to make him admit to crimes or to force him to give himself up.
q.His experiences have left him very scared and traumatised. He has problems sleeping and he fears for his family’s safety.
The applicants were invited to interview on 14 October 2020 which was held online due to lockdown in Melbourne. Following the interview, the applicants’ representative made a submission in which he reiterated [the applicant’s] claims to protection and added that, if returned to Türkiye, [the applicant] would be at risk due to his status as a failed asylum seeker. He argued that the applicant’s risk profile should be considered on a cumulative basis. Further, he contested some inferences made by the delegate in the interview, including regarding the applicants’ application for a student visa file, to which their representative had not yet been granted access under Freedom of Information, and the delegate’s suggestion that [the applicant’s] police clearance was at odds with his claim to have been arrested several times by the police.
Annexed to the post-hearing submission were the following supporting documents: the applicants’ marriage certificate and certified translation into English; [Brother A’s] application to [Authority 1] in Turkish; translation of [the applicant’s] police clearance into English; copies of [Brother A’s] asylum decision, [Country 1] citizenship certificate, and identity card and certified English translations.
On 8 December 2020 the delegate refused to grant the applicants protection visas. She did not accept that [the applicant] had been kidnapped [in] September 2016 or that [Brother A], [the applicant] or his family was of continuing interest to the Turkish authorities, among other things. She found that the harm faced by [the applicant] amounted to discrimination rather than persecution. In relation to [Applicant 2], she found that Alevis faced discrimination but that this did not amount to persecution and that her political activities were not significant enough to bring her to the attention of Turkish authorities. As she did not accept that [the applicant] had a high profile or that [Brother A] was of continuing interest to the Turkish authorities, the delegate did not accept that [Applicant 2] would be at risk due to her association with her husband or his brother [Brother A].
Evidence before the Tribunal
On 15 November 2024, the Tribunal received a prehearing submission from the applicants’ representative. He submitted that [the applicant] feared harm on the following bases: his Kurdish ethnicity; his Alevi faith; his actual or imputed anti-government political opinion; his membership of particular social groups, namely being a family member of a person convicted as a member of a terrorist organisation and being a family member of anti-government activists. He submitted further that [Applicant 2] feared harm on the basis of her association with her husband and as a member of his family unit.
Attached were the following documents: [the applicant’s] statutory declaration dated 15 November 2024; letter of support from his brother [Brother A] in Turkish and certified translation into English; extract from [Court 1] relating to the sentencing of [Brother A] and certified translation into English; a copy of a power of attorney from [Brother A] to his lawyer in Turkey in Turkish, witnessed in [Country 1]; social media postings by [Brother A] with some English translations; [Brother A’s] application to the [Authority 1] and certified English translation; statement by [Brother A’s] Turkish lawyer with certified English translation; and country information comprising a report on torture, report on prisons, and list of web links provided by [the applicant].
The Tribunal considered the extract of the sentencing document issued by the [Court 1], Matter No/Order [numbers] that relates to [Brother A]. The full document, which addresses the other defendants as well, was provided to the Tribunal at hearing. The extract relating to [Brother A] states as follows:
The accused [BROTHER A] is a member of [DHKP/C] and operated with nick names [specified]. On behalf of this organisation, he did the following:
It was [determined] that he participated in the activities of the [group] to destroy the constitutional system by force, since he took place in [attacking] the Police Station in [location]. Therefore, HE WAS SENTENCED TO LIFE IN GAOL, TO STAY IN GAOL UNTIL THE DAY HE DIES, as per Section 146/1 of the Turkish Criminal Code number 765 and also per Section 1-A/32 of the Act number 5218.
Since the accused was [younger] than the age of 18 on the day of the offence, HE WAS SENTENCED TO 15 YEARS IN GAOL as per section 55/2 of Turkish Criminal Code.
….
THE ACCUSED [BROTHER A]
stated the followings in his evidence at the court: He was taken from his [home] by the police. He is not a member of that organisation. He didn’t take part in any activity. He signed his statement under the pressure by the police. He didn’t take path [sic] in the incident where [a named person] was murdered as mentioned in the indictment. The evidence he gave in Police [station] does not represent the truth. The evidence he gave in public prosecutor’s office is the true version. Naturally, he doesn’t accept the evidence about the re-enactment. He was forced to take part in re-enactment by the police. He was forced to sign the reports, too. He saw the accused [named persons] before, but he didn’t have any friendship with them. He didn’t know the other accused persons.
The document goes on to set out the prosecution’s case, which was accepted by the court, and a report of the forensic expert. It concludes as follows:
It was seen in the contents of the file that the accused is a member of the armed organisation called DHKP-C. He participated in the [attack], for the purpose of destroying the constitutional system by force. The accused talked about all the activities he participated, in great detail in his evidence, taken in the police [station], and pled guilty. Other accused persons who joined that attack also told in their evidence in police [station] that the accused [Brother A] had taken part in it.
On 19 November 2024, the Tribunal received a statement from [the applicant] clarifying two aspects of his 2024 statutory declaration and his lawyer’s submission and an undated document refuting the delegate’s decision and providing further context.
The applicants and their representative attended a hearing at the Tribunal on 21 November 2024. Where relevant, the applicants’ oral evidence to the Tribunal is referred to below.
The Tribunal discussed with [the applicant] the documents provided in the prehearing submission and clarified some issues relating to [Brother A’s] court documents, power of attorney and years of imprisonment. [The applicant] also provided information about the identities of the people in the photos of his brother’s social media postings. They included photos of [Brother A] at demonstrations about Turkish politics in [Country 1]; [Brother A] with members of Grup Yorum; and posts by [Brother A] about lawyers and other activists who had been on hunger strike for the right to a fair trial, including some who had died on hunger strike.
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 applicants are entitled to protection. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Findings
The applicants travelled to Australia on valid Turkish passports and stated that they were nationals of Türkiye. The delegate had no concerns about the applicants’ identities. Therefore the Tribunal has assessed the applicant’s claims against Türkiye as their country of nationality and receiving country.
The Tribunal wishes to note from the outset that the applicants impressed as credible witnesses. Their evidence was spontaneous, detailed and consistent with their prior statements and with documentary evidence. Each gave evidence independently which was consistent with the evidence of the other. The Tribunal had the benefit of documents which were not available to the delegate, such as the extract from the [Court 1] relating to [Brother A’s] sentencing, the full version of which was made available to the Tribunal at hearing, with a certified translation into English, a letter from [Brother A’s] lawyer and a letter from [Brother A]. The Tribunal has considered these documents and accepts them to be genuine. Together with the clarifications provided by the applicants’ representative, the Tribunal is satisfied that any potential inconsistencies have been explained and resolved in the applicants’ favour.
The Tribunal accepts all [the applicant’s] evidence which has remained consistent over the almost seven-year period since he and his wife applied for protection in Australia. I accept that he continues to hold strong pro-Kurdish and anti-government views and that he would continue to be active in expressing his views in Türkiye if he did not fear being harmed or causing harm to members of his immediate family. I note that [the applicant] did not seek to exaggerate his connection with members of Grup Yorum, a Turkish folk group which the government suspects of supporting the DHKP-C. Two of the members of Grup Yorum died in jail on hunger strike and members have been arrested, detained and tortured.[2] [The applicant] said that his brother [Brother A] was friends with some of them and that he got to know them through [Brother A] and through attending the Idil Cultural Centre.
[2] Netherlands, General Country of Origin Information Report Turkey, March 2021, 1.2.2.
The Tribunal accepts all [Applicant 2’s] evidence at hearing, including that she participated in some demonstrations while she was in Türkiye but is no longer politically active. I note that she did not seek to embellish her evidence and that a central concern for both her and her husband is now to provide a secure future for their son. Key aspects of their claims are supported by extensive country information, to which I now turn.
Country Information
Relevant points of the DFAT Country Information Report on Turkey from September 2020 are extracted below:
3.2 Although official figures are not available, international observers estimate around 15 million Turkish citizens identify as Kurdish. The Kurdish population has traditionally been concentrated in south-eastern Anatolia, where they form the majority ethnic group, and north-eastern Anatolia, where they constitute a significant minority. Significant Kurdish populations also live in Istanbul and other major cities.[3]
2.3 Kurdish resistance to central rule in majority Kurdish areas has been a recurrent feature of modern Turkish history. An insurgency led by the Kurdistan Workers’ Party (PKK) killed an estimated 40,000 people between 1984 and a ceasefire in 2013. The ceasefire collapsed in July 2015, leading to a resumption of security operations- over 5,000 have been killed since.[4]
3.8 While Kurds participate in all aspects of Turkish public life, including government, the civil service and military, they have traditionally been under-represented in senior positions. Some Kurds employed in the public sector have reported a reluctance to reveal their Kurdish identity for fear of negatively affecting their prospects for promotion. DFAT assesses Kurds are more likely to obtain public sector employment at the sub-national level, particularly in areas where they are in the majority.
3.9 Notwithstanding government efforts to wind back discriminatory restrictions on the public expression of minority identity, DFAT assesses Kurds in Turkey face official discrimination and some sporadic societal discrimination based on their ethnicity. The extent and form of this discrimination depends on geographical location and personal circumstance. Those residing in the southeast, and those active (or perceived to be active) in Kurdish political or civil society organisations are at higher risk than those who are not politically active, or those who support the AKP…. (emphasis added)
[3] DFAT Country Information Report Turkey, September 2020, 3.2 [DFAT 2020].
[4] Ibid, 2.3.
Minority Rights Group discussed the situation for Kurds in February 2024:
Türkiye’s Kurdish community, besides being the largest minority in the country, is also one of the most discriminated against. Their situation deteriorated further following the outbreak of fighting in 1984 between the government and the Kurdistan Workers’ Party (PKK), an armed opposition group fighting for self-determination. Increasing violence on both sides has resulted in the displacement of millions of civilians.[5]
[5] Kurds in Türkiye - Minority Rights Group.
It is widely reported that the Kurdish identity continues to be stigmatised in Türkiye, and Kurds living in cities such as Istanbul and Ankara can be at risk of discrimination whether or not they express their political views.[6] Some Kurds do not disclose their identity because they feel ‘fear and uncertainty’ in cities where they are a minority. Speaking Kurdish can endanger those speaking it loudly and individuals who assault Kurds are tolerated and often released without charge.[7] The 2023 US Department of State report found that Kurds and members of Kurdish opposition-groups continue to be arrested and detained.[8]
[6] Paragraphs 31 and 32 are taken from ART Decision 2009191, 4 November 2024 (C Wall), paras 40-41. I have considered this report and find it to be a convenient and current summary so I adopt the reasoning contained here.
[7] 'Country policy and information note Kurds Türkiye February 2020', United Kingdom (UK): Home Office, 1 February 2020, p.10, 20200302142425; 'In Türkiye, life for Syrian refugees and Kurds is becoming increasingly violent', Yasin Duman, The Conversation, 2 November 2020, 20210324145100; For examples see; '‘The moment when they attacked us still haunts me', Bianet, 7 September 2020, 20210324150049;; 'Kurds in Türkiye increasingly subject to violent hate crimes', Deutsche Welle, 22 October 2019, 20191025092528; 'Teenager killed for ‘speaking Kurdish’ in northwest Türkiye', Ahval, 14 October 2019, 20191015145637
[8] Country Reports on Human Rights Practices for 2022 – Türkiye', US Department of State, 20 March 2023, pp.85-87, 20230322100444
The Netherlands General Country of Origin Information Report 2022 says that the Turkish police justify night-time house raids by referring to Article 118 (2) of the Turkish Criminal Procedure Law, which states that a night-time house raid is permitted if the suspect may be caught red-handed or if delaying the house raid gives rise to danger.[9]
[9] Ministry of Foreign Affairs of the Netherlands General County of Origin Information Report – Türkiye. March 2022 at 47.
The DFAT Country Report has this to say about Alevis:
3.19 In the absence of official figures, estimates of the size of the Alevi population vary considerably, although most credible estimates are between 10-25 million. Many Alevis are also Kurds, although estimated numbers again vary considerably (between half a million and several million). DFAT understands Kurdish Alevis are more likely to identify primarily as Alevi. …
3.21 The Turkish state does not recognise Alevism as a separate religion and considers Alevis to be Muslims. Cemevis are not recognised as official places of worship at the national level and, unlike mosques, do not receive public funding to support their construction or maintenance. The ECHR ruled in April 2015 that the Turkish government was violating the European Convention by not recognising Alevi places of worship and religious leaders. In November 2018, the Supreme Court of Appeals ruled cemevis should receive the same benefits as mosques, including exemption from utility bills. Some municipalities have voted to recognise the status of cemevis, particularly those under CHP leadership, and agreed to pay for utility bills.
3.24 Although the Alevi community suffered significant societal violence in the past, DFAT is not aware of any instances of significant societal violence against individuals in the community in recent years. In 2019, several cemevis and Alevi tombs and shrines were vandalised and covered with graffiti with derogatory statements and painted red ‘X’ marks. Like other religious minorities, Alevis have occasionally been the subject of negative portrayal in state media, and subjected to low-level societal threats of violence.
3.25 DFAT assesses Alevis face a low risk of official and societal discrimination. While they do not enjoy the benefits of official recognition as a separate religion, they are generally able to worship freely and participate in most areas of Turkish life, including politics. Kurdish Alevis do not face any additional religious based discrimination beyond those who only identify as Alevi.
A cemevi in Istanbul was subject to attack and vandalism with threatening messages in 2021.[10]
[10] Investigation launched into attack on Istanbul cemevi, DuvaR.English, 20 January 2020, link provided by applicant.
Kurdish political activists are targeted by Turkish authorities as DFAT reports:
3.42 Political parties representing Kurdish interests have traditionally faced strong opposition from the Turkish state, and the government has declared many pro-Kurdish parties illegal on the grounds they have provided support for the PKK. …
3.45 DFAT assesses pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for high-level politicians and low-level activists, and applies nationwide.
In its submission to the 49th session of the Universal Periodic Review Working Group, Amnesty International commented on freedom of assembly as follows:[11]
17. Turkish authorities intensified the crackdown on protests critical of the government, and routinely restricted the right to peaceful assembly through temporary and/or blanket bans, unlawful use of force, arbitrary detention of protesters and the use of laws to criminalize protesters through criminal investigations, unfair prosecutions, and other punitive measures such as judicial control measures.
18. Authorities defied Constitutional Court decisions, which require them to lift unlawful restrictions on the exercise of the right to peaceful assembly of Saturday Mothers/People and May Day demonstrations in Istanbul.
19. Despite two Constitutional Court decisions (2022 and 2023), the authorities used excessive force to prevent Saturday Mothers/People from holding their peaceful vigil, allegedly subjecting protesters to torture and other ill-treatment while routinely detaining the participants. Since November 2023, a small group, limited to ten people, are allowed to gather, which falls short of their legitimate demand to open access to the Galatasaray Square.
[11] Amnesty International, Türkiye: Deep Erosion of Human Rights (2024) (references omitted).
The use of torture in police custody is extensively documented, including by the UN Committee to Prevent Torture, Türkiye’s Human Rights Association, the UN Special Rapporteur on Torture, and the Ankara Bar Association. Further, most perpetrators benefit from impunity.[12]
[12] For example, DFAT 2020 4.8-4.14.
On International Day in support of victims of torture 2024, three Turkish human rights organisations issued a report covered by a media release, copied here:
Turkey ratified the UN CAT [Convention Against Torture] in 1988 and prohibited tortured in its Constitution and the Turkish Penal Code. Torture, however, has maintained its existence as a systematic state practice not only during periods of military coup d’etats but throughout the history of the republic….torture remains the most prominent human rights problem in Turkey despite its absolute prohibition and qualification as a crime against humanity. [13]
[13] Human Rights Foundation of Turkey (HRFT), Human Rights Association (iHD), Turkish Medical Association (TMA) Human Rights Branch, ‘Against the Global Humanitarian Crisis We Stand Against Torture Protecting Human Rights Values’ 26 June 2024, media release Joint Report: Torture in Its Various Dimensions in Turkey in 2023 – İHD, included in representative’s submission.
Does the applicant satisfy the refugee criterion for protection?
Real chance of serious harm
Having considered [the applicant]s] circumstances cumulatively, I find that if he returns to Türkiye he will have a profile as a Kurdish Alevi leftist protestor with a record of being arrested and detained. He is associated with [Organisation 1], Grup Yorum and the Idil Cultural Centre, the last of which was subject to police raids six times in two years.[14] In this context, I note that the Turkish government considers [Organisation 1] to be a front for the Marxist-Leninist DHKP-C. Further, I find that he will be associated with his brother [Brother A] who was convicted of the crime of destroying the constitutional system by force as a member of the DHKP-C terrorist organisation and sentenced to life imprisonment, adjusted to 15 years due to his age.
[14] Operation Against İdil Cultural Center 26 February 2019, link to news item provided by the applicant.
Having considered [Applicant 2’s] circumstances cumulatively, I find that if she returns to Türkiye, she will have a profile as an Alevi who is married to [the applicant]. Through [the applicant], she will be associated with his brother [Brother A].
DFAT reports on returnees that:
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.[15] (emphasis added)
[15] DFAT 2020, 5.27.
Subsection s5J(5)(a)-(c) of the Act provides the following indicative examples of serious harm:
(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; …
I find that [the applicant] fears arrest, detention, interrogation, torture, being sentenced to life imprisonment and being killed by Turkish authorities if he is returned to Türkiye. [Applicant 2] fears the same forms of harm, with the addition of sexual assault and/or rape, if she is returned to Türkiye. These forms of harm clearly amount to serious harm as defined by the Act. Based on the applicants’ past experiences and the country information, I find that these fears are well founded and that the harms feared amount to serious harm.
I have taken into account the applicants’ personal vulnerabilities when assessing the impact of the harm feared on them. [The applicant] gave evidence that his past experiences had had a negative impact on his mental health and he had not yet been able to access support for this as he had been focussed on settling into Australia. I accept that his experiences in Türkiye have traumatised him and that the past almost seven years of uncertainty in Australia have exacerbated his difficulties. This psychological vulnerability further strengthens my finding that the harm he would face if returned to Türkiye would constitute serious harm.
On this basis the Tribunal accepts that there is a real chance that, if returned to Türkiye, the applicants would be persecuted: s5J(1)(b) of the Act.
Reason for the feared harm
If a person fears persecution for one or more of the reasons mentioned in s5J(a)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s5J(4)(a).
[The applicant] fears harm because of his Kurdish ethnicity, his Alevi religion, his political opinion and his membership of the particular social group, formulated as either family member of a convicted DHKP-C member and a member of a family of anti-government activists.[16] [Applicant 2] fears harm because of her Alevi religion and her imputed political opinion based on her association with her husband and his brother [Brother A].
Kurdish ethnicity
[16] Submission on behalf of the applicant, 15 November 2024, para 10.
According to DFAT, ‘Kurds in Turkey face official discrimination and some sporadic societal discrimination based on their ethnicity.’ DFAT goes on to state that ‘those active (or perceived to be active) in Kurdish political or civil society organisations are at higher risk…’[17] Reports from Minority Rights Group and the US Department of State support this assessment. Further, DFAT assesses that
pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for high-level politicians and low-level activists, and applies nationwide. (emphasis added)[18]
[17] DFAT 2020, 3.9.
[18] Ibid 3.45.
As noted above, failed asylum seekers who are Kurdish or political activists are likely to come to the attention of the Turkish government on return. Hence, there is a real chance of serious harm to people of Kurdish ethnicity. This is particularly true of failed asylum seekers who are political activists, regardless of whether they have a high profile.[19]
Alevi religion
[19] Ibid 5.27.
The applicants’ evidence that Alevis are discriminated against and that the Alevi religion does not enjoy the same recognition as Sunni Islam is consistent with the country information on Türkiye. In itself, being Alevi is insufficient to ground a claim to fear persecution. However, considered cumulatively with the other aspects of their claims, it contributes to raising their profile to persons who face more than a remote chance of serious harm.
Political opinion
[The applicant] faces a real chance of serious harm due to his actual political opinion. In addition to his pro-Kurdish activism, his participation in activities and protests organised by [Organisation 1], May Day protests, [Location 1] protests, beatings by police at demonstrations between 2013 and 2016, and regular attendance at Idil Cultural Centre mark him as a leftist, pro-Kurdish, anti-government activist. Further, [the applicant] faces a real chance of serious harm due to his imputed political opinion. His association with his brother [Brother A] and with prominent government critics such as Grup Yorum, through [Brother A], means that Turkish authorities will target him if he is returned to Türkiye.
[Applicant 2] faces a real chance of serious harm due to imputed political opinion. As outlined, her husband is at risk due to both his actual and imputed political opinion. Further, [Applicant 2] is associated with her brother-in-law [Brother A] through her husband. At hearing, [Applicant 2] claimed to fear being kidnapped and other forms of serious harm because the Turkish authorities target family members of persons of adverse interest. This practice is evident in human rights abuses globally and supported by DFAT’s reporting on Türkiye.[20]
Particular Social Group
[20] DFAT notes that the Turkish government has imposed travel bans and confiscated the passports of family members of those suspected to be members of the Gűlen movement: Ibid 3.40.
As I am satisfied that there is a real chance that the applicants face serious harm on the basis of Kurdish ethnicity ([the applicant]), Alevi faith, and political opinion, it has not been necessary for me to consider the claims relating to membership of a particular social group, variously formulated, some of which overlap with the claim based on imputed political opinion.
Conclusion on reason for the feared harm
For these reasons, the Tribunal accepts that the essential and significant reasons for the harm [the applicant] fears are his Kurdish ethnicity, his Alevi religion, and his actual and imputed political opinion. The Tribunal accepts that the essential and significant reasons [Applicant 2] fears harm are her Alevi religion and her imputed political opinion based on her association with her husband and his brother [Brother A]. The Tribunal finds that the applicants fear harm for s5J(1)(a) reasons.
Other requirements
Requiring the applicants to modify their behaviour to avoid a real chance of persecution is impermissible, as it would involve altering their religious beliefs; concealing their ethnicity in the case of [the applicant]; or altering their political beliefs, contrary to s5J(3)(c)(i)-(iii) of the Act.
Based on the country information about the targeting of Kurdish, leftist and anti-government political activists and discrimination against Alevis, the Tribunal accepts that the persecution involves systematic and discriminatory conduct as required by s5J(4)(c).
As the agents of persecution are the state authorities, a real chance of persecution relates to all areas of the country (s5J(1)(c)) and no effective protection measures are available: s5J(2).
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
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·both applicants meet s 36(2)(a) of the Migration Act.
Date of hearing: 21 November 2024
Representative: Mr Kevin Williams-Besy
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.
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