2108973 (Refugee)

[2024] AATA 3911

2108973 (Refugee) [2024] AATA 3911 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Reyhan Ozdemir (MARN: 1573815)

CASE NUMBER:  2108973

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Genevieve Hamilton

DATE:28 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2024 at 2:23pm

CATCHWORDS
REFUGEE – protection visa – Turkey – ethnicity, religion and imputed political opinion – Kurdish Alevi – discrimination and personal attacks, and bombings in local area – husband/father denounced as PKK supporter and investigated – union member and critic of workplace system – relatives PKK members and other relatives detained and tortured, or left country – mental health – no fear of harm claimed in visitor visa application – evidence confusing but credible, with authentic and relevant documentary evidence – claim of divorce and loss of contact with husband not accepted – members of family unit – oldest child considered draft evader – country information – fear of harm partly from Turkish authorities and real chance of serious harm relates to all areas – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), 65(1)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 September 2017.  The delegate refused to grant the visas on 9 July 2021.

3. The applicants attended a hearing of the Tribunal on 26 April 2024, resumed on 25 May 2024.  The Tribunal also received oral evidence from the primary applicant’s sister-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

4. The applicants were represented in relation to the review.  

   CRITERIA FOR A PROTECTION VISA

5. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

6. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

7. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

8. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

9. 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.

10. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

12. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

13. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

14. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

15. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

16. 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.

    CLAIMS AND EVIDENCE

17. The applicants are a mother (“the applicant”) and her 3 sons.  They came to Australia on a visitor visa.  In sponsoring them for a visitor visa the applicant’s sister in law (the sister of the applicant’s (now ex) husband) said that the family was not affected by politics or terrorists or anything that could cause harm and that they had never suffered any kind of bad treatment. 

18. In her protection application the applicant said she was born in [Municipality 1], Gaziantep, Turkey in [Year].  She has a Turkish national identity card.  She is married ([2001]).  She travels on a Turkish passport.  Included in the application are her son [the second applicant] born [Year] in [Municipality 1], [the fourth applicant] born [Year] in [Town] (Gaziantep) and [the third applicant] born 2014 in [Municipality 2] (Gaziantep).  The applicant and all the children are Turkish citizens.  They left Turkey legally [in] July 2017 arriving [in] August travelling on their Turkish passports (obtained legally from issuing authority). 

19. The applicant identified her husband as [Mr A] born [Year] in [Municipality 1], residing in [Municipality 2].  The applicant stated that she calls her husband daily.  She said she speaks, reads and writes Turkish and Kurdish.  The applicant has travelled abroad previously: from [January] to [February] 2016 to [Country 1] to visit family and from [February] to [February] 2016 to [Country 2] to visit family.  The children went with her.  She went to school until [Year] (primary).  From 2011 to [August] 2017 she had a store selling [product] in [Municipality 2].  The children were all going to school in Gaziantep, the first child finished high school in [Year]. 

20. The applicant said she and her family were subject to discrimination, personal attacks and bombs had gone off in her stop front, and functions they were invited to.  Her husband had been denounced publicly by the government as a PKK supporter/accomplice and been sent on leave from work until further investigation.  This all happened before they arrived.  Her husband called and informed the applicant not to return as he is concerned for their safety and their lives.  He had returned to work and passed government investigation however people in the public are threatening him and his family.  They had been harmed by the government, members of the public and terror organisations, because they are Kurdish and because extended family were members of the PKK.  The applicant is afraid that she and her family will be bombed.  The husband informs her that everyone is turning their backs on them, not dealing with them in business any more as they are accused of being PKK supporters, they are getting verbal threats and the government is watching them.  If they are not hurt by the public the government will catch them.  The government encourages people to inform on members of the PKK.  People detained are not released and are suffering torture.  Anyone accused is not allowed employment or education, and are suffering harassment, discrimination and assault.  The applicant children had experienced bad language at school, were bullied, harassed and emotionally devastated. 

21. The applicant’s then husband [Mr A] made an undated typewritten statement which in translation contains the following points.  He was [an occupation].  In 1994 [his] maternal uncle [Mr B] joined the PKK.  He was two years older than [Mr A].  [Mr A]’s father, his grandfather ([Mr B]’s father) and [Mr A] were all arrested and detained unlawfully on 3 or 4 occasions and tortured.  In 2006 the uncle died and the family could not even attend his funeral.  After the fall of Kobani (over the border in Syria), their town was surrounded by nationalists and ISID (ISIS in Turkish) militias.  His workplace was attacked and he hid under wooden paling, his car was smashed and he was injured by wooden baton.  Their business (a [shop]) is located directly under their home, which they own.  A few months after Kobani, a bus was set on fire in front of their building which sustained extensive damage.  They tried in vain to get crimes compensation through the Turkish courts. 

22. He was listed as a suspended [occupation] with PKK affiliation, for four months.  He was detained and arrested three times, threatened and released.  Then he was allowed to return to [his job].  This was all because of having extended family members involved in the PKK and HDP.  He continued to be threatened and intimidated by people randomly showing up in front of the [workplace].  Their business is 200m away from the [workplace].  Across the street from their business is the HQ of the HDP, which he frequents often because he and his family are supporters.  He is also a member of [his work] union.  Being Alevi-Kurdish, and with his political beliefs and union membership, this was enough for him and his family to be constantly under attack by ISID sympathisers, state agencies and other ultra nationalists.  He was also critical of the inadequacy of the [workplace] system. 

23. Two streets behind their home [an event] was held, attended by their long standing political friends and neighbours.  He and his brother were there all day and left 20 minutes before the bombing.  They heard it, and he went back to an indescribably horrific scene.  18 [specified people] had died and he lost over 20 friends, and all the victims were families in his neighbourhood.  He decided to secure his wife and children’s future. 

24. On 28 February 2019 the representative wrote to the Department stating that the applicant’s husband had asked her for a divorce because her [Mr C] brother protested and was identified as a PKK supporter in [Country 2] [in] March 2018.  The news has aroused hatred for the applicant and her children.  The applicant submitted a copy of her ex husband’s new family register which, translated, shows he divorced [in] February 2019. 

25. The applicant submitted an article and translation about the capture and execution of [Mr B].  She also submitted a letter from [Organisation] saying that the applicant is a volunteer there and supporting her protection application. 

26. The applicant submitted a number of letters from her psychologist indicating that she has an adjustment disorder with depression and anxiety, and therefore does not have the capacity for work, and needs continued financial support.

27. The applicant submitted the following regarding her brother [Mr C]: [Organisation] membership, evidence of a [legal procedure in Country 2], prison release documents (he was detained from [April] to [July] 2018), passport surrender order and receipt.  In a chronology of events largely consistent with her claims the applicant said that [Mr C] went to fight with the Kurds during the siege of Kobani. 

28. The applicant submitted a number of articles including one about the bombing of [an event] in [Municipality 2] attended by HDP members and suspected of being carried out by the ISID in August 2016 (51 dead, 91 injured).  Another refers to the April 2014 attack on the bus during demonstrations following Turkish police shoot boy dead in Diyarbakır during altercation - Türkiye News (hurriyetdailynews.com).  Another refers to the spill over of the Kobani battle into Turkey Turkey: Kobani protests in Turkey: Human rights failures (amnesty.org).

29. The applicant was interviewed by the Delegate in April 2021.  She said she had not had contact with her ex husband for nearly two year; as far as she knows he is still in Turkey.  He has remarried.  He said it was because of the community pressure over her sibling being connected to the PKK.  She said the two younger children do not know of the divorce and her older son refuses to have contact with his father.  She has some contact with her parents who have relocated to a village in Gaziantep.  She was able to go into [Country 1] because she had a [specified] passport (by virtue of her ex husband being [an occupation]). 

30. The applicant said there was still a lot of discrimination and pressure for Kurdish people in Turkey and she came to Australia to get away from this.  Her ex husband’s uncle (who is also her uncle, as they are cousins) was a member of the PKK.  [An event] near their house was bombed.  The Delegate noted that since the applicant’s ex husband already had a PKK connection he would not divorce her because of her brother.  The applicant said it was also because he is [an occupation] “that he ran away from us”.  The Delegate pointed out that on her own evidence her ex husband was already being investigated for ties to the PKK.  The applicant agreed with this.  He had attended the funeral of [specified people] who were killed at the [event] and photos were taken.  A lot of [people in his occupation] were suspended at this time because of the attempted coup. 

31. Asked if she herself was politically active the applicant said the Kurdish party met next to her house and she went to meetings.  She had difficulty naming the organisation and what went on in the meetings. 

32. At the hearing the applicant said her father spent a long time in [Country 1] coming and going in the 70s and 80s.  [Mr D], [Mr C] and [Mr E] and [her] sisters all live overseas.  [Mr D] went to [Country 1] about 30 years ago.  They all left illegally and claimed and were granted asylum.  Most of her relatives live in Europe.  Most of her ex husband’s surviving siblings have also gone abroad. 

33. Asked why she didn’t apply for protection when she was in [Country 1 or 2], the applicant said it was not a good environment for young people.  The nieces and nephews disrespect their parents. 

34. Her ex husband is the son of her paternal uncle [Mr F].  [Mr B] was a first cousin of her father, and was also the brother of her ex mother in law.  Her ex husband was [an occupation] for 20 years and is still [doing his job] now.  He is not providing any child support. 

35. When [Mr B] joined the PKK the police and security forces were coming to the house and searching and questioning everyone.  Everyone including her mother in law was taken for questioning.  When they came back they said they had been beaten.  [Mr B] called the house one day using a code name and gave them a contact number for himself; she had to hide it.  When he was killed the men of the family couldn’t even go and collect his body to take it to grandfather’s house in [Municipality 1] as per custom because the Turkish community and the military were out in force threatening them and said they would burn down the house. 

36. The Tribunal asked the applicant about the burning of the bus.  The applicant said it was targeted at the Kurdish Association and stones were thrown at the window.  She was unable to explain who bombed the bus and why. 

37. Her brother [Mr E] came from [Country 2] for the [event] that was bombed.  Her husband and his brother went as well.  Her husband called her and told her about the bombing.  [Specified people], friends, neighbours had been blown to pieces.  She went, holding her youngest in her arms, and helped get people to hospital.  They went to all the funerals.  This was when her husband was suspended. 

38. The Tribunal asked the applicant about her own involvement with Kurdish activists.  The applicant again had difficulty with specifics about this, although she said the Kurdish association was near her house and she used to go to all the meetings. 

39. There was a discussion of [Mr C]’s legal difficulties in [Country 2].  The applicant said his friend had been hit on the head during a protest and died.  He is now banned from Turkey.  The Tribunal asked for further documentation concerning his trial (see below). 

40. The applicant said her ex mother in law [was] still being sued for blood money by the families of people they said were killed by [Mr B] even though he died in 2006 (see below).

41. The applicant confirmed that [Mr C] went to the siege of Kobane.  He called to say he was going there.  Her father was very worried and went and brought him back.  He stayed with the applicant for a few days.  She did not know how he got into Syria but he was only there for about 10 days.  He is a member of a pro-Kurdistan organisation in [Country 2].  To her knowledge her other siblings are not. 

42. The applicant said she ran the [shop] while her husband [worked].  Asked whether it was still going she said it was, but her sister in law and son corrected her and then she said it was closed.  Asked why she wasn’t asking her ex husband fo child support she said she does not want to have anything to do with him. 

43. The eldest son [the second applicant] gave evidence at the hearing.  He described a history of being discriminated against and bullied by students and teachers at school.  In his teen years he avoided crowded social events because of the risk of bombings.  He remembered his father being suspended from [his job].  He remembered the bombing of the [event] and his father talking about the people who had been blown to pieces and that relatives had come from abroad to attend the event.  His impression was that his family were tagged as PKK terrorists because they do have family members who are/were supporters of the PKK.  They did not seek protection in [Country 1 or 2] because they wanted to get away from the Kurdish separatist activism in those countries.  He also noted that he was now considered a draft evader and if he returned to Turkey he would be made to serve in the most dangerous places fighting against his own Kurdish people.  His brothers also faced the same fate in due course.  He said that divorce was considered very negatively in his culture which is why they were trying to keep this information from his younger brothers during their vulnerable years.  He himself has been acting as their father since they came to Australia. 

1. The applicant’s sister in law [Ms G] gave evidence supporting the applicants’ claims to protection.  The Tribunal put to her that she had indicated in the visitor visa sponsorship that the family faced no problems at all which was intended to convey that they had no plans to apply for protection, whereas that apparently was the intention all along.  [Ms G] maintained that there was no such plan until the family came to Australia. 

2. The applicants’ psychologist said the applicants were all traumatised by the things they had witnessed and experienced and that the applicant was not psychologically capable of working because she was obsessed with the safety of her children. 

3. The following were among pertinent materials submitted prior to the hearing and the resumption of the hearing: a family tree verifying various relationships; a translated civil lawsuit by an injured soldier enforcing a long-standing criminal damages order against a number of people including the heirs of [Mr B] for an attack carried out by the PKK in 2006; a confirmation from the Turkish Defence Ministry that [the second applicant] is a draft evader and if he does not make the roll call by May 2024 he will be subject to penal action; documentary evidence of the applicant’s ex-husband’s suspension as [an occupation] in 2016 due to having contact with the PKK; a statement by [Mr C] outlining the history of how he became a pro-Kurdish activist, and that demonstrations against Turkey in [Country 2] “escalated” resulting in he and others being arrested for setting fire to consulate vehicles, he was in prison for four months but the case has remained open and another court hearing is pending; a document in [Country 2 language] verifying that [Mr C] has been charged with a terrorism offence over the burning of a car belonging to an employee of the Turkish consulate in [Country 2], detailing the forensic evidence including phone intercepts. 

   FINDINGS AND REASONS

4. Based on the information on their files, the Tribunal finds that the applicants’ country of nationality is Turkey and that they do not have a right to enter or reside in any third country.

5. The applicants claimed to fear harm based on their ethnicity, religion and imputed political opinion (pro-PKK).  The Tribunal accepts that the applicants are Kurdish Alevi.  The Tribunal’s decision focuses on their imputed political opinion.

6. The evidence of the applicant was confusing but credible, her eldest son gave helpful and credible evidence.  The oral evidence and written claims were supported by authentic and relevant documentary evidence.  The Tribunal accepts that the applicants are identified as family members of a deceased PKK fighter and continue to be of interest to the authorities in relation to [Mr B].  It accepts that they are close relatives of a known current PKK terrorist in [Country 2] ([Mr C]) putting them on the radar of the Turkish authorities.  They are also in general supporters of Kurd ethnicity putting them further at risk of imputation with a pro-PKK opinion.  It accepts that the extended family was questioned and mistreated around 2006 in relation to [Mr B].  It accepts that the applicant’s ex husband was suspended from [his job] in 2016.  It also accepts that the applicants have been at close quarters to traumatic terrorism events in Gaziantep which have brought them to the attention of the authorities.    

7. That said, there are untruths in the applicant’s evidence.  She is in contact with her ex husband (after all she obtained his family register).  She knew the shop was still going (the Tribunal prefers her unprompted evidence on this).  She knew her ex husband was still working as [an occupation].  The Tribunal was not satisfied by her answers regarding why he is not supporting her and their children financially, leaving them to rely on Australian charity.  It is not satisfied that he divorced her because of the actions of [Mr C].  And the information provided in the visitor visa application was deliberately false. 

8. The DFAT country report for Turkey states that

   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. 

   …

   DFAT assesses reports of torture in Turkish police stations and detention facilities, particularly in the southeast, and in the period immediately following the 2016 attempted coup, are likely credible. People who have undergone torture at the hands of officials are highly unlikely to receive redress through official channels.

   …

   International and domestic human rights groups have expressed concerns the government has taken only limited steps to investigate, prosecute, and punish members of the police and other security forces accused of corruption and human rights abuses (including historical allegations), leading to perceptions of impunity. Human rights observers have also expressed concerns over allegations police and other security forces mistreated and tortured detainees.

9. Based on the country information, and considering their claims on a cumulative basis, the Tribunal is satisfied that the applicants face a real chance of serious harm as defined, for reasons of their imputed political opinion.  Effective protection measures are not available to the applicants as the harm they fear is partly from the Turkish authorities who govern all of Turkey. 

10. Based on the country information, the Tribunal is not satisfied that the risk of serious harm to the applicants is localised, or that there is any particular locality where they do not face a real chance of serious harm for reasons of their imputed political opinion.  The real chance of serious harm therefore relates to all areas of Turkey. 

11. Accordingly, the Tribunal finds that the applicants are refugees as defined in the Act. 

    CONCLUSION

12. 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

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

    Genevieve Hamilton
    Member