2213287 (Refugee) - [2025] ARTA 1684

2213287 (REFUGEE) [2025] ARTA 1684 (8 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2213287

Tribunal:General Member A Anderson
Date:8 May 2025

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:
·s 36(2)(a) of the Migration Act.

Statement made on 08 May 2025 at 1:18pm
CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurdish ethnicity – religion – Alevi – political opinion – association with the Communist Party of Turkey/Marxist Leninist – opposition to the AKP Party – Kurdish protests in Australia – detentions – physical assault – killings of family members – mental health issues – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
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 2
CASES
AGA16 v MIBP [2018] FCA 628
SZTEQ v MIBP (2015) 229 FCR 497
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 1 September 2022 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, applied for the visa on 17 February 2017. The delegate refused to grant the visa on the basis that the applicant did not face a real chance of serious harm or a real risk of significant harm on return to Türkiye.
The applicant lodged an application for review of that decision with the former Administrative Appeals Tribunal (AAT) on 9 September 2022. The applicant was represented in relation to the review.
On 14 October 2024, the 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The Tribunal notes there have been significant delays in hearing this matter, due to a decline in the applicant’s mental health and concerns raised by the applicant’s representatives about his mental health and capacity to give evidence at hearing.
The applicant was first invited to a hearing on 13 November 2024 to give evidence and present arguments before a differently constituted Tribunal. The applicant’s representative made a request for postponement on 16 October 2024. In this request the applicant’s representative advised that the applicant was hospitalised between [dates in] June 2024 and [July] 2024 due to an acute psychiatric episode and provided a letter from [Health Service 1] dated 8 October 2024. The letter advised that the applicant was at that time engaged with the [Health Programme 1] program with [Health Service 2] for a 12-week period from [August] 2024.[1] The hearing was rescheduled to 21 January 2025.
[1] According to this letter, [this] program ‘provides 12 weeks of [support] to people leaving hospital following a suicidal crisis’.
On 10 January 2025 a second postponement request was made in order for the applicant to reengage with his mental health practitioners. The Tribunal (differently constituted) agreed to postpone the hearing to 14 April 2025. The Member previously constituted this case was subsequently unable to proceed with the review and the matter was reconstituted to the presently constituted Tribunal.
The scheduled hearing on [a day in] April 2025 before the presently constituted Tribunal did not proceed. The Tribunal was advised by the applicant’s representative on the day of the scheduled hearing that the applicant had made a suicide attempt that morning. Given the circumstances, the hearing was cancelled.
On 22 April 2025, the Tribunal sought updated information in writing from the applicant about his claims. The Tribunal received a response to its request on 6 May 2025. In this response, the applicant’s representatives noted that the applicant was currently receiving treatment at [Health Service 1] but that his mental health condition had not markedly changed as he had not yet received full long-term support. The representative advised that the applicant was on a waiting list for that support and that it was due to commence in the next few weeks.
The Tribunal has reviewed the documentary evidence and material before it, which includes the applicant’s statutory declaration and submissions to the delegate, identity documents, support letters, medical reports, and submissions to the Tribunal. It has also listened to the audio recording of the protection visa interview with the departmental delegate.
In light of the applicant’s history and present mental health status, the Tribunal has determined there is little utility in delaying the proceedings further in circumstances where the applicant may not regain the capacity to meaningfully participate in a hearing for some time and where the claim can be resolved in the applicant’s favour without holding a hearing.
Having considered all of the information before it, the Tribunal has proceeded to make a decision without a hearing under s 106(3) of the Administrative Review Tribunal Act 2024 as the decision is wholly in favour of the applicant (s 106(3)(b)(i)) and it appears that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding as required by s 106(3)(b)(c).
BACKGROUND
The applicant is [an age]-year-old male from Istanbul, Türkiye. His parents and [a sibling] reside in Istanbul. The applicant has never been married and does not have any children.
The applicant has university qualifications in [subject] and worked as an [occupation 1] at various companies prior to departing Türkiye. In Australia, he works in [industry 1].
The applicant arrived in Australia [in] November 2015 as the holder of a student visa. He lodged his application for a protection visa on 17 February 2017.
Evidence before the Department
The applicant’s protection visa application was accompanied by a statutory declaration dated 10 February 2017, in which the applicant set out his background, experiences in Türkiye and fears of harm on return. He provided a number of Turkish identity documents[2] with his application as well as his university diploma and a military discharge certificate relating to the completion of his compulsory military service in 2015.
[2] Namely translated copies of a current and previous Turkish passport; birth certificate; national identity card; driver’s license.
In summary, in his statutory declaration the applicant stated as follows:
a.He is of Kurdish ethnicity and Alevi faith and has been persecuted in connection with these characteristics as well as for being in opposition to the government;
b.His parents were both born in Erzincan and migrated to Istanbul due to persecution by the authorities. The applicant’s mother was arrested, detained for a month and tortured after the 1980 military coup due to her alleged membership in the Communist Party of Turkey/Marxist Leninist (TKP-ML). One of her first cousins was killed by members of the ultra-nationalist party MHP in [specified year]; [other] cousins were arrested and imprisoned for many years for political reasons;
c.The applicant grew up concealing his Kurdish ethnicity and Alevi faith;
d.The applicant began experiencing problems from 2006 when he began attending [University 1]. The applicant and other Alevi students were approached by Muslim students trying to offer reward for following their Muslim practices;
e.The applicant complained to the university and otherwise resisted this intimidation, culminating in a fight in March 2007 between the applicant and his friends and Muslim students. The fight was broken up by police who arrested the applicant and his friends. The applicant was taken to a police station and held for hours, during which time he was interrogated, warned about the Kurdish Workers Party (PKK), and threatened not to be involved in illegal activities before being released without charge;
f.The applicant was subsequently arrested and detained for short periods as follows:
i.In March 2012 following his attendance at the Newroz celebration in Istanbul;
ii.In June 2013 following his attendance at demonstrations following the Gezi Park resistance. The applicant attended on multiple days aligned with the ‘[Group 1]’.
g.The applicant was beaten by the police and/or subject to tear gas and other demonstration of excessive force:
i.while attending Newroz celebrations and other demonstrations;
ii.while attending the funeral of a [person] named [Mr A] in March 2014. [Mr A] was killed by a tear-gas canister fired by the police in June 2013;
iii.while part of a group of people attacked by the police near the People’s Democracy Party (HDP) office in [Town 1] in September 2015. The applicant had gone to the HDP office upon hearing that a large group of Justice and Development Party (AKP) supporters were headed there;
h.The applicant experienced discrimination, bullying and harassment on account of his ethnicity and/or religion from members of society as follows:
i.At his workplaces, particularly at [Employer 1] where the majority of staff were AKP members who made comments about the way the applicant dressed, and why he did not have a beard or pray the way they did;
ii.During his compulsory military service in 2015, during which time his superiors, who were nationalist Turks, made negative comments about Alevi Kurds;
iii.In July 2015, when the applicant was beaten by a group of Muslim men with beards because he had earrings and a hat they did not approve of. They told the applicant a ‘proper man does not use earrings’. The police took the applicant’s report of this incident but did not take further action;
i.In April 2014 two undercover police officers went to the applicant’s home in [Town 2]. The applicant was not home, but the police told his parents they wanted to talk to him and said the applicant should be careful because he was under surveillance. They questioned the applicant’s parents for an hour and said they would visit again. They did not return.
The applicant stated that he feared harm because he has already been targeted by Turkish authorities and religious groups supported by the AKP government, and that following the attempted coup and declaration of the state of emergency in July 2016 the situation has worsened in Türkiye. There has been a crackdown and thousands of Kurds and opposition groups have been arrested or lost their jobs.
The applicant was interviewed by the Department on 12 August 2022. At the interview he provided additional claims that since he had been in Australia, his parents had again been visited by the police in 2016 and 2018 looking for the applicant.
The applicant’s representative provided post-interview submissions on 18 August 2022, addressing further questions in writing due to time constraints of the interview of 12 August 2022. The submissions provided further information about the applicant’s fears on return and why he could not internally relocate in Türkiye or ask the authorities for protection. It was also submitted that the applicant has mental health issues due to his past traumatic experiences and that he feels anxious and overwhelmed when speaking with authorities in Australia due to his past experiences.
The applicant’s representative also provided a letter from [Mr A] of [Community Organisation 1], dated 25 June 2021. [Mr A] stated that the applicant has been an active member of [Community Organisation 1] since 2017 and that he volunteers at events and [activities].
The delegate accepted much of the applicant’s evidence in relation to his past experiences as credible. The delegate accepted that the applicant:
a.is an Alevi Kurd;
b.faced low level discrimination in Türkiye due to his Kurdish ethnicity;
c.faced low level discrimination in Türkiye due to his Alevi faith;
d.attended Kurdish cultural celebrations and protests as an individual participant and was injured and/or arrested along with other attendees;
e.attends social and spiritual events with the Alevi community in Australia;
f.has received mental health assistance for a short period of time in Australia; and
g.has family members who historically had adverse experiences with Turkish authorities.
The delegate did not accept that the police visited the applicant’s home in 2014, 2016 or 2018 because he did not raise the 2016 visit in his protection visa application. On this basis, and because the applicant was released from his arrests without charge, the delegate did not accept that he has a profile of interest to the authorities in relation to his past activities (particularly as he was never part of an opposition group) or his Australian activities, which the delegate did not consider to be political in nature. The delegate considered it significant that the applicant’s mother had been able to exit and enter Türkiye without issue when she visited Australia.
Accordingly, the delegate did not accept that the applicant faced a real chance of serious harm or a real risk of significant harm from the authorities on return. In relation to his Kurdish ethnicity and Alevi faith, the delegate did not accept that the applicant would suffer harm amounting to persecution or significant harm on these bases.
Evidence before the Tribunal
Prior to the Tribunal hearing, the applicant’s representative submitted[3] that the applicant has a well-founded fear of persecution on return to Türkiye, individually and cumulatively, because of his:
a.actual political opinion against the AKP Party and in support of leftist ideals, and rights and freedoms;
b.an imputed political opinion owing to his Kurdish identity and non-conformity to the values of the Erdogan government;
c.his Kurdish race; and
d.his Alevi identity.
[3] In submissions dated 8 April 2025.
It was submitted, on the applicant’s instructions, that two further visits to the applicant’s family from the police occurred in 2020 and 2021. It was also submitted that the applicant has taken part in protests in Australia arranged by [Community Organisation 2] and [Community Organisation 3]. In respect of this attendance, it was submitted that:
The Applicant fears that he would have been seen at th[ese] protests given that the Turkish authorities are known to monitor citizens abroad. The Applicant notes that a clear example of this was the arrest of Cigdem Aslan, who [deleted] prior to visiting Turkey in late 2024 where she has been detained and is being prosecuted for involvement with terror organisation being the PKK.
It was also submitted that the applicant’s profile in Türkiye is amplified by his residence abroad for many years and his involvement with the Alevi community in Australia and exacerbated by his Kurdish-Alevi identity.
It was further submitted that the applicant’s mental health would decline even further on return to Türkiye and that, in combination with a lack of available treatment in Türkiye, this would cause the applicant to suffer severe mental pain and suffering on return.
The Tribunal was provided a psychological report by [Psychologist A], Senior Clinical Psychologist, dated 8 April 2025. [Psychologist A] confirmed the applicant’s attendance at sessions on 21 January 2025, 3 February 2025, 17 February 2025, 19 March 2025 and 31 March 2025. The report states that the applicant reported symptoms of difficulty concentrating, lacking motivation, worrying thoughts, lacking confidence, problems with sleep and suicidal thoughts. [Psychologist A] concluded that the applicant suffers from depressive symptoms consistent with those of an adjustment disorder with Depressed Mood.
Tribunal’s request for evidence in writing
As set out above, the Tribunal sought further information about the applicant’s protection claims on 22 April 2025. The Tribunal requested further updated information and evidence in relation to the applicant’s political views as well as his protest and other activities with [Community Organisation 2] and [Community Organisation 1] in Australia.
In his submission of 6 May 2025, the representative noted that he had only been able to obtain limited instructions from the applicant given his ongoing poor mental health. The submission stated that the applicant instructed as follows:
a.He attends [Community Organisation 2] in [location] approximately once a month. He has attended protests arranged by [Community Organisation 2] in support of Kurdish matters and against the Turkish state;
b.The applicant’s previous phone is broken and he has lost all of his photographs including photographs taken at these protests;
c.The applicant knows Cigdem Aslan [and] she is a friend of the applicant’s mother. He has attended a number of protests with Ms Aslan;
d.The applicant is a member of [Community Organisation 1] and attends the [Community Organisation 1] centre in [location] two to three days a week as well as other events;
e.The applicant has attended Newroz celebrations in Australia. [Community Organisation 2] and [Community Organisation 3] have mixed functions together such as Newroz celebrations;
f.The applicant believes the political situation has worsened, particularly for members of his religious and ethnic community, and this is something he would protest about if he has to return to Türkiye. Despite the risks, the Kurdish and Alevi causes are important to him and something that he will continue to raise against the Turkish state.
The following photographs were attached to the submission:
a.Photograph from one of the applicant’s friends depicting the applicant attending a protest [in] July 2024 in relation to the incursion into South Kurdistan;
b.A photograph and link to a 7-minute video of the [July] 2024 protest, taken from the [specified] website.[4] The photograph and video are said to depict Cigdem Aslan at the protest which was also attended by the applicant. One of the banners in the photograph reads ‘Stop Turkish Genocide’.[5]
c.Photograph of the applicant attending [Community Organisation 1’s] Alevi Festival;
d.Screenshot of a YouTube video which was shown on [television] depicting the [leader] of [Community Organisation 3] with Cigdem Aslan and a headline noting that her arrest was part of an operation against the PKK/KCK.
[4] [Source deleted.]
[5] It was submitted that other photographs relating to the applicant’s attendance at protests, including with Ms Aslan, may be available online but that the representative has not asked the applicant to review his online publications due to his mental health.
The applicant submits that this photograph would have been deliberately chosen by the Turkish state for the news broadcast to suggest that the Alevi community is also aligned with or supportive of the PKK and other terrorist organisations.
It was also submitted that people who took part in the Gezi protests in 2013, such as the applicant, are being subject to renewed scrutiny by the Turkish government. The submission notes the arrest of a talent agent on 28 January 2024 for her role in organising people to take part in the protests[6] and the arrest of a journalist in March 2025 over the protests. These individuals have been accused of attempting to overthrow the Turkish government.[7]
CONSIDERATION OF CLAIMS AND EVIDENCE
[6] ‘Talent agent Barım arrested for alleged involvement in Gezi protests; Hurriyet Daily News (28 January 2025) < ‘Journalist under house arrest over role in Gezi protests says he faces up to 20 years in prison’ Turkish Minute (28 April 2025) < 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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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), they 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 they 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 (DFAT) 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 person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on a Turkish passport, a copy of which was contained on the departmental file. The applicant has also provided translated copies of his Turkish birth certificate and national identity card. The applicant has consistently stated that he is a citizen of Türkiye and was assessed by the Department on that basis.
The Tribunal accepts that the applicant is a Turkish citizen and has assessed his claims against Türkiye as the country of nationality and the receiving country.
Assessment of claims
As set out above, the Tribunal has had regard to all of the documentary evidence before it, including the detailed statutory declaration provided to the Department, as well as the audio record of the departmental interview.
While the Tribunal has not had the benefit of hearing oral testimony directly from the applicant, it considers, on review of the materials before it, that the applicant has given detailed and internally coherent evidence at all stages of the proceeding. His oral and written evidence to the Department was largely consistent. His evidence is also highly consistent with the available country information on the situation for Alevi Kurds in Türkiye, which is detailed further below.
On the basis of the evidence before it, the Tribunal accepts, as did the delegate, the following:
a.The applicant is of Kurdish ethnicity and Alevi religion;
b.He has experienced official and societal discrimination because of his Alevi-Kurdish identity;
c.The applicant engaged in the Gezi Park protests and other activities throughout 2013 and 2014 to protest the Turkish government;
d.He was subject to short periods of detention including interrogation by police in 2007, 2012 and 2013;
e.The applicant regularly attended Kurdish Newroz celebrations in Istanbul;
f.Following his attendance at Kurdish celebrations and other events the applicant was subject to excessive force by the police, including being beaten and sprayed with tear gas;
g.The applicant’s mother and other relatives have been imprisoned by the Turkish government on the basis of imputed or actual involvement with Kurdish and/or anti-government groups; and
h.The applicant participates in Alevi-Kurdish community events in Australia.
While, for the reasons given above, the Tribunal has limited additional evidence to that available to the delegate, on the basis of the additional written and documentary evidence before the Tribunal, the Tribunal further accepts as follows:
a.The applicant has an adjustment disorder with depressed mood and suicidal ideations;
b.The applicant has actively participated in political protests in Australia to promote Kurdish rights and oppose the treatment of Kurds in Türkiye;
c.The applicant has strong anti-Erdogan/Turkish government views.
In making these findings, the Tribunal has given weight to the letter of support from [Community Organisation 1] which confirms that the applicant has been an active member of [Community Organisation 1] and participated in [their] events, activities and programs since 2017. While the Tribunal only has photographic evidence of the applicant participating in one protest, it considers the applicant’s evidence that he has attended multiple protests plausible given his accepted history of political activity and the nature of the organisations with which he is involved in Australia.
The Tribunal considers that the applicant’s participation in political demonstrations and other activities in support of Alevi-Kurdish people in Australia is consistent with a history of conduct which it accepts began in Türkiye. For this reason, the Tribunal is satisfied that the applicant’s involvement with [Community Organisation 1] and [Community Organisation 2], and his participation in community events and political demonstrations in Australia have not been engaged in to strengthen his refugee claim.[8] The Tribunal therefore has not disregarded this conduct in its assessment of the risk to the applicant on return to Türkiye, discussed below.
[8] Section 5J(6) of the Act.
The Tribunal also accepts that if he were returned to Türkiye, the applicant would continue to protest against the Turkish government, including its curtailment of Kurdish and civil freedoms.
As indicated above, the delegate did not accept that the applicant’s family had been subject to police visits in search of the applicant in 2014, 2016 and 2018. Noting that the applicant’s submissions of 8 April 2025 state that additional visits took place in 2020 and 2021 (events which were not disclosed to the delegate at the interview held in 2022) the Tribunal is cognisant that it does not have consistent evidence on this aspect of the claims and that it has not been able to hear directly from the applicant on this matter. As such, it makes no findings in relation to this aspect of the claims and has assessed below the applicant’s well-founded fear of persecution in Türkiye based on the above enumerated accepted facts at [49] and [50].
Does the applicant satisfy the refugee criterion for protection?
For the reasons that follow, the Tribunal finds that the applicant has a well-founded fear of persecution on return to Türkiye for the combined reasons of his actual and imputed (anti-government/pro-Kurdish) political opinion, Kurdish ethnicity and Alevi faith.
Considering the above findings about the applicant’s political views and his past and present activities, the Tribunal has considered independent country information about the treatment of Alevi Kurds, in particular politically active Kurds, in assessing whether the applicant’s fears of persecution are well-founded.
The DFAT report contains the following relevant information about the situation for Kurds in Türkiye:
·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 southeastern Anatolia, where they form the majority ethnic group, and northeastern Anatolia, where they constitute a significant minority. Significant Kurdish populations also live in Istanbul and other major cities.[9]
·No laws prevent Kurds (or other ethnic minorities) from obtaining public or private sector employment, from participating in public life, or from accessing government health and education services in the same fashion as other Turkish citizens. The ability of Kurdish citizens to do so in practice, however, depends considerably on individual circumstance and geographic location…[10]
·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.[11]
·The government used state of emergency powers and subsequent carryover legislation following the 2016 attempted coup to target a wide range of Kurdish journalists, politicians and political activists, and civil society organisations accused of supporting the PKK.[12]
·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.[13]
[9] Department of Foreign Affairs and Trade (DFAT), Country Information Report Turkey (10 September 2020) [3.2].
[10] Ibid [3.8].
[11] Ibid [2.3].
[12] Ibid [3,7].
[13] Ibid [3.9].
The Tribunal has had regard to more recent reports submitted by the applicant’s representative. The 2024 Human Rights Watch report on Türkiye states that ‘police violently detain demonstrators associated with leftist or Kurdish groups’ and that ‘some are arrested and placed in pretrial detention for resisting the police or failing to disperse.’[14] The US Department of State report states in relation to 2023 that Kurds and members of Kurdish opposition groups continue to be arrested and detained, including the detention of 224 people for attending Newroz celebrations.[15] The same report notes that torture and ill-treatment in police custody and prison is a significant issue in Türkiye.[16]
[14] Human Rights Watch (HRW), World Report 2024: Türkiye (2024).
[15] US Department of State, 2023 Country Reports on Human Rights Practices – Türkiye (2024).
[16] Ibid. See also HRW, World Report 2024: Türkiye (2024); Ministry of Foreign Affairs of the Netherlands, General Country of Origin Information Report Turkey (March 2022) 32-33.
The Tribunal notes that the delegate did not consider that the applicant had a high profile in Türkiye and emphasised that the applicant had attended protests and carried out other activities in Türkiye without being a member of or strongly aligned with any organised group. The Tribunal does not place the same emphasis on these factors, considering that the applicant has given consistent evidence that he was aligned with [Group 1] during the Gezi protests, that this group played a significant role in those protests,[17] and that in any event, the country information does not support any such distinction. Notably, DFAT assesses that pro-Kurdish political activists face a high risk of official discrimination, which may be enhanced during election periods, and a moderate risk of physical violence from security authorities and ultra-nationalist supporters.[18] The Tribunal notes in particular DFAT’s assessment that the level of risk is the same for high-level politicians and low-level activists and applies nationwide.[19]
[17] [Source deleted.]
[18] DFAT, Country Information Report Turkey (10 September 2020) [3.45].
[19] Ibid, emphasis added.
The Tribunal also considers that the applicant’s activities in Australia – both his Kurdish cultural activities and his participation in political demonstrations – enhance the applicant’s risk on return to Türkiye. The Tribunal considers that Kurdish cultural activities and ‘political’ activities cannot be neatly delineated in this particular context. In the Tribunal’s view, the above country information indicating arrests and detention following attendance at Kurdish Nowruz celebrations are indicative of the politicisation of Kurdish cultural events. While it is not clear whether the Turkish authorities are already aware of the applicant’s activities in Australia, the Tribunal cannot discount this as a real possibility given that country information indicates that the Turkish intelligence services have increased their surveillance of critics of the Turkish government in Western countries.[20] Media reports on the recent arrest and detention in Türkiye of Cigdem Aslan and other members of Australia’s Kurdish community[21] supports both the Turkish government’s awareness of, and importantly, their extreme sensitivity to, pro-Kurdish activism in Australia.
[20] Abdullah Bozkurt, ‘Turkey escalates covert intelligence activities in Europe and North America’ Nordic Monitor (7 March 2024); ‘Erdogan’s top diplomat Çavuşoğlu confirms systematic spying on Turkish government critics on foreign soil' Nordic Monitor (2 March 2020); ‘Turkish Influence and Intelligence Operations in Germany' The Institute of World Peace (6 January 2021).
[21] Danny Tran, ‘Friend denies Melbourne woman Cigdem Aslan has any connection to terrorism after arrest in Türkiye’ ABC News (24 September 2024) <>
Based on the applicant’s accepted cumulative profile as an Alevi Kurdish man with a record of detention and interrogation for protest activity against the Turkish government; with family members with a history of pro-Kurdish activity; who has publicly promoted Kurdish rights and culture in Türkiye and Australia; and protested against the Turkish government in Australia, the Tribunal accepts the applicant faces a real chance of serious harm if he returns to Türkiye. Additionally, the Tribunal has considered the applicant’s psychological condition in assessing the real chance of facing serious harm in Türkiye and considers that in light of his particular vulnerability, scrutiny and questioning even for a short period would amount to serious harm in the applicant’s circumstances.[22] Given the country information highlighted above, the Tribunal considers there to be a real chance in any event that the applicant would be subject to a longer period of detention and physical mistreatment based on his cumulative profile. As such, the Tribunal is satisfied that the applicant faces serious harm for the purposes of s 5J(4)(b) including a threat to his liberty, significant physical harassment and significant physical ill-treatment.
[22] SZTEQ v MIBP (2015) 229 FCR 497 at [153]; AGA16 v MIBP [2018] FCA 628.
The Tribunal is also satisfied that the harm will be directed at the applicant for the essential and significant reasons of his actual and imputed political opinion and his Kurdish ethnicity and that it will involve systematic and discriminatory conduct for the purposes of s 5J(4).
As the applicant fears harm from the Turkish state the Tribunal is satisfied that the real chance of persecution relates to all areas of Türkiye as required by s 5J(1)(c). For the same reason, the Tribunal is also satisfied that effective protection measures are not available to the applicant.
Pursuant to s 5J(3), the applicant cannot be reasonably required to alter or conceal his political beliefs or Alevi-Kurdish identity to avoid a real chance of persecution. For the reasons given above, the Tribunal is satisfied that the applicant’s conduct in Australia has not been undertaken for the purpose of strengthening his claim to be a refugee: s 5J(6).
Accordingly, the Tribunal is satisfied that the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
CONCLUSIONS
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).
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.
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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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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