2400687 (Refugee)

[2024] AATA 3008

2400687 (Refugee) [2024] AATA 3008 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2400687

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Damian Creedon

DATE:16 April 2024

PLACE OF DECISION:  Perth

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

Statement made on 16 April 2024 at 2:52pm

CATCHWORDS

REFUGEE – Protection Visa – Turkey – religion – a practicing Muslim – political opinion – a supporter of the Gülen movement – applicant has pro-Gülenist opinions – harboured a senior member of the Gülen movement – membership of the particular social group –members or former members of the Gülen movement – State protection is not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant, a [age]-year-old national of Turkey, applied for a protection visa on 18 December 2023.

3. The applicant most recently arrived in Australia on [date] November 2023 as the holder of a Maritime Crew (Subclass ZM988) visa.  The applicant has not departed Australia since he arrived onshore; he is presently in immigration detention.  

   Protection visa application

4. The applicant’s written claims for protection may be summarised as follows:

   ·The applicant claims that he was a supporter of the Gülen movement.

   ·After the failed 2016 coup the authorities began to round up suspected Gülenists.

   ·His former brother in law [Mr A] was [occupation] at a Gülen operated school and he was detained and tortured by the authorities.

   ·Upon his release the applicant hid [Mr A] and his family in his home so that the authorities would not arrest him again.

   ·The applicant claims that the only reason he was not arrested was because he was working on a ship and he was away from home most of the time. He knew many people however who were arrested and detained.

   ·The applicant claims that he divorced his wife so that if he was targeted by the authorities she and the children would be safe.

   ·While working on a ship ‘[Ship 1]’ the applicant confided in colleagues that he was a supporter of the Gülen movement. The Captain and crew abused him for his political opinion and threatened to inform on him to the authorities in Turkey.

   ·While in port in [Port 1], the applicant went ashore and deserted the ship. He was taken into custody by Western Australia Police and then placed into immigration detention.

   ·He fears that if he is returned to Turkey he will face harm from the Turkish authorities due to his support for the Gülenist movement.

5. The delegate’s decision record notes the following additional information (citations omitted):

   On 4 January 2024 the applicant was sent correspondence inviting them under s56 of the Act to provide additional information in relation to this application at an interview. On 11 January 2024 the applicant attended an interview by video conference. A digital recording of the interview was made and is in the file for the application.2

   A Turkish speaking interpreter provided the applicant with language interpretation assistance at the interview.

   On 9 January 2024, prior to the scheduled interview, the applicant provided by email additional claims to the Department. The additional claims are summarised below:

   ·The applicant claims that he is homosexual

   ·He attempted to have an intimate relationship with a fellow crew member of his ship the “[Ship 1]”. He was rejected and the crew and captain alienated him and threated to inform upon him to the authorities in Turkey.

   ·Previously the breakdown of his marriage was due to his sexuality.

   ·He fears returning to Turkey and being identified as a gay political activist.

   On the same date the applicant provided the Department with country information relating to his claims. The cited information was taken into account and given consideration in this assessment record.4

   ·In the Protection visa (PV) interview the applicant made the following claims:

   ·He began to work in on merchant ships in September 2017 partially to help him get away from his troubles in Turkey

   ·He did not make a claim in relation to his sexuality in his initial application for protection as he feared that it would get back to Turkey and this would make his life worse.

   ·He first discovered that he was a homosexual when at high school at the age of [age]. He had a yearlong relationship with a male school friend

   ·He married in 2010 after telling his future wife about all of his problems. She agreed to try and they had two children together before the marriage dissolved.

   ·While on his second contract on [Ship 1] the applicant developed a close friendship with another crew member. His advances were rejected and the crew member informed the Captain about his sexuality.

   ·He fears returning to Turkey as the Captain and crew were hostile to him and they said that they would inform upon him to the Turkish authorities.

   ·In regard to his Gülenist claims the applicant stated that he first obtained an interest in the movement in about 2013.

   ·He was a supporter of the movement and attended some conferences prior to the movement being declared terrorist.

   ·His brother in law was a high up member of the movement and in 2017 was arrested and detained without charge by Police. He was held over 11/2 years and tortured during that time.

6. The delegate refused to grant the visa on 16 January 2024 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

7. The applicant applied to the Tribunal for a review of the delegate’s decision on 17 January 2024.

   Application for review

   Material before the Tribunal

8. The Tribunal has before it a range of material, including:

   a.the applicant’s protection visa application forms, which were submitted on 18 December 2023;

   b.the delegate’s protection visa decision dated 16 January 2024, a copy of which the applicant provided to the Tribunal (delegate’s decision record);

   c.the applicant’s application for review submitted to the Tribunal on 17 January 2024; and

   d.a letter of support from [Mr A], dated 8 April 2024, submitted by the applicant on 11 April 2024.

9. The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Turkey, 10 September 2020 (DFAT Report), as well as a number of other sources of country information which will be set out below.

10. The Tribunal has read and had regard to a record of a conversation between the applicant and Australian Border Force (ABF) officers on 22 February 2024, assisted by an interpreter (Conversation Record).  It is convenient to reproduce the material aspects of the Conversation Record in full as it impacts directly upon the applicant’s credibility:

SB:

Good morning, [applicant’s name deleted].  You have a request to speak with ABF; may I ask why

IS: 

I have a problem; the person who I thought was my friend, but not now, is using my name and details.

[MR B] was friendly and helped me learn English.  I trusted him, and he said he would help me with my application.

SB:     

Did he help you?

IS:

I thought he was helping me but has been using my private information illegally.  With my limited English, I have been using a translator via my mobile phone.

I was staying at the Hotel before [and] didn’t know the rules and requirements.

[MR B] told me to stay away from the welfare staff.  He always tries to keep me away from other people; he will help me with my Protection Visa (PV) documentation.

He asked for more documents, and I told him about my Immi account and that I was applying for a Bridging Visa (BVE).  [MR B] told me to refrain from engaging with anyone and await the outcome of the BVE.  He would help and wanted more documents.

My BVE was rejected because I didn’t know the rules and was disappointed.  [MR B] came to me and said don’t worry, it’s not easy to get a BVE.

Around the 11th to 17th of January, I applied for a PV, and [MR B] said he could help me; we talked about how much it would cost, and he said it would cost between $2000 to $5000 (AUD).  He told me to ask my sister, and he communicated with my brother-in-law, and I was to pay after my release.

I gave him cigarettes for help; I don’t smoke and was told to purchase 13 packets.

[MR B] communicated with someone outside, a friend, to help with my PV, who told me to change my statement; he used a mobile translator and spoke with my sister, who told me not to change the statement as my original statement was true and correct.

[MR B] changed my statement and sent in the information that he told me to change; this made me angry.

SB:

Did he use threats towards you?

IS:

Yes, he used threats; they had all my information, passport, paperwork, and documents.

They showed me the statement with the changes and said it was too late.

I had no option; they pushed me, and the information was incorrect.  He stopped me from telling [Ms C] (Serco Welfare Officer), and I could not communicate.

SB: 

So what did they change?

IS:

We argued in the mess, and they changed the story; I asked them why, and they said my Statement was not enough to get a visa.

I have problems in my country; it wasn’t correct.  I wanted it changed.

SB:

So they helped by using false information in your statement to get a PV?

IS: 

They helped; I provided them with my Immi account access, and they changed the Statement on the Immi account.

In the [Hotel], they gave me a list (Serco) of lawyers to contact, but they could only help to a certain level.

I had no other option but to get help from [MR B].

SB: 

Other options are available: Serco, ABF, and Serco Welfare.

Do you feel at risk at the moment?

IS: 

I told [MR B] I no longer want help with my PV.  [MR B] said the process has already started with his friend outside, and I must pay for his help.

[MR B] emailed my brother-in-law; my brother-in-law has a criminal association as he was part of a terror group and stayed with me before he escaped from [Turkey]. 

[MR B] wanted more information on my brother-in-law.  I provided documents about the terror group; [MR B] said he would use the information in my PV and tell me it happened to me.

SB: 

When you had your PV interview, did you tell them that the statement wasn’t true?

IS:

Yes, the statement is inaccurate, as they used the documents, not my statement.

SB: 

Did you tell the PV board about the false statement?

IS:

I didn’t; [MR B] told me that if I did, I would be in trouble and go to prison,

SB: 

Why now, and what do you want ABF to do?

IS:

I want to correct my mistake.

SB: 

I can refer the matter to Status Resolution and arrange for you to speak with them.

IS:

I would like to give more information.

I have been staying away from [MR B] for the last ten days.  [MR D] asked what happened, and I explained to him; he told me to speak with [Ms C], and I can talk with you now.

When I went to watch the TV as my country was playing in the multipurpose room, [MR B] told me I had to pay to watch the game, one packet of cigarettes.

SB: 

You need to say no.  Do you feel confident saying that?

IS:

I told him I wanted to watch and was told to pay, and I did.

SB: 

Do you want me to stop you from purchasing cigarettes from the canteen?

IS:

I’m not going to purchase them anymore.

SB: 

Are you confident in saying no to [MR B]?

IS:

I am; [MR D] is there to help me.

SB: 

Moving forward, don’t give any personal information to anyone, including your friends.

IS:

I’m usually not like this; I’ll be careful with lawyers and friends.

SB: 

Hopefully, you have learned something from this experience. 

What has happened is very serious, and I will get a Status Resolution to contact you.

IS:

He ([MR B]) has all my personal information, and I’m worried he will try to get money from the government.

SB: 

What personal information are you concerned about?  If you can provide ABF, we can follow up.

IS:

I have changed all my passwords and stopped talking with [MR B].

SB: 

If you can provide us with the information, ABF can run some checks.  Is there anything else?

IS:

Thank you for giving me a chance to voice myself. 

I’m not stupid; I was pressured to provide the information.  I made a mistake.  It was wrong.

SB: 

Thank you for being so honest with us today.

IS:

At the moment, you and other people are helping me.  From now on, no more problem.

Hearing

1. The applicant appeared before the Tribunal on 14 March 2024 and on 11 April 2024 to give evidence and present arguments.  The first hearing was adjourned due to technical problems concerning the video link to the interpreter.  The applicant was not represented in relation to the review.

   Applicant’s oral evidence

2. The following is a summary of the applicant’s oral evidence to the Tribunal:

   a.The applicant confirmed his personal details, his visa status upon his arrival onshore, and his current circumstances as an immigration detainee. 

   b.At the outset of the hearing the Tribunal discussed with the applicant the substance of the Conversation Record.  The applicant confirmed its essence and stated to the effect that he held himself accountable for believing what he was told by [Mr B].  He stated to the effect that the embellished claims were untrue and that the core of his claim was his connection with the Gülen movement.  He stated explicitly that he is not homosexual.

   c.The applicant was born and raised in Istanbul and completed his education there.  His father is resident in Istanbul, as is his only sibling, his younger sister.  His mother passed away in 2005.

   d.After competing his primary and secondary education the applicant pursued vocational studies as a [Occupation 1] for [a company].  After completing this study, he worked as a [Occupation 1] in Istanbul [between] 2000 and 2019.  Since 2019 he has worked as a [Occupation 2] on [ships].

   e.The applicant was married in 2010 but is now divorced; he has two sons with his ex-wife, aged [age] and [age].  Since his divorce the applicant had been living with his father and sister, although his sister was married last year and has now moved to live with her husband; his work as a [Occupation 2] kept him out of Turkey for months at a time.

   f.The applicant is of the Islamic faith, and considers himself a practicing Muslim, praying five times daily.

   g.The applicant confirmed that in November 2023 he made a decision to leave the ship he was then working on; he stated that it was not a long-held plan to leave the ship, but that circumstances forced the decision upon him.

   h.When pressed as to the circumstances, the applicant stated that after the coup of 2016 his brother-in-law (his wife’s brother) ([Mr A]) had been hiding at his house; he stated that at that time “a lot of people” were being put in gaol and that his wife’s extended family was being questioned and raided; he stated that he started working on ships to “get out of Turkey”.

   i.When further pressed, the applicant stated that [Mr A] had been a member of the Gülen movement and was wanted by the Turkish authorities for this reason.  The applicant stated that [Mr A] was an [occupation] at [a workplace], and his wife worked at the [same workplace]; he stated that the couple were “high up” in the Gülen movement.  When pressed, the applicant described them as “elders”.

   j.When asked whether, to the best of his knowledge, [Mr A] was involved in any aspects of the 2016 coup, the applicant stated that he did not believe that the coup had happened as it had been portrayed, meaning he did not accept the involvement of the Gülen movement in the coup.

   k.The applicant stated that, as the Turkish government reacted to the coup, they blamed the Gülen movement and, because of the applicant’s own association with the movement, [Mr A] and his wife and family came to hide from the authorities in the applicant’s home. 

   l.In respect of his own association with the Gülen movement, the applicant stated that after his marriage in 2010 he was introduced to the movement in around 2012 after the birth of his first son.  He stated that he and his wife wanted their son to get into “good schools” and that Gülen schools were regarded as having high academic standards.  He stated that [Mr A] introduced him to the group and that he began to attend meetings of [a] chapter of the movement.

   m.When asked about his understanding of the Gülen movement as a belief system, the applicant stated that “it’s not just that”, that it is “more about education” and that the membership of the group was largely drawn from “highly educated people” and that the education standards of the schools were “really high”.

   n.When pressed as to the nature of his relationship to the Gülen movement, the applicant stated that he believed in the general goals of “trying to be good to everybody”, and that, as quality education is costly in Turkey, he was motivated to involve himself in the movement to obtain the best possible chance for admission to its academically selective schools for his sons.  When pressed as to whether the movement was compatible with Islam, the applicant stated “of course”.

   o.The applicant stated that as a member of the [chapter] of the movement he regularly participated in meetings and in organised social and sporting events.  He stated that there were no formal membership cards or fees, and that it did not operate “like a political party”.  When pressed, the applicant stated that his neighbours would recognise him as a member of the group through his community associations.  His wife (at the time) attended some of the “women’s groups” of the movement, but as they had “young kids” she was mostly preoccupied with their needs.

   p.The applicant confirmed that his membership of the Gülen movement persisted until 2016; he stated:

   Even after 2016 we tried to go [to meetings] a few times, [but it] became a very mixed, chaotic situation.

   q.That applicant stated that in this environment saying the name “Gülen” or “Fethullah” (the first name of the founder) could “land you in prison”.  He stated [Mr A] and his wife came to the applicant’s home, to hide from the authorities.  The applicant stated that [Mr A] was, at that time, sought by the authorities on account of his involvement with the Gülen movement, particularly given his high status within the group.

   r.The applicant stated that he still regarded himself as a member of the group even after it had been declared a terrorist organisation as he did not think that the group had done anything wrong.

   s.In September 2017 the applicant retrained [and] started to work in that industry.  He stated that one of the attractions of the work was that he was out of Turkey for 8 to 10 months before returning for “one month’s leave”.  When pressed he stated that it was his preference to be outside of the country because of the risk of arrest by the authorities on account of his association with the Gülen movement, and for harbouring [Mr A] and his wife.

   t.When pressed on the danger for [Mr A], the applicant stated that “all” of [Mr A]’s relatives were required to give statements to the “prosecutor” regarding their knowledge of [Mr A]’s association with the Gülen movement, and attesting to their own involvement, if any.  The applicant stated that in 2016/17 there was a “manhunt” for higher ranking people in the Gülen movement and many, like [Mr A] and his wife, went into hiding.

   u.The applicant stated that eventually [Mr A] handed himself in to authorities and was arrested and detained for 18 months before being released.  The applicant stated that [Mr A] became aware that a further warrant had been issued for his arrest and so chose to escape Turkey through [Country 1] to [Country 2] where is now awaiting resolution of his status as a refugee.  [Mr A]’s wife and children have joined him in [Country 2].

   v.In 2019 the applicant and his wife divorced; his sons live with his wife, and he regularly saw them when in Turkey, and contacted them via “the internet” when working offshore.

   w.The applicant’s situation stayed broadly the same since 2019; he stated that he was outside of Turkey for all but “one month per year”.

   x.When pressed as to his decision to leave his ship in November 2023, the applicant stated that approximately “one to two months” before arriving in Australia he had “opened up” to a colleague regarding his knowledge of and affiliation with the Gülen movement.  He stated that he had been shocked by the reaction of his colleague and other crewmembers, that he had been assaulted by the colleague and other crewmembers and had been confined by the captain to his cabin.  The applicant stated that he had been employed by the same company for four years, it was a Turkish company and ship, and the crew, officers and captain of the ship were Turkish.  He was told that he would be denounced to the authorities in Turkey upon his return there.

   y.When pressed as to why he had chosen to discuss such a sensitive topic, the applicant stated that the Gülen movement had again become a news topic in Turkey, that a new round of “captures” had occurred there, and that it became a topic of conversation on the ship.  He stated that the information came out slowly, over time, and he felt that he could speak freely with this colleague but was mistaken.  He stated:

   They knew that my ex-wife is from [a] city in Turkey, and I started talking about my wife’s connection to her older brother, started opening up bit by bit and they found out about it… as you may be aware, the parties in recent election promising to round up members of [the Gülen movement].

   z.When pressed as to the assault, the applicant stated that he was “literally beaten up” and was told that a “complaint” would be laid about him to the authorities in Turkey.  Of the [number] crewmembers, “four or five” were involved in the beating and he was “locked into [his] room”.  When further pressed, the applicant stated that this behaviour was condoned by the captain and officers of the ship; he stated that he had been a popular person on the ship, but that his circumstances changed completely after these incidents.

   aa.The applicant stated that upon arrival in Australia he feigned an injury to leave the ship and attend a hospital in [Port 1].  He stated that the captain and officers had no choice but to allow him to leave the ship for medical treatment as they were afraid that he would make a complaint to the Australian authorities regarding his treatment on the ship.

   bb.When pressed as to what he feared were he to return to Turkey now or in the reasonably foreseeable future, the applicant stated that he “knows” he will be arrested, mistreated, and imprisoned for his membership of the Gülen movement and for “aiding and abetting” [Mr A], a senior member of the group, to evade capture.  He stated that he had received information from his ex-wife that a month after he left the ship police raided their former matrimonial home and that she was afraid she was under investigation.

   Documentary evidence

1. At the hearing on 11 April 2024 the applicant provided the Tribunal with a translated letter from his brother-in-law, [Mr A], dated 8 April 2024.  The letter is imperfectly translated; however, in summary it confirms that, after July 2016, [Mr A] and his wife were questioned by authorities in Turkey regarding their membership of a ‘terrorist organisation’, they were forced from their home and their employment, and they took refuge with the applicant before seeking ‘asylum’ in [Country 1] and the [Country 2] where they remain.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   CRITERIA FOR A PROTECTION VISA

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

3. 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.

4. 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).

5. 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.

6. 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

7. 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.

   Country Information

   Turkey: General

8. The Executive Summary to the United States Department of State 2022 Country Reports on Human Rights Practices: Turkey (Türkiye) (30 March 2021) (USDOS Report),[1] notes:

   Turkey is a constitutional republic with an executive presidential system and a unicameral 600-seat parliament (the Grand National Assembly). In presidential and parliamentary elections in 2018, Organization for Security and Cooperation in Europe observers expressed concern regarding restrictions on media reporting and the campaign environment, including the jailing of a presidential candidate, that restricted the ability of opposition candidates to compete on an equal basis and campaign freely.

   The National Police and Jandarma, under the control of the Ministry of Interior, are responsible for security in urban areas and rural and border areas, respectively. The military has overall responsibility for border control. Civilian authorities maintained effective control over security forces. Members of the security forces committed abuses, and impunity was a significant problem.

   Under broad antiterror legislation passed in 2018, the government continued to restrict the enjoyment of human rights and fundamental freedoms and compromised the rule of law. Since the 2016 coup attempt, authorities have dismissed or suspended tens of thousands of civil servants and government workers, including more than 60,000 police and military personnel and more than 4,000 judges and prosecutors, arrested or imprisoned more than 95,000 citizens, and closed more than 1,500 nongovernmental organizations on terrorism-related grounds, primarily for alleged ties to the movement of cleric Fethullah Gülen, whom the government accused of masterminding the 2016 coup attempt and designated as the leader of the “Fethullahist Terrorist Organization.”

   Significant human rights issues included credible reports of: arbitrary killings; suspicious deaths of persons in custody; forced disappearances; torture; arbitrary arrest and continued detention of tens of thousands of persons, including opposition politicians and former members of parliament, lawyers, journalists, human rights activists, and an employee of the U.S. Mission, for purported ties to “terrorist” groups or peaceful legitimate speech; political prisoners, including elected officials; transnational reprisal against individuals located outside the country, including kidnappings and transfers of alleged members of the Gülen movement without adequate fair trial guarantees or other legal protections; significant problems with judicial independence; support for Syrian opposition groups that perpetrated serious abuses in conflict, including the unlawful recruitment and use of child soldiers; severe restrictions on freedom of expression and press freedom, including violence and threats of violence against journalists, closure of media outlets, and arrests or criminal prosecution of journalists and others for criticizing government policies or officials, censorship, site blocking, and criminal libel laws; serious restrictions on internet freedom; severe restriction of freedoms of peaceful assembly and association, including overly restrictive laws regarding government oversight of nongovernmental organizations and civil society organizations; restrictions on movement; refoulement of refugees; serious government harassment of domestic human rights organizations; lack of investigation and accountability for gender-based violence; crimes involving violence targeting members of national/racial/ethnic minority groups; and crimes involving violence against lesbian, gay, bisexual, transgender, queer, and intersex persons.

   The government took limited steps to investigate, prosecute, and punish officials and members of the security forces accused of human rights abuses or engaged in corruption and impunity remained a problem. The government took limited steps to investigate allegations of high-level corruption.

   Clashes between security forces and the Kurdistan Workers’ Party terrorist organization and its affiliates continued and resulted in the injury or death of security forces, terrorists, and civilians. The government did not release information on efforts to investigate or prosecute personnel for wrongful or inadvertent deaths of civilians linked to counterterrorism operations.

   [Tribunal’s emphasis.]

   [1] <>

   The Human Rights Watch, World Report 2023: Events of 2022 – Turkey[2] notes:

   President Recep Tayyip Erdoğan’s authoritarian government regularly targeted perceived government critics and political opponents and exerted strong control over the media and judiciary in the long run-up to parliamentary and presidential elections that will take place in the first half of 2023. The deepening economic crisis saw the official annual inflation rate rise to 85 percent in October. In October, a government-sponsored law came into force that criminalizes the dissemination of “false information,” tightens control over social media companies and online news websites, and gives authorities further powers to censor independent journalism and restrict the right to information. Since August 2019, the Interior Ministry has justified the removal of 48 elected Peoples’ Democratic Party (HDP) mayors on the basis that they face criminal investigations and prosecutions for links with the PKK. Repeating the approach taken in 2016-17, the government has replaced mayors in the southeast with Ankara-appointed provincial governors and deputy governor “trustees.” At time of writing, 19 mayors remain in pretrial detention. …

   The ‘Gülen Movement’

   [2] <>

   Fethullah Gülen is a Turkish Islamic scholar and imam who currently lives in exile in the United States. The Gülenist movement, also known as Hizmet and FETO, started as a religious movement in the 1960s and 1970s and evolved into a civil society movement in the 1990s. The movement operated a vast global enterprise of schools, businesses, media outlets and charities. In 2016, it was estimated that there may be as many as four million members in Turkey, accounting for 5 per cent of the population.[3]

   [3] Immigration and Refugee Board of Canada Turkey: The Fethullah Gülen Movement, including structure, areas of operation and activities; procedures for becoming a member; roles and responsibilities of membership; treatment of supporters; the Gülen Movement in Canada including connections with organisations in Turkey and ability to confirm an individual’s involvement with the Gülen Movement in Turkey (2014–September 2016) TUR105626.E (29 September 2016) (IRB Report).

9. An article in the New York Times states that Fethullah Gülen fled to the United States in 1999 amid accusations of plotting to overthrow the secular government. The same source states that during that time, a taped sermon appeared in the media instructing his followers “to move within the arteries of the system, without anyone noticing your existence, until you reach all the power centres”.[4]

   [4] D Bilefsky and S Arsu “Turkey Feels Sway of Reclusive Cleric in the U.S.” New York Times (24 April 2012).

10. According to a BBC report, “Turkey’s coup attempt: what you need to know” (17 July 2016), on 15 July 2016, scores of people were killed and more than 1,400 injured across Istanbul and Ankara when:

    Over the course of a violent night, TV stations were raided by soldiers, explosions heard in Istanbul and Ankara, protestors shot at, the parliament and presidential buildings fired upon, a military helicopter shot down and the Turkish military chief taken hostage.

11. On 21 July 2016, Turkish lawmakers endorsed President Erdogan with wide ranging new powers allowing him to expand an existing crackdown on the Gülenist movement in the wake of the failed coup. The 550-member parliament approved Erdogan’s request for a three-month state of emergency (subsequently extended and widened several times). Deputy Prime Minister Kurtulmus was quoted as stating “the decision on the state of emergency is aimed at cleansing the state of the gang of conspirators”. This was a reference to the Turkish government’s position that responsibility for the failed coup lay with supporters of Fethullah Gülen and his movement.[5]

    [5] “Turkey suspends European Convention on Human Rights” Deutsche Welle (21 July 2016).

12. The report of a UN Rapporteur states that the state of emergency decrees adopted since the coup attempt in July 2016 have broadened the scope of the original state of emergency to include those who “belong to, connect to, or have contact with the Fetullahist Terrorist Organization” (Decree 668), public personnel who have “membership, affiliation or connection to the Fetullahist Terrorist Organization” and even the spouses and children of such persons (Decree 670). The report notes that the decrees are far-reaching and give authorities wide discretionary powers to derogate from human rights obligations. They apply to anyone “assessed to be” a member of a terrorist organisation as well as to anyone acting in union or contact with such organisations. The report states that the decrees lack criteria for assessing membership or contact and leave overly broad discretion to authorities responsible for their execution, waiving ordinary administrative safeguards.[6]

    [6] UN Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to

13. In the immediate aftermath of the coup, reports of the arrests and detention of Gülenist supporters focussed on those in the military, the media and academia. It is clear now, however, that the net has been widened and the focus shifted from suspicion of involvement in the coup to suspicion of any involvement with the Gülen movement. According to a Radio Free Europe/Radio Liberty report,[7] President Erdogan has warned that the “viruses” (as he calls Gülen supporters) are everywhere and has called on citizens to report them to prosecutors and security agencies “even if they are your friends”, and that anybody suspected of having talked positively about Gülen in the past is being reported and eventually suspended or detained. Also noted are claims that “some people spy on others and report them as ’Gülenists’ to the security services just to take their jobs and businesses”.

    [7] A Djavadi Turkey’s Anti-Gülen Clampdown Rages Out of Control (18 August 2016).

14. More recent country information confirms that the situation in Turkey has not improved. The more recent reports confirmed that the Turkish authorities continue to adopt a broad approach when linking individuals to the Gülenist movement.

15. Amnesty International reported, in 2018, that a low threshold for perceived association had been implemented by the authorities:[8]

    Innocuous lawful activities, such as minor interactions with banks, charities, trade unions, media outlets, civil society organizations and schools associated or perceived to be associated with proscribed groups, are frequently used as proof of "links" to such groups. The implementation of such a low threshold for evidence of "links" effectively places the burden of proof on the applicant to prove an absence of links or associations with a proscribed group.

    [8] Amnesty International Turkey: Purged Beyond Return? No Remedy for Turkey's Dismissed Public Sector Workers (25 October 2018) at p5.

16. According to the Immigration and Refugee Board of Canada (IRB) Response to Information Request (TUR106389.E (6 January 2020), the ill-treatment of perceived Gülenist supporters is orchestrated from the top down, including by Erdogan himself:

    6. Treatment by Authorities

    According to the 2019 annual report by the US Commission on International Religious Freedom (USCIRF), "followers of U.S.-based cleric Gülen have faced increased persecution by the government" since the failed coup in 2016 (US 29 Apr. 2019, 5). The President of JWF stated that "[s]ince the attempted coup, Turkish government officials have declared that Hizmet [m]ovement participants do not have a right to life and will beg for death in prisons" (JWF 25 Nov. 2019). Reporting on the same statements by government officials, sources quote Turkey's Economy Minister Nihat Zeybekçi as having stated the following in 2016: "'We will put [those responsible for the coup] into such holes [jails] for punishment that they won't even be able to see the sun of God as long as they breathe. They will not see the light of day. They will not hear a human voice. They will beg for death, saying 'just kill us'" (Turkish Minute 1 Aug. 2016; SCF 18 Aug. 2017). Sources also report that President Erdoğan has referred to "'cleans[ing]'" state institutions of members of the Hizmet movement (BBC 20 July 2016; SCF June 2018); referring to a speech given on 4 April 2017 and citing a Turkish-language news source, the Stockholm Center for Freedom (SCF), a non-profit "advocacy organization that promotes the rule of law, democracy and fundamental rights and freedoms with a special focus on Turkey" (SCF June 2018, 3), quotes President Erdoğan as having stated the following:

    "We are purging every Gülenist in the army, in the police and in state institutions. And we will continue cleansing [these organizations of] them because we will eradicate this cancer from the body of this country and state. They will not enjoy the right to life. … Our fight against them will continue until the end. We won't leave them merely wounded." (SCF June 2018, 10, ellipsis and square brackets in original).

17. Recent country information confirms that large numbers of individuals perceived to be Gülenist supporters continue to be arrested and detained. For example, in June 2020, Turkish prosecutors issued 200 arrest warrants for individuals accused of links to the movement. This came a week after arrest warrants were issued for 118 people accused of Gülenist links, in what has been characterised as a “renewed push to supress the group”. This comes as Erdogan attempts to “tighten his grip” on power with the implementation of a far-reaching neighbourhood watch force.[9]

    [9] “Turkey Rounds Up Scores of Citizens with Alleged Gülen links” Al-Monitor (9 June 2020) (Al-Monitor article).

18. In July 2020, the pro-Turkish government publication, the Daily Sabah, reported that 34 individuals alleged to be FETÖ terror suspects were arrested.[10]

    [10] “Turkey Arrests 34 FETÖ Terror Suspects in Nationwide Operations” Daily Sabah

19. In October 2020, DW reported that Turkish police arrested and detained “as many as 121 suspects” in an operation against supporters of US-based cleric Fethullah Gülen.[11]

    [11] (“Turkey Arrests Dozens over Alleged Links to Erdogan Rival” DW (13 October 2020) (DW article).

20. Frequently, individuals are not told the reason for their arrest, or the specifics of why they are deemed to have Gülenist links: see Al-Monitor article; DW article.

21. In May 2020, the United Nations Working Group on Enforced or Involuntary Disappearances wrote a joint letter to Turkey’s representation to the United Nations, expressing their concerns about reports of a systematic practice of state sponsored extraterritorial abductions and forcible return of Turkish nationals from multiple states to Turkey:[12]

    To date, at least 100 individuals suspected of involvement with the Hizmet/Gülen movement have been subjected to arbitrary arrests and detention, enforced disappearance and torture, as part of covert operations reportedly organized or abetted by [the Turkish] Government”, in coordination with authorities in [other countries].

    [12] United Nations Working Group on Enforced or Involuntary Disappearances et al AL TUR 5/2020 (5 May 2020).

22. The letter further stated that along with torture and other forms of mistreatment, those detained upon arrival in Turkey are subjected to “threats against lives, security and personal integrity of family members and relatives”.[13]

    [13] M Amlôt “Turkey Signed Secret Agreements with Countries to Abduct Dissidents from Abroad: UN” Al Arabiya (12 July 2020).

23. In relation to mistreatment while in detention, the Office of the High Commissioner for Human Rights (OHCHR) reported in 2018 that detainees have faced "different forms of torture and ill-treatment" by "the police, gendarmerie, military police and security forces", being subjected to "severe beatings, threats of sexual assault and actual sexual assault, electric shocks and waterboarding".[14]

    [14] OHCHR Report on the Impact of the State of Emergency on Human Rights in Turkey, Including an Update on the South-East; January – December 2017 (March 2018)) (OHCHR Report).

1. Similarly, following a late 2016 mission to Turkey, the United Nations Special Rapporteur on Torture reported that detainees experienced "severe beatings, punches and kicking, blows with objects, falaqa [foot beating], threats and verbal abuse, being forced to strip naked, rape with objects and other sexual violence or threats thereof, sleep deprivation, stress positions, and extended blindfolding and/or handcuffing for several days".[15]

   [15] United Nations Human Rights Council Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on his Mission to Turkey (18 December 2017) at [26].

2. Human Rights Watch also reports, "that torture and ill-treatment in police custody in Turkey has become a widespread problem".[16]

   [16] Human Rights Watch Turkey: Renewed Torture in Police Custody, Abductions (12 October 2017)

3. In addition to the arrest and detention of perceived Gülenist supporters, country information reports that businesses belonging to, or run by, perceived Gülenist supporters are taken over and their bank accounts seized. The IRB Report also cited a professor of Turkish culture, society, religion and politics as stating that amongst the measures taken by the state against perceived Gülenist supporters are taking over of businesses and freezing of bank accounts:

   [A]ccusations of Gülen 'membership' or sympathies, [for example] by a disgruntled coworker, reliably lead to the accused person to be detained, lose their job, often have their bank accounts frozen, or their businesses taken over by the state.

4. The USDOS Report notes that:

   Individuals with alleged affiliation with the PKK or the Gülen movement were more likely to be subjected to mistreatment, abuse, or possible torture. …

   Human rights groups noted authorities continued to detain, arrest, and try hundreds of thousands of individuals with alleged ties to the Gülen movement or the PKK under terrorism-related charges, often applying questionable evidentiary standards and without the full due process provided under the law…

   On the sixth anniversary of the 2016 coup attempt in July, the minister of interior announced authorities had detained 332,884 and arrested 101,000 individuals since the coup attempt on grounds of alleged affiliation with the Gülen movement, which the government designated as a terrorist organization. According to the statement, there were still 19,252 Gülen movement detainees in prisons and approximately 24,000 fugitives still being sought. Between July 2021 and July 2022, the government detained 20,763 individuals and arrested 1,877 individuals for connections to the Gülen movement. …

   Some lawyers stated they were hesitant to take cases, particularly those of suspects accused of PKK or Gülen movement ties, for fear of government reprisal, including prosecution. …

   According to defense lawyers and opposition groups, there was a trend of prosecutors using what appeared to be legally questionable evidence to file criminal charges against and prosecute a broad range of individuals, including media workers, human rights activists, opposition politicians (primarily of the HDP), suspected PKK sympathizers, alleged Gülen movement members or affiliates, and others critical of the government. …

   The government did not consider those in custody for alleged PKK or Gülen movement ties to be political prisoners and did not permit access to them by human rights or humanitarian organizations. …

   The government engaged in a worldwide effort to apprehend suspected members of the Gülen movement. There were credible reports the government exerted bilateral pressure on other countries to take adverse action against specific individuals, at times without due process. According to a report by several UN special rapporteurs in May 2020, the government reportedly coordinated with other states to forcibly transfer more than 100 Turkish nationals to Turkey since the 2016 coup attempt. The UN rapporteur’s report specified that 40 individuals were subjected to enforced disappearance. In its 2021 report on transnational repression, Freedom House documented 58 cases of individuals whom Turkey renditioned from 17 countries since 2014 but assessed that additional cases were not documented by public sources. Freedom House concluded that since 2014 Turkey carried out the highest number of renditions without due process in the world. …

   There were credible allegations that Turkish intelligence forces kidnapped alleged members of the Gülen movement in third countries and returned them to Turkey to stand trial.

   In July 2021, President Erdogan announced that Turkish intelligence forces captured and returned to Turkey from the Kyrgyz Republic Orhan Inandi, the head of the Gülen-movement-associated Sapat educational network. …

   The government continued to refuse to renew the passports of some citizens with temporary residency permits in other countries on political grounds, claiming they were members of “Gülenist” organizations; these individuals were unable to travel outside their countries of residence.

5. The DFAT Report notes that:

   3.39      Human rights observers have expressed concerns the government has not published clear criteria to link individuals to the Gülen movement. In some cases, the only evidence of ties to the Gülen movement has been use of the Bylock messaging application (see Media). Authorities have based other arrests and dismissals on financial transactions with the Asya Bank (closed by the government for its alleged links with the Gülen movement); membership of a trade union or association linked to the movement; rapid promotion in the public service or military rank; having a child attend a school associated with the movement; police or secret service reports (not made public); analysis of social media contacts and internet browsing history; or information received from colleagues or neighbours. Many of those arrested have not had access to the evidence against them, nor the opportunity to defend themselves. The Commission of Inquiry for State of Emergency Practices (see Human Rights Framework) was established to review the dismissals, but has mostly upheld the original dismissal decisions.

   3.40      Authorities have published lists of those dismissed and put markers against them in the registration system of the state social insurance system (SGK), significantly reducing their chances of finding alternative employment in either the public or private sectors, and stigmatising them socially. Those dismissed lose their income and social benefits, including access to medical insurance and retirement benefits, and many have had their passports cancelled (see Passports). Various decrees specifically state dismissed civil servants ‘shall be evicted from publicly owned houses within 15 days’. Since July 2016, the government has seized or appointed administrators for approximately 1,000 businesses accused of having links to the Gülen movement. The businesses, which range from small shops to publicly traded companies, are worth an estimated USD12 billion. The experiences of those purged has not been universal – some purged officials have subsequently been re-appointed to senior positions, others have thrived in the private sector. Family members of alleged Gülenists have also been impacted, including through travel bans and/or passport confiscation.

6. DFAT assesses at [3.41] that:

   …those accused of membership of the Gülen movement face a high risk of adverse official attention, including arrest and prosecution. In some cases this is justified: credible evidence may exist that they were involved in the July 2016 attempted coup, or inappropriately obtained or misused public office. In some instances, however, the burden of proof for membership of the Gülen movement does not meet credible evidentiary standards, and the accused have limited ability to defend themselves. Civil servants accused of membership are highly likely to face dismissal from employment without due process and face numerous official sanctions. Access to official recourse is slow. Those accused of membership of the Gülen movement where no credible evidence exists face considerable societal stigma and restrictions, particularly through the publication of their names.

   Analysis, findings and reasons

7. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

8. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

9. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.’

10. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Credibility

11. The chief cause for concern in respect of the credibility of the applicant is his admission that he embellished his claims for protection with untrue claims, specifically that he was a homosexual male.

12. The Tribunal notes that the applicant maintained the untrue claims in an interview with the delegate on 9 January 2024 and that it was not until the applicant’s conversation with the ABF officers on 22 February 2024 that he first corrected the record.

13. In his evidence to the Tribunal on this issue the applicant:

    a.expressed regret at having trusted the advice he received from his fellow detainee regarding his application prospects;

    b.took responsibility for the circumstances whereby his claims were embellished; and

    c.apologised to the Tribunal for situation. 

14. The Tribunal observed the applicant closely during this exchange; allowing for the challenges of interpretation, it appeared to the Tribunal that the applicant was sincere in these statements.

15. In properly assessing this evidence the Tribunal is mindful of the following considerations surrounding credibility:

    a.First, the fact that a refugee claimant may “yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”.[17]

    b.Secondly, a decision-maker’s rejection of some evidence, material or peripheral, relating to past or present facts, should not necessarily lead to the rejection of all of the claimant’s evidence.[18]

    [17] Abebe v Commonwealth – Minister for Immigration and Multicultural Affairs v Eshetu (2000) 24(1) Melbourne University Law Review 190.

    [18] International Association of Refugee Law Judges, Assessment of Credibility in Refugee and Subsidiary Protection Claims Under the EU Qualification Directive – Judicial Criteria and Standards,  (March 2013) at [A.18].

16. The Tribunal has had the benefit of speaking to the applicant which has enabled it to assess his circumstances and genuineness in the presentation of his evidence.

17. When placed in their proper context the Tribunal is of the view that the embellishments propounded by the applicant are explicable by his circumstances as an immigration detainee with negligible English language skills, unfamiliar with Australian legal processes, in circumstances where he is genuinely, subjectively, fearful for his safety in Turkey. 

18. Although the applicant did not take the first opportunity to correct the record, when he did so, he did so voluntarily, and at a relatively early stage.  Overall, the Tribunal is persuaded that the applicant’s behaviour in initially propounding and pursuing untrue clams does not impugn the credibility of his remining claims. 

19. The Tribunal has formed the view that the untrue claims made by the applicant should be rejected and excised from his application without rejecting his remaining claims and evidence.

    Substantive findings

20. The core of the applicant’s claims has two aspects; that he was, and would be perceived by Turkish authorities to be, a member of the Gülen movement; and that he harboured a senior member of the Gülen movement, in his brother-in-law [Mr A], and [Mr A]’s wife.

21. In assessing the applicant’s claims the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[19]

    [19] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

22. This should not, however, lead to “an uncritical acceptance of any and all allegations made by” the applicant.[20]

    [20] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

23. Overall, the Tribunal found the applicant’s oral evidence in respect of his core claims to be coherent and persuasive.  When pressed for details in respect of his core claims the applicant was able to answer the Tribunal’s questions in a manner consistent, to the Tribunal’s observation, with honest, unaffected recollection.  By way of examples, when pressed on his attraction to the Gülenist movement, the applicant spoke enthusiastically about the benefits to his sons of obtaining, through the movement, the best education available in Turkey, and placed this as his prime motivation to join the movement and maintain his involvement with it; and when pressed on his perception of the movement’s involvement in the coup, the applicant spoke frankly as to his view that the movement would not have been involved as it was dedicated to peace and consistent with the precepts of Islam.

24. The applicant’s account of his life since 2019 was also coherent and plausible; his decision to take employment which would see him out of the country is consistent with the country information as to seeking to avoid the Turkish authorities’ measures to detain and arrest Gülenists.  When pressed, his account of slowly letting his ‘mask drop’ to persons he regarded as trusted colleagues was both plausible and persuasive, and the reaction of the ship’s captain and crew was not inconsistent with the country information.

25. The Tribunal has read and had regard to [Mr A]’s letter.  Taking account of the poor translation, the letter is written in understandably constrained terms given the country information cited above.  The Tribunal places some small weight on the letter in the applicant’s favour.

26. In the absence of corroborating evidence, the Tribunal cannot be certain of the applicant’s account of his circumstances.  However, having had the benefit of speaking with him, the Tribunal is not able to make a confident finding that that applicant’s account in respect of his core claims is not credible, and it is sufficiently persuaded that it is possible that the core of his claims is true.[21] 

    [21] See: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64].

27. The Tribunal therefore accepts the possibility that:

    a.In around 2012 the applicant was introduced to the Gülenist movement by his brother-in-law, [Mr A].

    b.The applicant’s motivation to join the movement and participate in its social activities was prompted by his desire to obtain entrance to Gülenist schools for his sons, such schools being perceived as providing the best education available.

    c.After the coup of 2016 the applicant maintained his association with the Gülen movement for a short while, however the situation became “chaotic” and overt membership of the association became untenable. 

    d.The applicant and his wife harboured his brother-in-law, [Mr A], and his wife as the couple were actively being sought by the Turkish authorities.

    e.The applicant hid his membership of the Gülen movement by, inter alia, changing his job to become a [occupation 2], thereby enabling him to be ‘outside’ of Turkey, and out of the reach of the authorities there, for extended periods.

    f.In or around mid-2023 the applicant provided sufficient information to his work colleagues on board ship for them to conclude that he was a member and/or supporter of the Gülen movement. 

    g.The applicant was beaten by crewmembers and locked in his cabin by order of the ship’s captain pending return to Turkey where, he was told, the authorities would be informed of his association with the movement.

    h.The applicant took the opportunity of his ship’s arrival in Australia to obtain medical treatment onshore and to make his application for a protection visa.

28. In view of its acceptance of these possibilities, the Tribunal finds, by extension, that the applicant has pro-Gülenist opinions and past associations with Gülenist movement institutions and supporters. Despite his attempts to hide his opinions and past associations, they have likely become known to the Turkish authorities.

29. Taking into account the country information set out above – in particular DFAT’s assessment that those accused of membership of the Gülen movement face a high risk of adverse official attention, including arrest and prosecution, and that those accused of membership of the Gülen movement, even where no credible evidence exists (and prima facie such credible evidence does exist in the present case) face considerable societal stigma and restrictions – the Tribunal finds that there is a real chance the applicant will be subjected to ‘serious harm’ including loss of liberty and significant physical harassment and ill-treatment for the purposes of s.5J(4)(b) if returned to Turkey, now and for the foreseeable future.

30. The Tribunal finds that the harm will be directed at him for the essential and significant reasons of his imputed (anti-government/pro-Gulenist) political opinion or sympathies, and/or for his membership of a particular social group, namely members or former members of the Gülen movement, and involves systematic and discriminatory conduct for the purposes of s.5J(4).

1. As the applicant’s fear includes fear of persecution at the hands of the state, the Tribunal is satisfied that the real chance of persecution relates to all areas of Turkey for the purposes of s.5J(1)(c) and that effective protection measures are not available to him for the purposes of s.5J(2). He cannot be required to modify, alter, or conceal his identity pursuant to s.5J(3).

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

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

   CONCLUSION

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

   DECISION

5. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Damian Creedon
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   
   

freedom of opinion and expression on his mission to Turkey A/HRC/35/22/ADD.3 (7 June 2017) pp7–8).

(8 July 2020).