CA (Turkey) v A Refugee and Protection Officer
[2024] NZHC 1133
•8 May 2024
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000844
[2024] NZHC 1133
IN THE MATTER OF an application for leave to bring an appeal against the decision of the Immigration and Protection Tribunal UNDER
Section 245 of the Immigration Act 2009
BETWEEN
CA (TURKEY)
Applicant
AND
A REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 5 September 2023 Appearances:
L Tothill and T Talamaivao for the Applicant Z McCoy and N El-Sanjak for the Respondent
Judgment:
8 May 2024
JUDGMENT OF BECROFT J
[Application for leave to appeal decision of the Immigration and Protection Tribunal]
This judgment was delivered by me on 8 May 2024 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
Dixon & Co Lawyers, Auckland Crown Law, Wellington
CA (TURKEY) v A REFUGEE AND PROTECTION OFFICER [2024] NZHC 1133 [8 May 2024]
This application for leave
[1] Mr CA is a 28-year-old Turkish national who arrived in New Zealand in January 2020 on a working holiday visa. In late 2020, he sought refugee and protected person status on the basis that he is a conscientious objector to military service, which is compulsory in Turkey.
[2] In May 2022, the Refugee Status Unit (RSU) declined Mr CA’s claim. He then appealed that decision to the Immigration and Protection Tribunal (the Tribunal). The appeal was dismissed.1 Mr CA now seeks leave to appeal against the Tribunal’s decision.
[3] Counsel advise that the claim for refugee and protected person status has essentially foreclosed upon all other alternative immigration options which might have been available to Mr CA. I raised with counsel the possibility that this application be adjourned to afford Mr CA the opportunity to pursue those other alternative immigration routes. However, the respondent sought to have the matter determined as it stands. Mr CA’s immigration status is therefore reliant on the outcome of this decision.
Mr CA’s immigration history
[4] Mr CA was born in Turkey and is of Turkish ethnicity. He attended primary and secondary school in Turkey before completing a bachelor’s degree in business administration in 2019.
[5] Mr CA was raised by his parents; it is said as a moderate (as opposed to a conservative) practising Muslim. He reports that in 2014, while a teenager, he stopped practising his Islamic faith because he disliked the way the government used religion as a means of social control. While Mr CA’s family were supportive of his liberal religious views, he notes that some of his neighbours directed comments towards him
1 [CA] (Turkey) [2023] NZIPT 802068 [Tribunal decision].
to the effect that he was a “non-believer”. However, Mr CA did not face significant repercussions because of this choice.
[6] During Turkey’s 2018 presidential elections, Mr CA voted for the opposition party’s candidate, from the Republican People’s Party (CHP)—despite not being a CHP member. At the time, Mr CA followed CHP social media accounts, and he did repost some of the party’s content online. However, he does not report having personally faced any backlash or consequences because of that activity.
[7] During his university studies, Mr CA was able to defer his compulsory military conscription. After graduation, Mr CA further deferred his military service for two years. This deferment was automatically extended for a further period due to the COVID-19 pandemic.
[8] It is said that Mr CA refuses to undertake military service as he dislikes firearms and does not want to use one. He opposes the actions and policies of the Turkish government and considers that the military is used by the government to further its wrongful policies.2
[9] On 14 January 2020, Mr CA arrived in New Zealand holding a genuine passport and a working holiday visa. His father paid for his airfares and contributed to initial living expenses. While in New Zealand, Mr CA has travelled around the country working as a housekeeper, at a backpacker accommodation, at a kebab shop, and in construction. Mr CA’s family continue to reside in Turkey.
[10] On 16 November 2020, the RSU received Mr CA’s claim for refugee and protected person status. The form itself was dated 13 November 2020. Mr CA also provided the RSU with a document that recorded his military service had been deferred until 28 January 2021.
[11] On 12 October 2021, Mr CA was issued with a New Zealand work visa that was valid for 12 months.
2 Tribunal decision, above n 1, at [24].
[12] On 4 November 2021, Mr CA was interviewed by a refugee protection officer via video conference. His representative was also in attendance. During that interview Mr CA was asked to access his online deferral information. The interview notes record that the online form then accessed stated that Mr CA’s military service would expire on 20 December 2021. That deferral appears to have come as a result of the COVID-19 pandemic.
[13] On 22 December 2021, a letter was sent to Mr CA’s parents from the Turkish Ministry of Defence. It stated that from 1 January 2022 Mr CA would be considered a deserter if he did not report to the nearest recruiting office for conscription or provide an explanation for his absence.3 I understand that one of the listed acceptable explanations for his absence would be that he was living in another country on a work permit.4 Mr CA took no steps in response to this notice.
[14] On 30 May 2022, the RSU declined Mr CA’s claim for refugee and protected person status. Mr CA then appealed that decision to the Tribunal.
[15]The Tribunal dismissed Mr CA’s appeal in a decision dated 27 March 2023.
“Refugee” and “protected person” status
[16] Before summarising the Tribunal’s decision, it will be helpful to explain the meaning of “refugee” and “protected person” status. There are statutory definitions for each; and there are two separate routes by which a person can become a protected person. It is important to note that on appeal to the Tribunal, the Tribunal must determine (in this order), first whether the person is a refugee, second whether the person is a protected person under the Convention Against Torture pursuant to s 130 of the Immigration Act 2009 (the Act), and third whether the person is protected person under the Convent on Civil and Protected Political Rights pursuant to s 131 of the Act.5
3 I note that the Tribunal decision records that this letter said Mr CA would be considered a draft evader from 1 January 2023. The RSU decision records the relevant date as being 1 January 2022. No explanation was provided for this discrepancy.
4 This is noted in the decision of the Refugee Status Unit dated 30 May 2022.
5 Immigration Act 2009, s 198(1)(b).
Refugee status
[17]Section 129(1) of the Immigration Act provides:
129 Recognition as refugee
(1)A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.
(2)A person who has been recognised as a refugee under subsection (1) cannot be deported from New Zealand except in the circumstances set out in section 164(3).
[18] Article 1A(2) of the Refugee Convention provides that a refugee is a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
[19]The principal issues arising in the context of an inquiry into refugee status are:
(a)Objectively, on the facts as found, is there a “real chance” of the applicant being persecuted in the country of nationality—here Turkey? (This is the central issue for Mr CA).
(b)If the answer is yes, is there a Refugee Convention reason for that persecution?
[20] For the purposes of a refugee determination, “being persecuted” requires serious harm arising from the sustained or systemic violation of internationally recognised rights.
[21] In determining what is meant by “well-founded” in art 1A(2) of the Refugee Convention, the Tribunal (correctly, it is agreed) proceeded on the basis that a fear of being persecuted is well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The “real chance” standard is entirely objective.
[22] Article 1F(b) of the Refugee Convention excludes a person from the protection of the Convention in the defined circumstances, but this is not relevant to Mr CA’s application, and it requires no elaboration.
Protected persons
[23] Status as a protected person can arise in two ways, under two separate international covenants. I address each in turn.
Claim under the Convention Against Torture
[24]Section 130 of the Act relevantly provides:
130 Recognition as protected person under Convention Against Torture
(1) A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.
…
(3)For the purposes of determining whether there are substantial grounds for belief under subsection (1), the refugee and protection officer concerned must take into account all relevant considerations, including, if applicable, the existence in the country concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.
…
(5) In this section, torture has the same meaning as in the Convention Against Torture.
(Emphasis in original)
[25]The meaning of torture in the Convention Against Torture, is:6
… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on
6 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987), art 1.
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Claim under the Covenant on Civil and Political Rights
[26]Section 131 of the Act relevantly provides:
131 Recognition as protected person under Covenant on Civil and Political Rights
(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.
…
(3)For the purposes of determining whether there are substantial grounds for belief under subsection (1), the refugee and protection officer concerned must take into account all relevant considerations, including, if applicable, the existence in the country concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.
…
(5)For the purposes of this section,—
(a)treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards:
(b)the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.
(6)In this section, cruel treatment means cruel, inhumane, or degrading treatment or punishment.
(Emphasis in original)
[27] In relation to a claim to be a protected person, s 198(1)(c) of the Act requires the Tribunal to also determine matters analogous to the art 1F(b) exclusion clause in the Refugee Convention.
Commonality of tests/thresholds between refugee and protected person status
[28] For the purposes of this application, it is relevant to note that the Tribunal proceeded on the basis that the “substantial grounds for believing” test, for protected persons enquiry, should in substance be equated with the “real chance” threshold in the refugee inquiries—both require a degree of risk that is more than speculative or remote. All counsel agree the Tribunal’s approach was correct.7
The Immigration and Protection Tribunal Decision
[29] In determining whether Mr CA should be recognised as a refugee or protected person, the Tribunal considered that it must first identify the facts against which that assessment should be made. In doing so, the Tribunal concluded that the account given by Mr CA at the hearing was credible. This I have already summarised at [4]–[13].
[30] The Tribunal then canvassed the relevant country information, and case law surrounding claims for refugee and/or protected person status based on objections to compulsory military service. The Tribunal then applied that background to the facts before it.
Country information
[31] As an overview, the Tribunal noted that there were significant concerns with Turkey’s general human rights record.8 Concerns included credible reports of arbitrary killings, suspicious deaths in custody, forced disappearance, arbitrary arrest, and
7 See the comments of Hinton J in DV (Pakistan) v Refugee Protection Officer [2020] NZHC 3346 at [29] and [30]. It is said that Hinton J’s comments are consistent with AC (Syria) [2011] NZIPT 800035 at [78] from which Hinton J quoted at [29]. It would seem that the upshot of DV (Pakistan) is that the Tribunal is entitled to rely on its assessment of whether an appellant faces serious harm in the refugee enquiry when determining whether an appellant is a protected person. However, there is a very recent decision of this Court, which may leave open that the test for a protected person is different from the test in establishing refugee status: see AP (Chile) v Refugee and Protection Officer [2023] NZHC 2424 per Muir J. It appears that the preceding two cases were not drawn to Muir J’s attention. I have not heard argument on the point. For the purpose of this application both counsel agreed that the tests were, for all intents and purposes, the same. It is not necessary in this decision for me to address that issue further. It is not determinative of this leave application.
8 See the Tribunal decision, above n 1, at [32] referring to the United States Department of State
2021 Country Reports on Human Rights Practices: Turkey (12 April 2022).
continued detention of tens of thousands of people including supporters of opposition parties and generally what might be called “opponents of the Government”.
[32] The United States Department of State Country Report on Turkey noted that in July 2021, Turkish authorities announced they had detained 312,121 individuals and arrested 99,123 individuals since the 2016 failed coup. Non-government organisations estimated that at least 8,500 individuals were held in pre-trial detention or imprisoned following conviction for alleged links with the Kurdistan Workers’ Party.
[33] Military service is compulsory in Turkey for all male citizens from 21 years of age. There are limited exemptions. In June 2019, the period of compulsory military service was reduced from 12 to six months. In addition, conscripts can opt to pay TRY 30,000 (approximately EUR 5,000–6,000) in order to undergo only one-month of military training and be exempted from the remaining five months.
[34] There is no provision for conscientious objection. Those who have been assigned the status of “draft evaders”, into which category I understand Mr CA now falls, cannot avail themselves of the buy-out option.
[35] In recent times, significant changes have been made to military service obligations in Turkey. The Turkish army was previously a conscript army that deployed conscripts to conflict areas. However, the army has now become increasingly professionalised to the point where the sending of conscripts to conflict zones has ceased. In a relevant report detailed by the Tribunal it noted:9
The army stopped deploying conscripts in combat operations a few years ago. Military operations are carried out by professional soldiers, both in south-eastern Turkey and in Iraq and Syria. Although conscripts could still be deployed in active conflicts or military operations, including counter-terrorism operations, in the 1990s and early 2000s, this is no longer the case.
[36] The Tribunal noted that existing legislation provides for staged periods of imprisonment for failing to report for military service ranging from one month at the low end, through to between six to 36 months’ imprisonment for those who do not
9 See Tribunal decision, above n 1, at [37].
report and who are arrested after three months of not reporting. However, while the law allows for imprisonment as punishment for avoiding military service, the Tribunal observed that it is not used in practice. The Tribunal emphasised that those who do not present for registration at a military recruitment branch are issued with a fine, which increases in value as the number of years of avoidance increases. The Tribunal noted that in practice there are a very large number of draft evaders and the state lacks capacity to follow-up in most cases.10 Prison is not used as a penalty for unpaid fines in Turkey.
[37] Finally, the Tribunal noted that once a draftee is called for service, if they are a no-show, the military draft branch sends a letter to the police and once the police register that letter into their system, the person becomes registered as a “draft dodger” or draft evader—this being Mr CA’s current status.
[38] The Tribunal noted that the Turkish military has always had a significant role in Turkish society as a steward of secular values.
Human rights—performance of military service
[39] The Tribunal particularly noted art 18 of the International Covenant on Civil and Political Rights (ICCPR) as being central to this appeal:11
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals of the fundamental rights and freedoms of others.
10 See Tribunal decision, above n 1, at [39].
11 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art 18.
[40] The Tribunal relied heavily on DS (Iran),12 which dealt with the issue of compulsory military service and summarised six key propositions. These included that in order to come within the ambit of art 18, the objection must be one that could be appropriately categorised as a “belief”. Thus, a mere “point of view” based on personal inconvenience would not suffice.
[41]In DS (Iran), the Tribunal also noted, amongst other principles:13
(d)Whether or not coercion by the state to perform military service notwithstanding such a belief amounts to a violation of Article 18 depends on whether the policy of the state in question amounts to a permissible limitation in terms of Article 18(3) of the ICCPR. Thus, the limitation has to be prescribed by law, in pursuit of a legitimate aim, and be necessary and proportionate in a democratic society.
(e)If the limitation meets the criteria of Article 18(3), the freedom to manifest that belief in Article 18 gives way to that limitation. Therefore, the mere fact that the state operates a policy of conscription does not, without more, ground a valid claim to refugee status.
[42] In DS (Iran) the Tribunal observed that the question as to whether an interference with any right, in the context of military service, is permissible must necessarily be shaped by the specific context of service in the military. The Tribunal in Mr CA’s case highlighted a particularly relevant passage in DS (Iran):14
For this reason, merely objecting to military service based on political opposition to the government of the day, all of its constitutional arrangements will not suffice.
Application to the facts
[43] First, the Tribunal concluded that neither the evidence before it nor the relevant country information established that the Turkish government had any real interest in Mr CA, his political views, or his largely tacit support for an opposition party.
[44] Second, and more importantly, given Mr CA’s status as a draft evader, the Tribunal found that on his return to Turkey, he will have two options available to him:
12 DS (Iran) [2016] NZIPT 800788.
13 At [245].
14 Tribunal decision, above n 1, at [45] quoting DS (Iran), above n 12, at [274].
he can undertake the required military service, or he can face repeated fines and court prosecutions for failing to do so.
[45] The Tribunal then discussed the nature of Mr CA’s objection to military service. It noted that at the hearing, Mr CA accepted his military training would not require him to use a firearm beyond aiming at an inanimate target. When asked what specific aspects of military service he objected to, Mr CA did not refer to any specific government policies that he took issue with and instead reiterated his dislike of firearms and “harming other people and things of that nature.”
[46] On that basis, while the Tribunal accepted that Mr CA did not want to perform military service, the Tribunal was not satisfied that his objection to military service was based on principled convictions grounded in religious beliefs or ethical considerations. In those circumstances, the Tribunal concluded that requiring Mr CA to undertake a finite period of military service, or face the imposition of fines, was not an impermissible limitation on his rights under art 18 of the ICCR.
[47] The Tribunal concluded that the Turkish military has long been a bastion of secularism. The available country information does not suggest that Mr CA would encounter any difficulties as a non-practicing Muslim in Turkey.
[48] Nor was there country information to persuade the Tribunal that his general political views, including his opposition to the current Turkish government, would expose him to risk of serious harm. Beyond calling him a “draft evader”, the evidence did not establish that the Turkish government has any interest in him, his political views, or his largely tacit support for an opposition party.
[49] On this basis, the Tribunal found that objectively, on the facts, Mr CA did not have a well-founded fear of being persecuted on his return to Turkey. The risk of any serious harm for him was considered remote and speculative only. It did not rise to the level of a real chance. On this basis there was no need for the Tribunal to go further in establishing other aspects of a claim for refugee status.
[50] The Tribunal relied on the same factual and country findings it had already made in terms of Mr CA’s application to be considered a protected person under both ss 130 and 131 of the Act. It decided he was not at risk of suffering any of the requisite types of harm arising under those sections.
[51] For those reasons, the Tribunal found that the applicant was not a refugee and not a protected person within the meaning of either of the two relevant conventions.
Grounds of appeal
[52] Mr CA relies on the following three alleged errors of law in the Tribunal’s decision:
(a)The Tribunal failed to consider factually analogous cases where conscientious objectors from Turkey were granted refugee status.
(b)The Tribunal erred in its approach to the “well-founded fear test”, which is central to the determination of refugee and protected person status. Mr CA says the Tribunal erred in respect of its assessment of the risk of harm that would come to him if he were conscripted, or if he were to be arrested and imprisoned in Turkey.
(c)The Tribunal made significant mistakes of fact which together amount to an error of law.
Legal principles on leave applications
[53] Counsel agree on the now well-settled leave test in relation to both ss 245 and 249 of the Act. The Court must consider:15
(a)whether there is a question of law;
(b)whether the question of law is seriously arguable; and
15 P v Minister of Immigration [2022] NZCA 188 at [16]–[17]; and Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8]. See also Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
(c)whether the question of law is of sufficient importance to be submitted to the High Court, either:
(i)by reason of general or public importance; or
(ii)for any other reason.
[54] General or public importance means that the issue raised must “go beyond the particular circumstances of the applicant,” or “raise an issue that suggests the existing law should be revisited by the Court.”16 The errors of law alleged in the application must also be reasonably capable of being held.17
[55] In Machida v Chief Executive of Immigration New Zealand, the Court of Appeal noted that although the “any other reason” category is open-ended:18
… we agree with this series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
[56] It is accepted that the leave criteria are stringent. The leave requirements indicate a deliberate parliamentary intention to limit appeals and judicial reviews. This is because the Tribunal is a specialist body and ordinarily it can be trusted to apply the special legislative provisions and principles in the relevant international conventions. Very few errors, if made by the Tribunal, will amount to cases where clarification of the law and its proper construction are required.
[57]Against those principles I deal with each of Mr CA’s three grounds of appeal.
Is the Tribunal’s decision inconsistent with comparable case law?
[58] It is accepted that DS (Iran) sets out the test for refugee claims based on conscientious objection.19
16 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32].
17 AI (Somalia) v The Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.
18 Machida v Chief Executive of Immigration New Zealand, above n 15, at [8] (footnote omitted).
19 DS (Iran), above n 12.
[59] However, the applicant says that although the Tribunal referred to the test contained in DS (Iran), it failed to refer to, cite, or distinguish any cases dealing with conscientious objection to military conscription in Turkey. Ms Tothill, for Mr CA, says that the Tribunal has dealt with numerous cases involving conscientious objectors from Turkey over the years. In most of those cases, claimants have been granted refugee and/or protected person status. Ms Tothill submits that the Tribunal has reached a decision that is unsupported by, and/or in direct contrast with the relevant case law. Accordingly, she says the decision contains an error of law. In particular, she asserts that “[t]he Tribunal is bound by a doctrine of precedent and must give clear reasons for distinguishing cases with similar factual backgrounds”.
[60] With respect, I think that overstates the doctrine of precedent in this situation. Normally this is understood to apply to the principle that relevant cases decided by higher courts must be followed by lower courts. Usually this is in respect of the legal issues and points of law. All the cases referred to by Ms Tothill are cases previously decided by the Tribunal. There is no obligation for a differently constituted tribunal to “follow” the earlier decisions of the tribunal.20 And in any case, the legal approach and principles expressed by the Tribunal here are entirely similar to that set out in the previous cases. So, there is no problem in that respect.
[61] But Ms Tothill asserts that factually Mr CA’s case is similar to all the other previous cases she highlights and ought to be decided in the same way. So far as it goes, I accept that submission. But only if the facts are on all fours.
[62] The short answer is that the facts of all the cases referred to by Ms Tothill are quite different. They are not on all fours at all. On that basis the Tribunal has certainly not, as Ms Tothill puts it, “reached a decision which is unsupported by, and/or in direct contrast, with the case law relating to conscientious objectors from Turkey.” With great respect, that submission cannot withstand scrutiny. And if the other cases are factually different, there is no obligation to cite them.
20 Wallace v Legal Services Commissioner [2016] NZHC 2870 at [22]: “…The dicta relied on by [counsel] are not statements of law or principle of a kind that could be binding on future Panels or Tribunals. Rather they are indicative of an approach which might or might not be applied depending on the particular case. Nor do the principles of stare decisis ordinarily require a Court or Tribunal to follow a decision of another Court or Tribunal which is not superior to it.” (Emphasis added).
[63] The long answer, upon which I now embark, (and out of respect to Ms Tothill’s submissions) is to summarise the cases to show how they differ from Mr CA’s case, and why, strictly speaking, the Tribunal did not need to refer to them.
BC (Turkey)21
[64] This was an appeal against a decision declining to grant refugee status and protected person status to a woman who was a citizen of Turkey.
[65] Her situation was quite different to that of Mr CA here. Her husband had separately been granted refugee status. The Tribunal accepted that there were genuine fears of gender-based persecution that her previous life experiences clearly established. The Tribunal found there was a real chance that the applicant would face sustained harassment and serious physical and/or sexual abuse amounting to serious harm. This would violate her right to be free from cruel, inhuman, or degrading treatment or punishment. Ms BC was recognised as a refugee. However, the Tribunal found there were no substantial grounds for believing that Ms BC would be in danger of torture in Turkey or subjected to arbitrary deprivation of life or to cruel, inhuman or degrading treatment or punishment. Therefore, her protected person application was rejected.
[66] This case also referred to BC’s husband as an established “conscientious objector.” He had a long association with the Freedom and Solidarity Party and had attended demonstrations. At one protest he had been arrested, his identity details were taken, and he was assaulted at the police station. He was repeatedly checked up on at his workplace and one occasion assaulted. He feared arrest and detention for draft evasion if he returned, suffering ill treatment while detained, and being forced to participate in military action.
[67] His situation is completely distinguishable on its facts from Mr CA. I also add there was no analysis provided to this Court as to the nature of his conscientious objection nor the details that established it. The fact that the husband was viewed as
21 BC (Turkey) [2018] NZIPT 801262.
a “conscientious objector” cannot mean Mr CA, in this case, should similarly be viewed as a “conscientious objector”. His individual circumstances are quite different.
BP (Turkey)22
[68] BP is said to be similar to Mr CA’s claim here. The appellants were a family comprising of a husband and wife and their two sons aged 17 and 7 years.
[69] In respect of the older son, it was claimed he was a conscientious objector, opposed to military service and to the taking of human life through lethal force. The older son had developed a firearms phobia at an early age, triggered when he was about seven, when he witnessed a group of armed men engage in conflict on the street. Since then, he had feared and avoided any environment where firearms might be used. The older son did not want to kill, did not want to die, and it was accepted he considered shooting another person, even as a soldier, as akin to murder.
[70] If enlisted as a conscript, he would not be able to comply with any requirement to hold a gun or perform weapons training. He claimed, and it was accepted, that he could not control his reaction when he saw a gun and could not even hold one.
[71] The Tribunal did not accept the husband and wife’s evidence of threats of serious harm. However, the Tribunal accepted that the older son, although only 17 years of age, had thought seriously and deeply about life, death, war and their meanings. The Tribunal accepted that the son had maintained and strengthened these views over time which had become fundamental to his identity.
[72] The country information cited in that case was not as up to date as for Mr CA, and in particular did not refer to the fact that these days draft evaders are not sent to prison. The treatment of conscripts during military service also seems to have changed. The information recorded by the Tribunal in Mr CA’s case did not refer to conscripts being subject to severe ill treatment, beatings, with a high rate of suicide— as was the case in 2018 for BP.
22 BP (Turkey) [2019] NZIPT 801453-456.
[73] The difference between BP and Mr CA is that there the Tribunal found that the older son held a strong conviction and belief that it would be morally wrong to take a human life and that he would refuse to hold and operate any weapon. The Tribunal accepted the older son’s position as a genuine matter of conscience. It was sufficiently cogent and serious to constitute conscientious objection to perform military service. There was a real chance of him suffering ill treatment and repeated physical assaults for failing to comply with orders for weapon training and handling. The older son was held to be a refugee.
[74] Mr CA’s position and stance was clearly assessed quite differently (and less favourably) and was seen in a quite different context by the Tribunal.
BQ (Turkey)23
[75] The appellants again were a family, comprising a father, mother and their 16-year-old son. They were Alevi Kurds with an imputed association with the Gülen movement. This group is mentioned, in passing, in the country information in Mr CA’s decision. I understand the Turkish government considers it to be a terrorist organisation, thought by the government to be directly involved in the 2016 attempted coup.
[76] In respect of the son, it was accepted that he was deeply opposed to performing compulsory military service—he did not want to hold a weapon or be forced to kill; and he did not want to train as a killer or to kill “his own people” which would be contrary to his pacifist Alevi faith. Rather, he wanted to become a medical doctor and help people. It was accepted his beliefs were strengthened during the attempted military coup in July 2016.
[77] Although still only 16, the Tribunal accepted his strongly held conviction and belief that it would be morally wrong to serve in a military which trains conscripts to kill, in particular his own Kurdish people. This was sufficiently cogent and serious to constitute “conscientious objection” to performing military service.
23 BQ (Turkey) [2019] NZIPT 801636-638.
[78] Again, this is quite a different situation than the position of Mr CA, who was not part of a persecuted minority group. His evidence did not establish anything like the same conviction and depth of moral belief regarding military weapons and killing as for BP.
BX (Turkey)24
[79] The appellant appealed on a number of grounds including that he had a conscientious objection to performing military service. None of the grounds were said to be well founded. However, the Tribunal held that in Mr BX’s unique circumstances, although not having an objection to military service grounded in a belief, being required to serve would constitute a form of cruel treatment.
[80] Mr BX had resisted pressures as he approached the age of 20 to perform his military service. It was accepted he had a “visceral hatred” of carrying a weapon ever since he witnessed a woman immediately after being shot, with a wound to her head, with a man standing over her holding a gun. After hearing the shot ring out, and viewing the consequences, he was traumatised and still experiences flashbacks about it, years later. He did not disclose this true reason for not wanting to undertake military service but rather focused on a desire to pursue a career in business.
[81] Mr BX then decided to seek an exemption on medical grounds by putting on excessive weight. He reported for training. Although the military base was suspicious of his weight gain, he was kept mostly in a medical facility on the base and was exempted, only for the time being, from doing basic training and he did not have to carry a weapon. Mr BX feared returning to Turkey but no longer wished to pursue his artificial weight gain to avoid his continuing obligation to complete military service.
[82] The Tribunal was in no doubt that Mr BX had a deep-seated and visceral hatred of guns but was equally convinced that this did not constitute a “belief” for the purposes of art 18 of the ICCPR. Therefore, he could not sensibly be described as a conscientious objector, and he could not be classified as a refugee.
24 BX (Turkey) [2023] NZIPT 802078.
[83] However, in Mr BX’s very unusual and rare case, the Tribunal held that requiring him to perform military service would constitute “cruel” treatment in breach of art 7 of the ICCPR. Therefore, he qualified as a protected person under s 131. The well-founded fear of being persecuted in Turkey, was thus highly individualised and fact specific and is “tailored” to Mr BX’s unusual circumstances. This again is a quite different situation from Mr CA.
[84] It is also significant to note that as with the other cases so far described, the Tribunal cited detailed information regarding the position of conscientious objectors in Turkey. The Tribunal provided a detailed examination referring to both BP (Turkey) and BQ (Turkey), previously discussed. The Tribunal noted that the up-to-date country information as at 17 January 2023 (the date of the decision), painted a much more nuanced, and less severe picture regarding the evasion of compulsory military service than those earlier cases.
[85] First, there is now no “arrest” of draft evaders. The person is simply brought to the military service branch if apprehended during office hours. If apprehended outside these hours, or in a place where there is no such office, an “official record” is issued, and the person is released.
[86] Second, the primary punishment is now by way of administrative fine—just as was recorded in the case of Mr CA.
[87] Third, where criminal prosecution does occur, these usually result in a conviction. However, prison sentences are ordinarily converted to a monetary fine with only a few exceptions.
[88] Fourth, the maximum term of imprisonment which can be imposed depends on whether the person surrenders voluntarily or is arrested, and length of time which has elapsed since the person was required to report.
[89] It is also recognised now that the court process can be very lengthy and that where there is a level of objection grounded in the person’s religious beliefs, such an objection is relevant to conviction and sentencing. There are also a range of other
“civil” or “administrative” penalties. Not all this up-to-date information seemed to be before the Tribunal in Mr CA’s case, however, the information that was available clearly indicated a less serious current situation than existed at the time of the earlier cases.
BZ (Turkey)25
[90] This was an appeal against a decision refusing refugee/protected person status to a husband and wife.
[91] The husband was of Albanian/Turkish ethnicity and raised as an atheist. He reported harassment, anxiety, and depression as a result. He had a long interest in human rights and democracy, evident by his attendance at the 2013 Gezi Park protests and his posting of social media comments supporting democracy, feminism, and human rights.
[92] The husband said he was opposed to Turkey’s compulsory military service as he has no interest in being used by the state as a weapon to kill others. He found the thought of frontline service abhorrent. He had a significant visual impairment which he assumed would result in exemption.
[93] A report from the registered psychologist confirmed the husband suffered from severe depression and anxiety. He had a current medical exemption from military service during peace time.
[94] The Tribunal accepted that his atheism and other beliefs together with his significant mental ill health, would cause a real chance of serious harm on his return to Turkey, arising from the breaches of his human rights, and he qualified as a refugee. However, despite his opposition to military service, and his subjective fears, the Tribunal considered that he had little chance of being made to serve in the military or to suffer punishment from refusing to do so as he had a medical exemption. Again, this is a quite different situation from Mr CA.
25 BZ (Turkey) [2023] NZIPT 802039-040.
These cases are all different
[95] With respect to Ms Tothill’s careful argument, the foregoing summary readily highlights the significant factual differences from Mr CA’s position. All the applicants in those cases had experienced significant trauma, and/or were of a significantly different background, and/or were held to have deeply and profoundly held convictions against war, military service, and any use of guns, which clearly established from the Tribunal’s perspective that they could properly be called “conscientious objectors” and would expose them to persecution and real chance of serious harm. To that extent, while I understand Ms Tothill’s submission, it cannot succeed. In my view, she overstates the factual similarity between Mr CA’s position and all the other cases that have resulted in refugee and/or protected persons status being granted.
[96] As I mention later, the inevitable conclusion in this case, is that the Tribunal concluded that Mr CA’s evidence did not amount to him holding a strong belief or a conviction that would justify his classification as a “conscientious objector”. The equally inevitable inference from the decision is that these were lightly, if not tepidly, held views.
[97] Every appeal heard by the Tribunal is highly fact specific and involves a detailed analysis of the appellant’s personal circumstances, family background and life history. In my view, there is no need in such cases to devote additional time and judgment space in unnecessarily distinguishing quite different cases where claims of being a conscientious objector have been raised, albeit from the same country. That I have done so here, does not by inference or example suggest it is necessary. I did so simply to demonstrate that when cases are factually different, it is not necessary to discuss them in any great detail.
[98] As a counsel of prudence, perhaps the Tribunal could do so, but only briefly. In this case the Tribunal could only have said, listing the series of cases highlighted by Ms Tothill, that they are easily distinguished and have little relevance to the facts in this case. I also agree with the submission made by Ms McCoy, on behalf of the
Tribunal, that any consideration of the case law put forward by the applicant would have made no material difference to the Tribunal’s decision.
[99] I conclude there is no seriously arguable error of law in respect of Mr CA’s first ground of appeal.
Did the Tribunal err in applying the “well-founded fear” test?
[100] Mr CA says that the Tribunal erred in its application of the well-founded fear assessment. Ms Tothill submits that the Tribunal failed to assess and engage with the forms of harm Mr CA might expect to face on his return to Turkey if he were to be (i) conscripted; and/or (ii) detained or imprisoned. I deal with each of these in turn.
[101] As to the first, the risk of harm Mr CA may face if he is conscripted, was said to be significant if he refuses to obey commands (including orders to hold firearms) and becomes known as a draft evader in the army. Ms Tothill submitted that the respondent simply assumed that if conscripted into the army, Mr CA would simply obey commands and act like any other soldier. Neither it is said, did the Tribunal go into any detail as to the psychological impact that being forced to comply with military commands might have on the applicant. It is said that the Tribunal also ignored the country information which outlines that severe penalties are imposed on soldiers, including conscripts who disobey orders or run away from their units.
[102] In my view the Tribunal’s analysis of this issue was brief, but sufficient. The Tribunal expressly recorded:
(a)Mr CA’s evidence that he objects to performing military service since he is opposed to the policies of the present Turkish government and does not want to use a firearm or harm anyone.
(b)Mr CA’s evidence where he did not refer to any particular policies of the Turkish government but instead reiterated his dislike of firearms and “harming other people and things of that nature”.
(c)The country information establishing that the Turkish army has become increasingly professionalised to the point where conscripts are not sent to conflict zones and that the applicant would not be required to harm anyone.
(d)Mr CA’s evidence where he accepted that his basic training will not require him to use a firearm beyond aiming at an inanimate target.
[103] Ms McCoy notes that Mr CA gave evidence that he fears undertaking military service in Turkey because he would have to obey orders. Mr CA reported being told this from friends who had completed their military service. However, the applicant did not raise in his oral evidence, what, if any, consequences conscripts would face for failing to obey orders, such as refusing to hold a firearm or if it became known he had been a draft evader. As I understand it, nor did he raise in great detail what orders he would refuse to comply with. Nor did he raise whether a failure to obey orders would result in serious physical harm or have any psychological impact on him.
[104] Given the limitations in Mr CA’s evidence and what seems to be his lightly held views, the risk of harm in the context of him being conscripted, and in light of the relevant country information, was properly engaged with and fairly categorised as being “speculative”.
[105] In respect of the second risk—harm arising from being detained or imprisoned for evading military conscription—I also accept it is not seriously arguable that the Tribunal erred in this analysis.
[106] The country information establishes that imprisonment for avoiding service is not used in practice; that fines are ordinarily levied and continue to do so for the period authorities consider an individual has evaded conscription; that imprisonment is not used as a penalty for unpaid fines in Turkey; and, in practice, there are so many conscription evaders that the state lacks capacity to follow-up on these cases.
[107] I accept that the Tribunal could have gone into these matters in more detail. But the Tribunal’s reasoning is clear that when all the risks pointed to by Mr CA are analysed, the risk of serious harm for him is only remote and speculative.
[108] I also cannot help but observe that the underlying theme in this part of the Tribunal’s decision is that Mr CA “did not satisfy the Tribunal that his objection to military service is based on principled convictions grounded in religious belief, philosophical tenets or ethical considerations”. In other words, his so-called “conscientious objection”, was too unformed and not deeply held enough to justify such a description. And it is also worth emphasising that in those circumstances as the Tribunal found them to be, requiring the applicant to undertake a finite period of military service or face the imposition of fines, could not be considered an impermissible limitation on his rights under art 18 of the ICCPR.
[109] I also agree with Ms McCoy that it is too easy to conduct a fine-tuned analysis of a decision and particularly to challenge the weight that might have been given to parts of the decision. I accept that weighting, certainly in this case, is a matter for the Tribunal alone. The Tribunal was entitled to accord the weight that it did to the evidence. On top of that, there is nothing here to rebut a perfectly reasonable presumption that the decision-maker has considered all the information that was explicitly before it.
Did the Tribunal make significant mistakes of fact that amount to an error of law?
[110] Ms Tothill submits that the Tribunal made two incorrect factual findings which cumulatively amount to an error of law:
(a)that Mr CA has options available to him on return to Turkey; and
(b)that Mr CA’s objection to conscription is not grounded in genuinely held beliefs.
[111]I deal with each of these in turn.
First alleged factual mistake—the options available to Mr CA on his return to Turkey
[112] The Tribunal certainly stated that Mr CA has two options available to him in Turkey: he can either choose to undertake military service or to face repeated fines and court prosecutions for failing to do so.
[113] Mr CA’s evidence was apparently clear that he would not pay fines, which he sees as contributing to the funding of the Turkish military, and he is morally opposed to that.
[114] It is Mr CA’s case that given his unwillingness to pay fines, the second option actually becomes “arrest and evidential detention”. This would expose him to other forms of serious harm. It is said that arrest and detention cannot be reasonably categorised as “an option” in the refugee determination context. I do not agree with this characterisation of Mr CA’s second option. It is merely the applicant’s assertion, and as Ms McCoy emphasises, did not form part of the Tribunal’s finding. In any case, there was clear evidence before the Tribunal that imprisonment is not used as a penalty for unpaid fines in Turkey. Ms McCoy also asserts that the applicant did not give evidence that he refuses to pay fines for evasion—although this may be disputed.
[115] The Tribunal in these circumstances could not be said to have made any factual error. Mr CA despite his opposition to pay fines, does retain a choice upon his return. I accept that the Tribunal did not address what might happen if Mr CA did not opt for either conscription or the payment of fines, but the country information suggests that the result would be repeated fines. It was reasonably open to conclude that in any scenario there would not be a well-founded fear of harm. These are all matters of weight for the Tribunal.
Second factual error—objection to conscription not grounded in genuinely held belief
[116] Ms Tothill takes issue with the Tribunal’s finding that Mr CA does not have a genuinely held belief grounded in religion philosophy or ethics, that would amount to conscientious objection. As I reflect on this submission—that finding is perhaps
central to the Tribunal’s decision and is a common thread running through its reasoning.
[117] I understand Ms Tothill’s point that the Tribunal found Mr CA’s factual evidence to be credible. However, the Tribunal has a task to assess that evidence and to make careful findings about it. In this case, the Tribunal made that careful consideration. That process is a matter of assessment and weight placed by the Tribunal on the evidence. The Tribunal has expertise in this area. Frankly, as I interpret Ms Tothill’s submission, it would be inviting the Court to re-hear the matter and reach its own (different) conclusion.
[118] Generally, in cases involving alleged conscientious objectors, objections to service must be those that could appropriately be categorised as a “belief”. A point of view based on personal inconvenience or discomfort does not suffice. Here, the Tribunal carefully concluded that while Mr CA’s private point of view was that he did not want to perform military service, he did not satisfy the Tribunal that this objection was based on principled convictions grounded in religious belief, philosophical tenets, or ethical considerations.
[119] The Tribunal was entitled, after its assessment of the evidence as a whole, to conclude that Mr CA’s general political views would not expose him to a risk of serious harm. It is the Tribunal’s job to weigh and analyse evidence. It would be wrong for this Court to concern itself with the merits of the case on appeal on a point of law.
[120] Further, both counsel accepted that alleged errors of fact have a high bar in meeting the triple hurdle identified in Taafi v Minister of Immigration.26 In my view Mr CA has nowhere near established that there are factual errors, which in combination and in context are so grave as to constitute an error of law. Nor has he established that any of the alleged errors would have led to a materially different outcome.
26 Taafi v Minister of Immigration, above n 15, at [19].
No matters of general or public importance or any other reason for granting leave
[121] Even if the issues raised by Mr CA were capable of genuine and serious argument, which I have found they are not, leave ought not to be granted in this case because Mr CA has not demonstrated any alleged error of law which raises matters of general or public importance.
[122] To qualify, the issues would need to go beyond the particular circumstances of Mr CA or raise an issue that suggests existing laws should be revisited. It is insufficient simply to assert that when individual rights are at stake, they can in every case be transformed into being matters of general or public importance. I accept a person’s right to exercise conscientious belief is significant. But in this case, there is no way that the alleged errors could meet the threshold of general or public importance, nor satisfy the “any other reason ground”. This is not a rare and exceptional case involving individual injustice to such an extent that the Court could not countenance the decision standing.
Conclusion
[123] Ms Tothill’s thoughtful and comprehensive argument establishes no errors of law in the Tribunal’s approach, let alone any errors that ought to be submitted to the High Court on appeal. With respect, there is no basis for granting leave and the leave application must be, and is, dismissed.
Becroft J
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