AATA Case No. 1609600

1609600 (Refugee) [2016] AATA 4558 (4 October 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1609600

COUNTRY OF REFERENCE: Turkey

MEMBER: Giles Short

DATE: 4 October 2016

PLACE OF DECISION: Sydney

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

Statement made on 04 October 2016 at 1:35pm

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
INTRODUCTION

1. [The applicant] is a citizen of Turkey. He has said that he belongs to the Kurdish ethnic group and that he lived in [City 1] where he worked as a [occupation] before coming to Australia [in] July 2013. He has said that he comes from a family who are known in [City 1] for their political activities and that he himself was involved in Kurdish political parties and in Kurdish political and cultural activities in [City 1]. In a statutory declaration accompanying his application for a protection visa he said that he feared that if he returned to Turkey he would be persecuted due to his political opinion, his ethnic identity and his membership of political groups and of a politically active family.
2. [The applicant]'s application for a protection visa was refused by a delegate of the Minister for Immigration and he applied to this Tribunal for review of that decision. On 1 March 2016 the Tribunal, differently constituted (the first Tribunal), affirmed the decision under review. [In] June 2016 the Federal Circuit Court ordered, by consent, that a writ of certiorari issue directed to the Tribunal quashing the decision dated 1 March 2016 and that a writ of mandamus issue directed to the Tribunal requiring it to determine according to law the application made to it for review of the decision of a delegate of the Minister dated [October] 2014 to refuse to grant the applicant a Protection (Class XA) visa. The Federal Circuit Court noted that the Minister conceded that the decision of the first Tribunal dated 1 March 2016 was affected by jurisdictional error due to the Tribunal 'being diverted from addressing the fundamental question of whether the Applicant had a well-founded fear of persecution were he returned to Turkey'. It said that, having found at [49] of its decision that the applicant had attended pro-Kurdish events that had also been attended by members of the Kurdistan Workers' Party or PKK, the Tribunal had turned to consider at [63] only the ways in which the applicant could avoid coming to the adverse attention of Turkish authorities, and not whether he would avoid such behaviour. It said that this had led the Tribunal to fail to consider the fundamental question of whether the applicant would avoid such behaviour due to a well-founded fear of persecution and that in this way the Tribunal had fallen into an error of the sort identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [88].
3. The matter is now back before the Tribunal pursuant to the orders made by the Federal Circuit Court. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. The issue in this review is whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Turkey.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Turkey?

[The applicant]'s claims

4. [The applicant] is aged in his early [age]. In a statutory declaration accompanying his application for a protection visa he said that he spoke Kurdish fluently but that he could not read or write it well. He said that his mother, his brother [Mr A] and his sister [Ms B] were politically active. He said that one of his [relatives] had joined the PKK (Partiya Karkerên Kurdistan or Kurdistan Workers' Party) in 1989 and had been killed by Turkish soldiers in 1994, and that this [another relative[, [Mr C], had also joined the PKK, in 1992, and had been killed by Turkish soldiers in 1995. He said that he had attended [Mr C]'s funeral. He said that a [relative], [name], had also joined the PKK and had been killed in fighting with the Turkish army in 1996. He said that another of his [relatives], [name], had been sentenced for political offences but had fled Turkey and had been granted protection in [Country 1]. He said that [other] [relatives], [names], had been given refugee status in [Country 1], [and other countries] respectively. He said that another [relative], [name], was with the PKK in northern Iraq.
5. [The applicant] referred to problems which he had had in his childhood when the police had raided his home looking for his [relative] [Mr C]. He said that he had been subjected to insults and discrimination by teachers and Turkish students at his school. He said that he had been detained three times and held overnight because he had been talking Kurdish and attending political activities such as Newroz celebrations, the funerals of Kurdish fighters or marches. He said that he had started attending DEHAP (Demokratik Halk Partisi - Democratic People's Party) and in 2005 the DTP (Demokratik Toplum Partisi - Democratic Society Party). He said that in 2006 he had attended the funeral of four PKK guerrillas and he had been hit with a police baton, [injuring him]. He said that the police had harassed him at his place of work. He said that at Newroz in March 2008 party officials had asked him to control and guide the crowds. He said that after Newroz he had been detained for [number] days, slapped, insulted and beaten with fists. He said that the police had threatened that they would kill him.
6. [The applicant] said that while he had been performing his compulsory military service between [month] 2008 and [month] 2009 he had been treated as if he were a terrorist by which he said he meant that he had been insulted, threatened and treated unfairly because he was a Kurd. He said that after completing his military service he had resumed his political involvement. He said that in May 2010 he had attended the funeral in [location] of a Kurdish student who had been [killed] and that in May 2011 he had attended the funeral of 12 guerrillas who had been killed by Turkish soldiers. He said that he had been detained for about [number] hours and assaulted and threatened by the police while in detention. He said that he had attended meetings of the BDP (Barış ve Demokrasi Partisi - Peace and Democracy Party, the DTP's successor) and he had noticed that he had been being followed. He said that he had attended demonstrations organised by the BDP in 2012 to show solidarity with Kurdish prisoners who were holding a hunger strike. He said that [in] November 2012 he had been arrested by officers in plain clothes and taken to the anti-terror unit where he had been held for more than [number] hours. He said that he had been interrogated, tortured and accused of supporting a terror organisation, the PKK/KCK (Koma Civakên Kurdistan - Kurdistan Communities Union, the umbrella political organisation of the PKK).
7. [The applicant] said that he had left his job because the police had known where he was working and that he had also stopped living at his family home. He said that for [number] months he had stayed with [Relative 1] in [City 1], close to his home. He said that [in] February 2013 he had attended a demonstration on the anniversary of Abdullah Öcalan's arrest and he had been shot with a plastic bullet. He said that in March 2013 he had decided to leave Turkey. He mentioned at this point that another relative, [name], who he said had been engaged in similar political activities to him, had been killed in 1993 or 1994. He said that he had escaped to Istanbul and had applied for his passport (issued [in] 2013). He said that he had organised his Australian [visa] through an immigration agency in Turkey. He said that because he had not felt safe in [City 1] he had stayed in Istanbul for about 20 days before he had left Turkey [in] July 2013. He said that he believed that he had not had any difficulty leaving Turkey because there had never been any records of the police detaining him and a court had never issued a warrant for his arrest. [The applicant] said that he feared that if he returned to Turkey he would be persecuted due to his political opinion, his ethnic identity and his membership of political groups and of a politically active family.
8. [The applicant] was interviewed by the primary decision-maker in relation to his application [in] March 2014. He said that there was nothing in his application which he wanted to change. He said that a friend in [suburb] had filled out his application forms for him. Asked why he had left Turkey he referred to his political involvement and the fact that he was Kurdish. He said that the police and the state did not accept this. He said that if he had stayed in Turkey he would have experienced a lot of violence which would probably have led to his death. He said that Kurds were denied their language and their existence. He said that the police always stopped them or obstructed them. He said that if he returned to Turkey he would again be involved in activities defending his rights and he said that this would probably lead to his death. He said that he would be involved in activities like marches which were illegal. He said that he had not been a member of the Kurdish parties like the DTP and the BDP but he had been involved in their activities.
9. [The applicant] said that he had attended DEHAP sessions three to six times when he had been in high school. He said that he had been involved in discussions. He said that he had gone more frequently to the meetings of the DTP. He said that he had also attended cultural activities like concerts of Kurdish music. He said that he had gone to the Saturday Mothers and the Peace Mothers with his mother. He said that he had had the same involvement with the BDP. He said that the funeral of four PKK guerrillas which he had mentioned had been [in] [2006]. He said that the police had used capsicum spray and many people had been injured as well as him. He also said that he had been involved in a march to protest the killing of a student [who] had been [killed]. He said that he had felt strongly that he had been under surveillance after this. He said that the funeral of 12 guerrillas in [2011] had been held in many parts of Turkey but he had joined the one in [location].
10. [The applicant] confirmed that he claimed that [in] November 2012 he had been detained at the anti-terror unit and he said that he had moved to his [Relative 1]'s home two or three weeks later because he had been being followed and the police had kept coming to his family home. He said that his [Relative 1]'s home was only [a certain distance] from his own home. He said that he had not been leaving the house but he then said that he had left once or twice, for example to join a march on the anniversary of Abdullah Öcalan's arrest on 15 February 2013. He confirmed that he claimed that he had been hit by a plastic bullet at this march. He said that he had not moved to another city because he belonged to [City 1]. He said that he had had to leave work because the police had been coming to his place of work and threatening him.
11. [The applicant] said that after he had decided to leave Turkey he had consulted his [relatives] in other countries but he had only applied for a visa to come to Australia. He said that his mother had wanted him to leave Turkey and his [sibling] who lived here had told him that he could come here [and] had found him an agent. He said that he had spent 10 days in Istanbul and then he had returned to [City 1] for two or three days to say goodbye to his family before returning to Istanbul for a day before boarding his flight to Australia. He said that he had been to Istanbul many times. He said that he had not left Turkey as soon as his [visa] had been issued [in] June 2013 because he had gone to many travel agencies to find a ticket at the right price.
12. Under cover of a submission dated 15 January 2016 [the applicant]'s representative produced a brief statutory declaration made by [the applicant] on the same day in which he said that a [relative] named [name] who had joined the PKK in mid-2014 had been killed in Kobane in December 2014. He said that his mother's [relative] had joined the PKK in the last couple of years and that he had no news of her. He said that [other] [relatives] - [names] - had joined the PKK in 2015. He also produced photographs of [names], the funeral of his [relative] (who he said had been killed in [location] in September 2015) and damage to buildings in [City 1] in December 2015 as well as photographs showing him at protests in Australia in September 2014, November 2015 and January 2016, with [a person] at [Organisation 1] in early 2014 and at a celebration held by [Organisation 1] for [deleted] in January 2015. He also produced a photograph showing the injury which he claimed he had suffered from a plastic bullet in February 2015.
13. In her covering submission [the applicant]'s representative said that his claims related to actual and imputed political opinion, his membership of a particular social group (as an activist or specifically a political or human rights activist) and his Kurdish ethnicity. She submitted that [City 1] was known for its activism and that along with other areas in the south-east it had become a battle zone. She also referred to violence between Kurdish activists and the police in Istanbul in December 2015 and to the bombing at a pro-Kurdish peace rally in Ankara in October 2015. She quoted comments from the US State Department Country Reports on Human Rights Practices for 2013 in relation to Turkey suggesting that the government regarded most demonstrations as a security threat to the state. She also referred to attacks on the pro-Kurdish HDP (Halkların Demokratik Partisi or Peoples' Democratic Party) at the time of the general election in June 2015. Finally she quoted at length from the US State Department Country Reports on Human Rights Practices for 2014 in relation to Turkey.
14. At the hearing before the first Tribunal on 21 January 2016 [the applicant] said that his [brother] [Mr A] and his [other siblings] all lived with his parents in [City 1]. He said that [one] brother was at [university]. He said that one of his other [brothers] was a [occupation] in [Town 2] and his other [brother] was a [occupation] who lived in his own home in [City 1]. He said that his [brother] [Mr A] was also a [occupation] but he had not been appointed yet. He said that he himself had been more politically active than his brothers. He said that they were active too but not as much as him. He said that he had gone to Kurdish party buildings more often and he had taken part in protests. He said that he had been noticed by the police and he referred to the occasions on which he had been detained. He said that the fact that the authorities were not looking for him at the moment did not mean that he would not attract their attention if he went back to Turkey. He said that even if he relocated to Ankara or Istanbul he would defend Kurdish people and he would continue his political activities. He said that he would not stay quiet.
15. [The applicant] said that he was an activist defending human rights. He said that he had felt obliged to attend the funerals of PKK guerrillas because of his relatives who had been killed in the past and because he believed that the PKK guerrillas were fighting in the mountains for the Kurds and they were dying 'because of us'. He said that if he returned to Turkey he would take part in protests because he would be against the views of the ruling party and he would not be able to stay quiet in the context of the harassment and persecution of the Kurdish people. He said that there would be no security for his life in Turkey. He said that his parents had gone to his [brother]'s place in [Town 2] because of the life-threatening situation in [City 1] although their house remained in [City 1]. He said that when he had said earlier that they were living in [City 1] he had been referring to where they were settled, not where they were actually living at the time of the hearing.
16. In further submissions dated 4 February 2016 [the applicant]'s representative referred to information indicating that political activists from the HDP had been detained on the basis that they were an extension of the PKK as had happened with activists of the BDP in the past. She also referred to the assassination of three Kurdish activists in Silopi in January 2016. She submitted that the treatment which the applicant had endured when he had been detained in the past came within the definition of 'serious harm'. She produced a letter on the letterhead of the Demokratik Bölgeler Partisi (DBP - Democratic Regions Party, a new name for the BDP), together with a translation, saying that [the applicant] had actively participated in the party's activities between 2010 and 2013. In a covering submission she also quoted information about the situation in Diyarbakır where the security forces were fighting the youth wing of the PKK and tens of thousands of people had been forced to flee.
17. Under cover of a further submission dated 17 February 2016 [the applicant]'s representative produced the original of the letter from the DBP and a letter dated [February] 2016 from [Organisation 1] saying that [the applicant] had participated in social and cultural activities organised by the association. [The applicant]'s representative referred to information about restrictions on freedom of expression in Turkey, the shooting of unarmed Kurdish civilians by Turkish forces in Cizre, clashes and arrests at protests, attacks on offices of the HDP and the outcome of the election on 1 November 2015 in which the ruling Justice and Development Party (AKP) had regained its parliamentary majority.
18. [paragraph deleted].

Discussion of [the applicant]'s claims

19. At the beginning of the hearing before me [the applicant] produced further material downloaded from the internet in relation to the situation in Turkey. He confirmed that he claimed that he had been assisted by a [friend] when he had prepared his application. He said, however that a [Organisation 2] lawyer had also assisted him. I noted that the form said that he had been assisted by an interpreter named [name]. [The applicant] said that this interpreter might have been arranged by the [Organisation 2]. I noted that the form also said that he had been assisted by his [sibling] in Australia when he had filled out the form. [The applicant] said that his [sibling] did not have much English and [had] helped him with a very few sentences. He said that it had been his friends at [Organisation 1] who had told him that he could get help through the [Organisation 2]. He said that he had been assisted by a Turkish interpreter as well as the lawyer when he had prepared the statutory declaration accompanying his application.
20. [The applicant] said that his parents, [a few] of his [brothers], his [other siblings] were all living in [City 1]. He said that [one] brother had finished university. He said that his other [brother] ([name]) was living in Mersin. I noted that he had said in his statutory declaration that a number of members of his family were politically active. He had said that his mother was particularly active: she attended demonstrations and she was active in the Kurdish political parties. He had said that his [brother] [Mr A] also attended political meetings and helped to organise rallies. [The applicant] said that [Mr A] was also involved but not that much: he attended meetings but he did not organise them. He had been helping but he had not organised anything.
21. I put to [the applicant] that these members of his family like his mother and his brother [Mr A] were still in [City 1] whereas he had said that he had had to leave [City 1] and indeed to leave Turkey. [The applicant] repeated that [Mr A] had not been as active politically as he had been. He said that neither his brother nor his mother had taken part in any activities that would harm the state forces. He confirmed that he himself had not taken part in such activities either. I noted that in his statutory declaration he had set out at some length the fact that he came from a political family: various of his relations had been involved in the PKK and a number of them had been killed fighting for the PKK. However, as had been discussed at the hearing before the first Tribunal, any problems which he would have because of his relationship with these members of his family would also be problems that the other members of his family who were still living in [City 1] would have.
22. [The applicant] said that his mother had experienced the same problems which he had experienced. He said that some of his siblings had been active, but not as much as him. He said that they had also been detained and questioned a number of times. He said that [Mr A] had been taken into custody a number of times and questioned and his sister [Ms B] had also been questioned. He said that his mother had also been questioned many times. I noted that he had said that his mother had wanted him in particular to leave Turkey. [The applicant] said that towards the end the police had increased their actions on him and he had experienced tortures and custody. He said that his mother had known that he was going to continue his political activities so she had wanted him to leave. He said that now she was telling the other members of his family to leave Turkey if they could.
23. I noted that [the applicant] had referred to not having the freedom to speak his language. I put to him that the Australian Department of Foreign Affairs and Trade had advised that the use of Kurdish in public was legal in Turkey.^[1] [The applicant] referred to a media report which he produced in which it was suggested that a person had been killed by ultra-nationalists known as the Grey Wolves because he had been speaking Kurdish while waiting for a bus.^[2] I put to [the applicant] that this was a different issue: it did not affect the fact that it was legal to speak Kurdish in public in Turkey. [The applicant] agreed that speaking Kurdish was not banned but he said that the nationalists did not like it or accept it. He said that millions of Kurds were experiencing problems. He said that people were free to speak Kurdish in some cities but in others they were not. He said that if you applied for a job and you said that you were Kurdish you would not get the job.
24. I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had said that Kurdish was commonly used in Turkey and that societal discrimination against Kurds rarely occurred in south-eastern Turkey given the large Kurdish population in the area.^[3] [The applicant] said that this was correct. I put to him that the US State Department had said that for the past three years people had been able to celebrate Newroz freely across Turkey.^[4] [The applicant] said that this was also correct.
25. I put to [the applicant] that this suggested that he would not have problems because he was Kurdish or because he wanted to assert his Kurdish cultural identity. [The applicant] said that there had been a decision made only on the day before the hearing to close 12 Kurdish radio and television channels. He said that one of these had been a children's television channel. I put to him that without knowing more of the reasons I could not speculate on why these channels might have been closed down. [The applicant] said that the government of the day was putting as much pressure as they could to suppress the Kurdish language, culture and way of living. I put to him that for the reasons we had just been discussing this was clearly not true. Under the AKP government all the restrictions on the use of Kurdish in public places had been lifted.^[5]
26. [The applicant] produced another media report relating to the killing of a Kurdish worker by nationalists.^[6] I put to him that once again this was a different issue. I acknowledged that there were undoubtedly people in Turkey who were prejudiced against Kurds and I noted that the fighting between the government and the PKK inevitably meant that there were people in Turkey who felt that the Kurds were not part of Turkey.^[7] I put to him that this did not mean that the government was suppressing Kurdish culture. [The applicant] referred again to the decision to close 12 Kurdish radio and television channels. He also referred to the government closing Kurdish city councils and arresting people involved in Kurdish demonstrations. I noted that, as he would be aware, this was because of alleged involvement with the PKK.^[8] [The applicant] said that this would only be true if you classified all the people who wanted to think freely together with the PKK.
27. I noted that [the applicant] had said that he had been involved in Kurdish political parties in Turkey and I asked him about the activities in which he had been involved. [The applicant] referred to meetings and he said that he had assisted in carrying placards at rallies, he had distributed newspapers and magazines and they had discussed what they should do to stop any problems coming up during the rallies. He said that they had talked with each other about the problems of the day. He said that the rallies had been human rights rallies, rallies for equality and rallies to stop the killings. He said that they had held peace rallies more than anything else. He said that he had also been involved in campaigning at elections. He said that at the last election before he had come here they had been sent to different suburbs and districts to tell people how to cast a valid vote by using a round stamp to stamp the ballot paper. He said that they had done this without putting people under any pressure to vote for a particular party but he then said that they had only told people who had been going to vote for the BDP how to cast a valid vote: they had not given this information to people who had been going to vote for other political parties. He said that besides this they had also distributed brochures during election campaigns and they had also hired places for entertainment like folk-dancing during election campaigns. He emphasised again that they had not been pressuring anybody to vote for the BDP.
28. I referred to [the applicant]'s evidence that in 2006 he had attended the funerals of four PKK guerrillas in Diyarbakır and that his [body part] had been broken on this occasion. [The applicant] said that the police had attacked people using gas and batons. He said that the police had hit him using batons, breaking his[body part]. He said that they had not been together with the coffins: he said that the families of the dead had been taking the coffins to the cemetery to bury them. He said that he and the group that had gathered there had been walking towards the cemetery when the police had started attacking people with gas and batons. He said that the police had told them that they were not allowed to do this kind of walk. I put to [the applicant] that the information available to me indicated that the funeral procession had been peaceful and that the violence had only broken out after the funerals when young men like him had attacked a police station.^[9] [The applicant] said that he did not remember anything as such happening.
29. I referred to [the applicant]'s evidence that in May 2011 he had attended the funerals of 12 guerrillas who had been killed by Turkish soldiers. I noted that when he had been interviewed by the officer of the Department he had said that these funerals had been held in many parts of Turkey but he had joined the one in [City 1]. [The applicant] said that this had been a funeral procession like the one which he had attended in 2006 but he could not remember how many of the guerrillas had been buried in Diyarbakır. He said that it might have been four or six. I put to him that the information available to me suggested that there had been two separate incidents in Diyarbakır in May 2011. There had been a funeral procession for four guerrillas in Diyarbakır but this had been about a week before the 12 guerrillas to whom he had referred had been killed.^[10] [The applicant] repeated that in May 2011 he had taken part in the funerals of 12 guerrillas but he then said that he had taken part in the rallies protesting the killing of these people by the state. He said that he could not remember whether, as I had said, there had been two separate incidents. He said that there had been a protest and he had been detained at that protest.
30. I referred to [the applicant]'s evidence that in November 2012 he had been detained by the anti-terror unit and that after this he had gone into hiding in his [Relative 1]'s [place] but that he had said that this was only [a certain distance] from his own home in [City 1]. I noted that he had also said that, although he had been in hiding, he had gone to a demonstration on the anniversary of Abdullah Öcalan's arrest on 15 February 2013 and that he had been hit by a plastic bullet on this occasion. I referred to the fact that he had said that he had gone to Istanbul. [The applicant] said that he had gone there for his medical examination in relation to his visa. He confirmed that he had then returned to [City 1] to say goodbye to his family before leaving the country. I put to him that what he had said he had done did not suggest that he had feared being arrested again by the Turkish authorities. [The applicant] said that while he had been going from Istanbul to [City 1] he had used a different name to buy his bus ticket. He said that the government had not been looking for him and there had been no court decision against him at the time. He said that he had not harmed any government forces. He said that this had been why he had been able to go back to [City 1] to say goodbye to his family.
31. I put to [the applicant] that the fact that no one had actually been looking for him cast doubt on his claimed reasons for leaving Turkey. [The applicant] then said that after [November] 2012 the police had been looking for him. He said that he had been staying at his [Relative 1]'s place but they had not known this and because he had left [City 1] using a different name he had had no problems. I put to him that he had just told me that no one had been looking for him. [The applicant] said that, as he had mentioned in his statutory declaration, the police had been looking for him. He said that about a month after he had come here the police had gone to his home looking for him and his mother had told them that he had escaped out of the country but they did not know where he had gone.
32. I put to [the applicant] again that his own behaviour did not suggest that he had believed that the police had been looking for him in [City 1]. [The applicant] said that the police from the anti-terror unit had been looking for him. He said that he had been being monitored. He said that the police in other branches like passport and traffic had not been looking for him and he had not committed any crime. I put to him that on the one hand he said that the anti-terror unit had been looking for him but on the other hand he said that he had gone to a demonstration in February 2013. [The applicant] said that he had taken part in this demonstration together with his [relatives] and his mother. He said that he had probably taken a risk by doing this but he had just wanted to be there and he had not been carrying any placards or anything like that.
33. I put to [the applicant] that then he had said that he had gone to Istanbul, taking the precaution of buying a bus ticket in a false name, but he had said that after this he had gone all the way back to Diyarbakır so that he could say goodbye to his family. I put to him that once again this did not suggest that he had feared being arrested by the anti-terror unit. [The applicant] said that he had gone back to [City 1] to say goodbye to his mother. He said that he had not done this before he had gone to Istanbul because he had not had a visa then. He said that he had gone to see his mother because he had probably not been going to see her again for a very long time.
34. [The applicant] referred to one of the documents which he had produced at the beginning of the hearing which he said stated that about [Kurdish] [workers who] had been dismissed from their jobs in Turkey. He said that his brother [name] had been one of these [workers]. He said that the government had apparently started a case against his brother because he had written somewhere that [details deleted]. [The applicant] said that after he had come here his mother had been taken into custody a number of times. He said that he did not know if she had been tortured or what they had done to her. He said that of course she would not tell him this. He said that [the] wife of his [relative] had been killed by the state forces. He referred to another of the documents which he had produced relating to this killing.^[11] He said that he had been brought up by these people. He said that at this moment this woman's husband and their children were in gaol.
35. [The applicant] said that he was from a family who were known in [City 1] and there was more violence and pressure on families who were known in this way. He reiterated that he had never committed any acts of violence against the state forces and he said that he was definitely against this. He said that some of his [relatives] or his other relatives might have chosen a different way but he had not done this and he would not choose this way. He referred to the travel advice issued by the Australian Government warning Australian citizens not to go to [City 1] in particular because there was no security for people's lives there. He said that his mother had told him that if he came back there he would be arrested. He said that he had been here for three and a half years and he had been involved in all the rallies and meetings of [Organisation 1]. He said that he had not been telling me lies. He repeated that his mother had told him that if he returned there he might go to gaol for many years.

Conclusions

36. Like the primary decision-maker and the first Tribunal, I accept that [the applicant] supported and continues to support Kurdish political parties in Turkey, that he attended rallies and demonstrations and that he suffered serious harm at the hands of the police as a result as he has claimed. While, as I discussed with [the applicant] in the course of the hearing before me, the independent evidence does not support his claims that he will not be able to speak Kurdish freely in Turkey, for example, I accept on the basis of his evidence at the hearing before me that he is someone who feels very strongly about the situation of the Kurds in Turkey and what he believes to be the suppression of the Kurdish language, culture and way of living by the Turkish Government. I accept that if [the applicant] returns to Turkey now or in the reasonably foreseeable future he will maintain his involvement in Kurdish political parties and he will continue to take part in Kurdish political and cultural activities. I accept that if he does so there is a real chance that he will once again suffer persecution involving serious harm for reasons of his political opinion as I have accepted has occurred in the past.
37. Relevantly the Australian Department of Foreign Affairs and Trade has advised that the renewed conflict with the PKK in 2015 has led to arrests of non-violent protesters and activists on terrorism charges, with some human rights groups claiming ill-treatment of detainees. It has referred to the fact that over recent decades the Turkish Government has forced many Kurdish parties to disband, declaring them illegal on the accusation that they have provided support for the PKK. The Department has referred to the fact that parliament has removed the immunity of a number of MPs including 50 from the HDP. It has said that overall it assess that the situation for Kurds has not improved since the 2014 DFAT Country Information Report. It has said that Kurds remain at risk of harassment through the legal system and discrimination in public sector employment. It has also said that the ongoing violence in the southeast (from where [the applicant] comes) disproportionately affects Kurds, given that they are the majority in the region, and it had said that the enforcement of temporary security zones and curfews by the military has inhibited access to health services, education, work and other aspects of everyday life.^[12]
38. The Immigration and Refugee Board of Canada has reported that there were hundreds of attacks on HDP offices at the time of the elections in 2015 and that these attacks included bombings, assaults, mob attacks, vandalism, a lynching attempt, and arson. It said that in the majority of cases there were no records of anyone being indicted for the violence. Like the Australian Department of Foreign Affairs and Trade it observed that the level of persecution experienced by members of Kurdish political parties like the BDP and HDP generally reflected the evolution of the armed conflict between the Turkish Government and the PKK. It referred to the fact that Freedom House had reported that, after the ceasefire initiated between the government and the PKK in March 2013 had failed in July 2015, officials had accused the HDP of being a proxy for the PKK. It referred to the fact that between 24 July and 9 October 2015, 2,308 HDP members had been taken into custody and 542 had been arrested, that between the June and November 2015 elections approximately 500 HDP members and officials, including 20 mayors, had been detained on terrorism charges and that, according to Human Rights Watch, the Turkish government had 'a track record of using over[ly]-broad terrorism laws to silence dissent, including by detaining and prosecuting peaceful Kurdish activists as though they were members of the outlawed PKK'.^[13]
39. The US State Department has reported that the Turkish Government regards many demonstrations as security threats to the state and it deploys large numbers of riot police to control crowds often using excessive force resulting in injuries, detentions, arrests and even deaths. It referred to the fact that, according to the Human Rights Association, between 21 July and 30 August 2015 alone the police intervened in 145 meetings and demonstrations and 132 people (including 12 children) were seriously wounded during this time in demonstrations relating to the increased violence between the security forces and the PKK. It reported that, according to the Human Rights Foundation, in November the security forces detained 3,038 people and arrested at least 201 during protests and demonstrations that resulted in 203 injuries. It said that human rights organisations remained critical of the violent police response to demonstrations and police use of tear gas.^[14]
40. Having regard to the independent evidence I consider that, if [the applicant] returns to Turkey and maintains his involvement in Kurdish political parties and in Kurdish political and cultural activities, as I have found that he will, there is a real chance that he will again be detained or that he will suffer physical injuries as he has in the past while taking part in non-violent political protests. I consider that the persecution which [the applicant] fears involves 'serious harm' as required by paragraph 91R(1)(b) of the Act in that it involves a threat to his liberty or significant physical harassment or ill-treatment. I consider that his political opinion is the essential and significant reason for the persecution which he fears, as required by paragraph 91R(1)(a) of the Act. I further consider that the persecution which he fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason. Since the Turkish Government is responsible for the persecution which [the applicant] fears, I consider that there is no part of Turkey to which he could reasonably be expected to relocate where he would be safe from the persecution which he fears. I note in this context that, although [the applicant] might be able to escape the ongoing violence in the southeast by relocating to a city in western Turkey like Istanbul, the arrests of peaceful Kurdish activists occur throughout the country and the use of excessive force against peaceful protests has been just as marked in cities like Istanbul as in the southeast. The Immigration and Refugee Board of Canada referred, for example, to a report that on 1 May 2016 the police had used tear gas against HDP members who had staged a protest in the Bakirkoy area of Istanbul and the US State Department likewise reported that the Turkish Government took extraordinary security measures in Istanbul on 1 May 2016, using pressured water, pepper gas and plastic bullets against crowds and detaining hundreds of people.^[15]

CONCLUSIONS

41. I find that [the applicant] is outside his country of nationality, Turkey. For the reasons given above, I find that he has a well-founded fear of being persecuted for reasons of his political opinion if he returns to Turkey now or in the reasonably foreseeable future. I find that he is unwilling, owing to his fear of persecution, to avail himself of the protection of the Turkish Government. There is nothing in the evidence before me to suggest that he has a 'right to enter and reside in' any country other than his country of nationality, Turkey, of the kind referred to in subsection 36(3) of the Migration Act.^[16] It follows that I am satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore he satisfies the criterion set out in paragraph 36(2)(a) of the Migration Act.

DECISION

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

Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW

1. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

'(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 under the Refugees Convention as amended by the Refugees Protocol; 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.'

Refugee criterion

2. Subsection 5(1) of the Act defines the 'Refugees Convention' for the purposes of the Act as 'the Convention relating to the Status of Refugees done at Geneva on 28 July 1951' and the 'Refugees Protocol' as 'the Protocol relating to the Status of Refugees done at New York on 31 January 1967'. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a 'refugee' as 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.'

3. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.
4. The definition contains four key elements. First, the applicant must be outside his or her country of nationality. Secondly, the applicant must fear 'persecution'. As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve 'serious harm' to the person and 'systematic and discriminatory conduct'. Subsection 91R(2) stated that 'serious harm' included a reference to any of the following:
   • (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.
5. In requiring that 'persecution' must involve 'systematic and discriminatory conduct' subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of 'persecution' that an individual be the victim of a series of acts:

'A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention.'

6. 'Systematic conduct' is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute 'persecution' for the purposes of the Convention, the threat of harm to a person:

'need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution' (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

7. Thirdly, the applicant must fear persecution 'for reasons of race, religion, nationality, membership of a particular social group or political opinion'. Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless 'that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution'. It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
8. Fourthly, the applicant must have a 'well-founded' fear of persecution for one of the Convention reasons. Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

'There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.'

9. A fear will be 'well-founded' if there is a 'real chance' that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429. A fear will be 'well-founded' in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

'no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.' (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

Ministerial direction

10. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - 'PAM3: Refugee and humanitarian - Complementary Protection Guidelines' and 'PAM3: Refugee and humanitarian - Refugee Law Guidelines' - and any country information assessment 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.

Credibility

11. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451, 'in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for'. However this should not lead to 'an uncritical acceptance of any and all allegations made by suppliants'. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

'Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another' (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281-282)

12. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

'in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.'

13. If, however, the Tribunal has 'no real doubt' that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O'Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a 'positive state of disbelief' before making an adverse credibility assessment in a refugee case.

^[1] DFAT Country Information Report - Turkey, 5 September 2016, paragraph 4.9.
^[2] See folio 77 of the Tribunal's file 1609600 .
^[3] DFAT Country Information Report - Turkey, 5 September 2016, paragraphs 4.9, 4.19.
^[4] US State Department, Country Reports on Human Rights Practices for 2015 in relation to Turkey, Section 2.b, Freedom of Assembly.
^[5] DFAT Country Information Report - Turkey, 5 September 2016, paragraphs 4.8-4.10.
^[6] See folios 78-79 of the Tribunal's file 1609600 .
^[7] See DFAT Country Information Report - Turkey, 5 September 2016, paragraph 4.20.
^[8] See DFAT Country Information Report - Turkey, 5 September 2016, paragraphs 4.12-4.14.
^[9] See Michael Ivers and Brenda Campbell, 'Indiscriminate Use of Force: Violence in South-east Turkey - Fact-Finding Mission Report', Kurdish Human Rights Project and Bar Human Rights Committee of England and Wales, October 2006, downloaded from http://www.khrp.org/khrp-news/human-rights-documents/doc_details/94-indiscriminate-use-of-force-violence-in-southeast-turkey-fact-finding-mission-report.html, accessed 30 September 2016, pages 18-20.
^[10] See Halil M Karaveli, 'Is the AKP That "Vanquished" the Military Caught in the Trap of Militarism?', Turkey Analyst, vol. 4, no. 10, 16 May 2011, downloaded from https://turkeyanalyst.org/publications/ turkey-analyst-articles/item/261-is-the-akp-that-vanquished-the-military-caught-in-the-trap-of-militarism?.html, accessed 30 September 2016; Daren Butler, 'Kurdish strife clouds election mood in Turkey', Reuters, 5 May 2011, downloaded from http://news.trust.org//item/20110505144000-x2dyo?view=print, accessed 30 September 2016.
^[11] See [folios] of the Tribunal's file 1609600 .
^[12] DFAT Country Information Report - Turkey, 5 September 2016, paragraphs 4.13, 4.14, and 4.17.
^[13] Immigration and Refugee Board of Canada, 'Turkey: Situation and treatment of members of Kurdish political parties that have succeeded the People's Democracy Party (Halkin Demokrasi Partisi, HADEP), including the Peace and Democracy Party (Baris ve Demokrasi Partisi, BDP), and the Peoples' Democratic Party (Halklarin Demokratik Partisi, HDP); whether HADEP and other older acronyms are still in use (2011-2016)', 14 June 2016, TUR105537.E.
^[14] US State Department, Country Reports on Human Rights Practices for 2015 in relation to Turkey, Section 2.b, Freedom of Assembly.
^[15] See footnotes 13 and 14.
^[16] See Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35.