Last Updated: Monday, 23 October 2017, 10:48 GMT

AATA Case No. 1502525

Publisher Australia: Administrative Appeals Tribunal
Publication Date 30 October 2016
Citation / Document Symbol [2016] AATA 4612 (30 October 2016)
Cite as AATA Case No. 1502525, [2016] AATA 4612 (30 October 2016), Australia: Administrative Appeals Tribunal, 30 October 2016, available at: http://www.refworld.org/cases,AUS_AAT,592d86b04.html [accessed 23 October 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

1502525 (Refugee) [2016] AATA 4612 (30 October 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1502525

COUNTRY OF REFERENCE: Turkey

MEMBER: R. C. Titterton

DATE: 30 October 2016

PLACE OF DECISION: Sydney

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

Statement made on 30 October 2016 at 4:07pm

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
  2. The applicant, who claims to be a citizen of Turkey, is [age] years old. She applied for the visa [in] August 2014 and the delegate refused to grant the visa [in] February 2015.
  3. The applicant's parents [Mr A] and [Mrs A] both appeared before the Tribunal on 25 July 2016 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
  2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
  3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.

  1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
  2. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - 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.
  3. The issues in this review are whether the applicant has a well-founded fear of being persecuted in Turkey for one or more of the five reasons set out in the Refugees' Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Turkey, there is a real risk that she will suffer significant harm.

EVIDENCE

  1. The materials before the Tribunal included the following.
  2. First, the applicant's application for a protection visa dated [in] April 2014. The application was signed by [Mrs A]. The application relevantly states that the applicant was born in Australia on [date] to his parents. In summary, the application states that [Mr A] experienced serious harm from Turkish authorities because of his Kurdish ethnicity and his involvement in pro-Kurdish political activities.
  3. Secondly, the decision of the delegate [in] February 2015. The applicant provided the Tribunal with a copy of the decision. The delegate refused the application, as [Mr A's] claims for protection had previously been refused by the Department, and affirmed on review by the Tribunal.
  4. Thirdly, country information provided by [Mrs A] , including a copy of the Human Rights Watch report for Turkey dated January 2016; and two articles: Turkey and Justifiably Killed 130 People in Kurdish South-East (22 July 2016); and Turkey Wages War on Its Kurdish Population (February 2016).
  5. Fourthly, a USB was provided to the Tribunal at the hearing the USB contains five videos titled and dated as follows: Roboski: Chronicle of a massacre foretold (28 December 2011); Turkey Crimes against Kurds; Turkey Sends Tanks and Troops Raiding Civilians Houses' in Kurdish Areas; Turkish Police and Capture Soldier Dialogue; Turkish Police Killing Kurdish Children and Women. [Mrs A] told the Tribunal that the videos on the USB demonstrate what was happening in Turkey at the moment.

CONSIDERATION AND FINDINGS

Is the applicant a citizen of Turkey?

  1. The applicant was born in Australia of Turkish parents. The Tribunal understands that Turkish nationality law is based primarily on the principle of jus sanguinis. Children who are born to a Turkish mother or a Turkish father (in or out of marriage) are Turkish citizens from birth.[1] Accordingly, the Tribunal is satisfied that the applicant is a citizen of Turkey and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purpose of his complementary protection claims, is Turkey.

Does the applicant have the right to enter and reside in any other country?

  1. There is nothing in the evidence to suggest that the applicant has a right to enter or reside in any other country other than Turkey. Therefore, the Tribunal finds that the applicant is not excluded from Australia's protection by s 36(3) of the Act as it has found that the applicant is a citizen of Turkey.

Does the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out in the Refugees' Convention?

  1. Various decisions of the Federal Court of Australia[2] have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims made. Usually this involves an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. This is not possible in this application, and the Tribunal must assess the applicant's claim by reference to the evidence given by each of his parents and the documents provided by them to the Tribunal. As noted above, it is claimed on behalf of the applicant that he has a well-founded fear of being persecuted in Turkey for the following reasons.
  2. The applicant's mother gave evidence in spontaneous and straightforward manner whose evidence the Tribunal accepts and finds that:
    • the applicant was born on [date] in Australia. [Mrs A] was born in [year] and is [age] years old. She married [Mr A] [in] July 2009. [Mr A] came to Australia [in] September 2008 on a [temporary] [Visa]. [Mrs A] joined him in 2010. An application of her husband for protection was refused by the Department, which decision was affirmed on review by the Tribunal. When [Mr A] subsequently is sought Ministerial I intervention, this too was refused.
    • [Mrs A] was a secondary applicant to that application. Her parents live in Istanbul, his father's parents in Urfa.[3] The applicant mother said that if the family returned to Turkey, they would have to live with her husband's family in Urfa, but they would not be safe there.
  3. [Mrs A] said that because of her husband's political activities, including protests, they would not be safe. She said that he had been detained in March 2010 for about 18 to 20 hours and was released without charge. She said that he was beaten during this time. The Tribunal asked the opponents on how many times [Mr A] had been beaten. She said that she could not say. She could say that he had been detained a number of times and that on those occasions he had been beaten. But she only personally witnessed the one beating.
  4. [Mrs A] said that [Mr A] was involved with the People's Democratic Party, and was a member of that party. She did not know for how long he had been a member.
  5. The applicant's father ([Mr A]) also appeared at the hearing. He gave evidence consistent with his previous evidence to the Tribunal. He explained that he had been born in [year] was working in a [factory] in Turkey. He was a member of the Peace and Democracy Party (BDP) since 2007, and actively participated it in its activities. He said that he was detained many times, on the basis that he was helping the Kurdistan Workers' Party(PKK).[4] Hesaid that the last time he was detained in 2010 when he would participate in a protest. He was taken to police station detained for about 19 hours. He was beaten during this period, necessitating a visit to a clinic when he was released. He said this happened on three or four occasions. The Tribunal notes that the [Mr A] gave this evidence spontaneously and his account was persuasive and coherent. He insisted that he would continue to participate in pro PKK activities if he returned to Turkey. He said that he and his family would all be at risk because of these activities were he to return Pakistan. [Mr A] gave brief evidence of:
    • experiencing official and societal discrimination as occurred
    • his involvement in successive pro-Kurdish parties and receiving being harassed and mistreated
    • that he is a particular risk because he asserts his Kurdish identity, and that all authorities automatically impute Kurds with a pro-PKK stands
    • that were he to return to Turkey he would not suppress his Kurdish identity at work in his daily life, and that was highly likely that the police and military would impute to him a PKK affiliation for that reason alone.
  6. The Tribunal understand that, in a previous hearing,[5] he also presented:
    • evidence from BDP officials of his membership of that party
    • a letter from the Australian Kurdish Association (AKA) stating that their members have known the applicant for the past two years, and that he participated in volunteer activities. It then recited certain aspects of his claims.
    • a number of photographs taken in Australia, of his participation in pro-Kurdish political activities and support for Kurdish independence.
  7. The applicant also expressed concerns about the prospects for the peace process between the Turkish authorities and the Kurdish people, and more generally about the political and security situation.
  8. The Tribunal discussed all of these matters with [Mr A]. Broadly speaking the Tribunal found him to be a reliable witness who gave his responses in a spontaneous and believable fashion. While there were some aspects of the [Mr A]'s evidence which may be thought to have been exaggerated, which appears to be have been the assessment of the Tribunal on the previous occasion, the Tribunal is mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [191]:

... the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not for life.

  1. Accordingly, the Tribunal finds that [Mr A] has been active in pro-Kurdish political activities over a number of years in Turkey. The Tribunal finds that he is likely to continue those activities were he to return to Turkey, consistent with his activities supporting Kurdish independence in Australia.
  2. The Tribunal accepts that [Mr A] has a fear of persecution if he returns to Turkey. As the Tribunal explained to him at the hearing, the question is whether that fear is well-founded. The Tribunal understands the applicant to be advancing two bases on which he may be persecuted if he returns to Turkey. The first is on the grounds of her ethnicity as a Kurd. The second is on the basis of her father's political opinions and activities relating to Kurdish independence. The Tribunal explained to [Mr A] that the assessment of whether a fear is well-founded is based primarily on country information.
  3. The Tribunal notes that the hearing took place about 10 days after the attempted coup in Turkey of 15 July 2016 by a faction within the Turkish Armed Forces that called themselves the Peace at Home Council.[6] At the time the hearing, there was a reported "crackdown" by the Government and military. It has been suggested that immediately following the coup, over 300 people were killed, more than 2100 injured and that mass arrests followed with at least 40,000 people been detained, including at least 10,000 soldiers and 2,745 judges. Education staff were suspended and the licenses of some 21,000 teachers working at private institutions were revoked after the government alleged they were loyal to Fethullah Gulen.[7] Turkish President Erdopgan accused Gulen of being behind the coup, a claim Gulen denies, and accused the United States of harbouring him. On 28 September 2016, Turkish justice minister Bekir Bozdağ said 70,000 people had been processed and 32,000 were formally arrested.[8]
  4. According to author Michael Rubin,[9] President Erdoğan had himself to blame for the coup:[10]

"Following an increasingly Islamist agenda, Erdoğan had supposedly "dropped any pretense of governing for all Turks." After "fanning the flames" at the 2013 Gezi Park protests, he transformed the predominantly Kurdish-inhabited areas of southeastern Turkey "into a war zone reminiscent of the worst days of the 1980s." The biggest problem, according to Rubin, might have been Erdoğan's foreign policy, which managed to turn the initial "no problems with neighbors" doctrine into a situation where the country has problems with almost every neighbor and has even alienated some of its allies and friend.

  1. The Tribunal notes the following information in the most recent DFAT Country Report for Turkey dated 5 September 2016:

4.7 There are five areas of significant historical official discrimination against Kurds: the public expression of Kurdish identity; the use of Kurdish languages; detention and prosecution; the right to political representation; and public sector employment. The state's efforts to enforce these prohibitions and suppress dissent have, at times, included the widespread use of extra-judicial killings, torture and enforced disappearances. Discrimination against Kurds on the basis of their ethnicity as opposed to their political opinions (actual or imputed) is often difficult to distinguish. . . .

4.12 Between 2009 and 2011, the state detained nearly 8,000 mostly Kurdish people on the basis of their links to the PKK and the Union of Communities of Kurdistan (Turkish: Koma Civakên Kurdistan, KCK), the 'urban wing' of the PKK. Many of those arrested were charged on the basis of links to those groups alone, and without any evidence of material or other support for terrorism. Those detained included political leaders, activists, academics, journalists, lawyers and students. Many of these people remain in detention.

4.13 The renewed conflict with the PKK in 2015 has led to arrests of non-violent protestors and activists on terrorism charges, with some human rights groups claiming ill-treatment of detainees. Human Rights Watch has reported that investigations into officials of Kurdish political parties and activists, including mayors, have increased. . . .

4.17 Overall, DFAT assesses that the situation for Kurds has not improved since the 2014 DFAT Country Information Report. While Kurds' ability to express their Kurdish identity, use the Kurdish language, and achieve political representation have been maintained, they remain at risk of harassment through the legal system and of discrimination in public sector employment. In addition, the ongoing violence in the southeast disproportionately affects Kurds, given they are the majority in the region, and has resulted in a significant loss of civilian life. 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. Overall, DFAT assesses that these conditions represent a moderate level of official discrimination against Kurds.

4.20 Societal discrimination against Kurds is partly influenced by the changing nature of Government-PKK peace talks. Given the resumption of hostilities, societal attitudes towards Kurds are currently less positive. Some non-Kurds believer that all Kurds are associated with the PKK, despite the fact that many Kurds are supporters of the current Government and want the conflict to end. On this basis, DFAT assesses that there is, at present, a moderate level of societal discrimination against Kurds. However, this varies across Turkey depending on proximity to the conflict or the number of Kurds present in a particular location.

(emphasis added)

  1. The Human Rights Watch Country Summary for Turkey of January 2016 states:

The environment for human rights in Turkey deteriorated in 2015 with the breakdown of the Kurdish peace process, a sharp escalation of violence in the southeast, and a crackdown on media and political opponents of the ruling Justice and Development Party (AKP).

There were two general elections in 2015. In the June 7 election, the AKP lost its overall majority polling at 41 percent, while the left-leaning pro-Kurdish Peoples' Democracy Party (HDP) polled 13 percent, for the first time passing the 10 percent threshold for entering parliament. Failure among the four main political parties to agree the formation of a coalition government precipitated a second general election on November 1, which the AKP won with 49 percent. The run-up to the November election was marked with violence, including an October 10 double suicide bombing in Ankara by individuals linked to the armed extremist group Islamic State (also known as ISIS). The bombing was the worst single attack in Turkey's modern history, killing 102 people. . . .

The most serious escalation of violence followed the June general election. The government held ISIS responsible for a July 20 suicide bombing that killed 32 students and activists from Turkey who had traveled to the southeast town of Suruç to join efforts to rebuild Kobani. The PKK blamed Turkish authorities for the bombing, and local PKK associates killed two police officers in nearby Ceylanpınar. In response, the Turkish air force repeatedly bombed PKK camps in northern Iraq and later in Turkey. The PKK countered with a series of deadly attacks on police and army conveys.

In early September, Turkish security forces placed the southeast town of Cizre under blanket curfew for eight days to conduct a military operation against the PKK's youth wing, which reportedly had sealed off three neighborhoods. The government estimated that 40-42 militants were killed in the operation; the Diyarbakır Bar Association reported 21 civilians dead, 16 from firearm injuries. The authorities have not made the circumstances of the deaths public at time of writing, fueling concerns that they continue to be unwilling to ensure effective investigations and criminal accountability for alleged security force abuses. During further curfews and military operations in towns with neighborhoods sealed off by the PKK youth wing-including Silvan, Nusaybin, and Diyarbakir's Sur district-civilian deaths were regularly reported by media and human rights organizations. There was a rise in credible reports of serious ill-treatment in detention.

On November 28, Tahir Elçi, a human rights lawyer and head of the Bar Association, was shot dead in Diyarbakır. The circumstances of his killing were under investigation at time of writing; it followed an attack on the police by individuals reported to be members of the PKK youth wing in which two police officers died and several police officers opened fire in response.

Starting in July, authorities launched a new wave of investigations into hundreds of Kurdish political party officials and activists, including mayors, detaining many on terrorism charges, including in cases where the evidence consisted of non-violent political association and involvement in peaceful protests or press conferences.

Despite thousands of killings and enforced disappearances of Kurds by security forces in the 1990s, only a handful of military personnel have faced criminal trial; in four cases in 2015, military personnel were acquitted, and in no case convicted. Turkey's 20-year statute of limitations on the prosecution of unlawful killings remains a major obstacle to justice.

  1. This information was echoed in the article Turkey Unjustifiably Killed 130 People in Kurdish South-East.[11]
  2. A further article, dated February 2016, Turkey Wages War on Its Kurdish Population, states that Turkey is conducting the greatest displacement of Kurds since the 1990s.[12] That article states in part:

"The police and military are using every kind of violence against the Kurds. They are using tanks and heavy armoured vehicles. They have flattened houses, historical places, mosques. They use helicopters and technological weapons, night vision binoculars and drones. They don't let families get to the bodies of youths who were killed. Corpses remain on the streets for weeks. . . .

The recent attacks on Kurdish cities have resulted in mass displacement, as people flee to escape the violence. Ayboğa told us that in Amed, around 50,000 people have evacuated their houses. "Together with the other cities in North Kurdistan, up to half a million people have had to leave," he stated. . . .

Summing up the situation across Turkey's Kurdish cities Ayboğa told us: "The human tragedy is deepening step by step without any serious critics from Turkish society and the western allies, which makes the Kurds - always seeking for a real peace - more disappointed. However, after some uncertainty, nowadays the majority of Kurds stand behind the resistance in more than 10 cities against Turkish military occupation and systematic massacres."

In Farqîn the barricades have since been destroyed, but the residents of the city still believe that they are autonomous. Zuhal Tekiner, the co-Mayor of Farqîn, told us in November 2015: "We believe we will achieve autonomy. We believe that we can change things. When we struggle here we believe that all of Kurdistan is with us. They said they wanted to erase us from the map. Now we will draw the map again."

Mass Displacement

The recent attacks on Kurdish cities have resulted in mass displacement, as people flee to escape the violence. Ayboğa told us that in Amed, around 50,000 people have evacuated their houses. "Together with the other cities in North Kurdistan, up to half a million people have had to leave," he stated.

  1. The Tribunal notes that the 2015 US Department of State Report for Turkey (written pre-coup but updated on 18 April and 14 June 2016), states:

During the second half of the year, the Kurdistan Workers' Party (PKK) terrorist organization resumed conflict with government security forces after a two-year hiatus during which the parties had participated in a peace process. Turkish authorities attributed the breakdown to a series of violent PKK attacks on security forces, commencing with the killing of two police officers by PKK militants in the city of Sanliurfa, while the PKK held the Turkish state responsible for complicity in a suicide bomb attack that killed 33 socialist activists in the border town of Suruc. The PKK attacked security installations, planted improvised explosive devices, and in some neighborhoods, erected barriers and dug trenches to wage urban warfare, claiming the lives of more than 170 security personnel as of December 1. Security forces responded with ground and air operations against PKK targets both in Turkey and in Iraq. During clashes with PKK militants in urban areas, the government periodically imposed curfews, some lasting for weeks, to facilitate security operations. Dozens of civilians were killed and injured.

The most significant human rights problems during the year were:

1. Government interference with freedom of expression: Multiple provisions in the law created the opportunity for the government to restrict freedom of expression, the press, and the internet. Government pressure on the media continued. As of November authorities had arrested an estimated 30 journalists, most charged under antiterror laws or for alleged association with an illegal organization. The government also exerted pressure on the media through security force raids on media companies; confiscation of publications with allegedly objectionable material; criminal investigations of journalists and editors for alleged terrorism links or for insulting the president and other senior government officials; reprisals against the business interests of owners of some media conglomerates; fines; and internet blocking. At least one journalist was physically attacked and injured in the wake of threats incited by a progovernment member of parliament. Self-censorship was common amid a prevailing fear that criticizing the government could prompt reprisals. Pressure on Kurdish-language and opposition media outlets in the Southeast reduced vulnerable populations' access to information about the conflict with the PKK. A number of media outlets affiliated with the Fethullah Gulen movement were dropped from digital media platforms (cable providers) and five outlets were taken under the control of government-appointed trustees. Representatives of Gulenist and some liberal media outlets were denied access to official events and in some cases, denied press accreditation.

2. Impunity and weak administration of justice: Inconsistent application of the law and the appearance of overly broad application of antiterror laws remained problems. Wide leeway granted to prosecutors and judges contributed to politically motivated investigations and court verdicts that were not consistent with the law or with rulings in similar cases. Authorities applied the broad antiterror laws extensively with little transparency to arrest opposition political party members and individuals accused of association with the PKK or the Fethullah Gulen movement. Authorities continued to make arbitrary arrests, hold detainees for lengthy and indefinite periods, and conduct extended trials. The government also indicted six judges and prosecutors involved in investigating alleged corruption of high-level government officials, a move interpreted as an attempt by the executive branch to intimidate members of the judiciary.

3. Inadequate protection of civilians: In the renewed conflict with the PKK in the second half of the year, the government did not sufficiently protect vulnerable populations, with the result that both PKK fighters and, at times, government security forces reportedly killed and injured civilians. Dozens of civilians, including at least 20 children, reportedly were killed in clashes between security forces and the PKK. Medical workers, educators, and other officials reported intimidation and threats coming from both the government and PKK that reduced their ability to fulfill their civil roles. Restrictive curfews in a number of areas, which forced residents to remain indoors for days, reportedly resulted in inhumane conditions and deprived thousands of persons of access to food, shelter, and medical care for periods regularly exceeding a week.

(Emphasis added)

Conclusion

  1. As noted, the Tribunal accepts that [Mr A] supported and continues to support Kurdish political parties in Turkey, that he attended rallies and demonstrations in support of Kurdish independence, and that he suffered serious harm, including detention and beatings, as claimed.
  2. The Tribunal accepts that if [Mr A] 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. The Tribunal accepts 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 the Tribunal has accepted has occurred in the past.
  3. The Tribunal has above noted the advice of DFAT that overall it assesses her that the situation for Kurds has not improved since the 2014 DFAT Country Information Report. The Tribunal has also notes that 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. According to the Human Rights Foundation, human rights organisations remained critical of the violent police response to demonstrations and police use of tear gas.
  4. Having regard to the independent evidence before it the Tribunal finds that, if [Mr A] returns to Turkey and maintains his involvement in Kurdish political parties and in Kurdish political and cultural activities, as it has 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 political protests. The Tribunal finds that the persecution which [Mr A] fears involves 'serious harm' as required by s 91R(1)(b) of the Act in that it involves a threat to his liberty or significant physical harassment or ill-treatment. The Tribunal finds that cumulative reasons of his Kurdish ethnicity and his political opinion in relation to Kurdish independence is the essential and significant reason for the persecution which he fears, as required by s 91R(1)(a) of the Act.
  5. The Tribunal considers that the persecution which [Mr A] fears involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason. Since ultimately the Turkish Government is responsible for the persecution which [Mr A] fears, the Tribunal accepts 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.
  6. The Tribunal in this context notes that while [Mr A] said he would not be safe anywhere, and did not nominate any place as a place for relocation, [Mrs A] had indicated that she assumed that she would go to live with [Mr A]'s family in Urfa. The Tribunal notes that the most recent US Department of State report refers to the killing of two police officers in that city. The Tribunal further notes that even in Istanbul, where [Mr A] had last lived before coming to Australia, the US State Department 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.
  7. Having accepted that if [Mr A] 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, the Tribunal also finds that there is a real chance that the applicant will suffer persecution involving serious harm for reasons of her father's political opinion and because of the family's Kurdish ethnicity. Specifically, the Tribunal finds that the persecution of her father amounts to cruel or inhuman punishment to the applicant.

Conclusion

  1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

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






R. C. Titterton
Member


[1] https://en.wikipedia.org/wiki/Turkish_nationality_law
[2] See for instance Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437; Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347 and Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547.
[3] Also known as Sanliurfa
[4] The Kurdistan Workers' Party or PKK (Kurdish: Partiya Karkerên Kurdistanê‎) is a left-wing organization based in Turkey and Iraq. Since 1984 the PKK has waged an armed struggle against the Turkish state for cultural and political rights and self-determination for the Kurds in Turkey, who comprise between 18% and 25% of the population and have been subjected to repression for decades: https://en.wikipedia.org/wiki/Kurdistan_Workers%27_Party
[5]
[6] https://en.wikipedia.org/wiki/2016_Turkish_coup_d%27%C3%A9tat_attempt
[7]https://en.wikipedia.org/wiki/2016_Turkish_coup_d%27%C3%A9tat_attempt
[8] Turkey: 32,000 jailed for links to group 'behind' coup". Al Jazeera. 28 September 2016.
[9] described as being from the "neoconservative" American Enterprise Institute
[10] https://en.wikipedia.org/wiki/2016_Turkish_coup_d%27%C3%A9tat_attempt
[11] http://aranews.net/2016/07/turkey-unjustifiably-killed-130-people-kurdish-southeast-human-rights-watch/
[12]

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