AGC19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1107

AGC19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1107 | Case summary | Zoe

[13]

(a) Firstly the Tribunal considered the Applicant's 'omission of claims related to Dev Sol from early evidence'.[7] The Tribunal considered the Applicant's oral statements at the Tribunal Hearing, written statement dated 18 December 2020, written statement dated 12 September 2018 and counsellor report dated 25 October 2022. Inconsistencies that may have had an adverse impact on the Tribunal's findings were put to the Applicant at the Tribunal Hearing pursuant to s 424A of the Act. The Tribunal could see no plausible reason why the brother's involvement in Dev Sol activities would not have been mentioned in the Applicant's earlier sources. The Tribunal was not persuaded that the omission of the important claims from those earlier sources was due to the interpretation process.

(b) Then the Tribunal turned to 'Evidence about how the applicant discovered his brother's involvement in political activities'.[8] The discrepancy in the Applicant's evidence was put to the Applicant by letter on 5 September 2018 pursuant to s 424A. The Tribunal rejected the Applicant's response that the inconsistency was due to or based on the counsellor summarising what the Applicant told the counsellor.

(c) The Tribunal then assessed the 'Evidence about the death of the applicant's brother'.[9] The discrepancy in the evidence relating to the brother's death was put to the Applicant pursuant to s 424A by letter dated 5 September 2018. The Tribunal considered the Applicant's explanation but found his evidence about when his brother died to be inconsistent. The Tribunal commented that it could be willing to overlook inconsistency in giving precise dates for his brother's death, but considered that the Applicant can be reasonably expected to, at the least, remember the year this event occurred given its significance in the Applicant's own life in Türkiye.

(d) Fourthly the Tribunal turned to the 'Evidence about harm suffered by the applicant from police in Turkey'.[10] The Tribunal outlined the evidence before it and by letter dated 5 September 2018 put to the Applicant the discrepancies relating to his involvement with the police. The Tribunal rejected the Applicant's response and commented that if the Applicant had truly been arrested, detained overnight and maltreated as he claimed, it can reasonably expect the Applicant to give that evidence consistently when afforded the opportunity to say what difficulties he had with the police in Türkiye. Further the Tribunal found that the examples discussed demonstrated that the Applicant failed to provide consistent evidence and he had not provided an adequate explanation.

(e) The Tribunal then considered the 'Evidence about harm suffered by the applicant from police in Northern Cyprus'.[11] The Tribunal outlined the Applicant's contrasting evidence in relation to his claims. The Tribunal, having put the Applicant on notice pursuant to s 424A, concluded that the Applicant's evidence about the harm he suffered from the police in Northern Cyprus was irreconcilable and strikingly inconsistent, and he had not provided any adequate explanation for the inconsistencies. The Tribunal commented that, without expecting precise dates, it can reasonably expect the Applicant to give a broadly consistent account as to on how many occasions he was arrested, maltreated or questioned by police and the reasons for that.

(f) The Tribunal then assessed the 'Evidence about departure from Istanbul airport in 2000'.[12] The Tribunal outlined the Applicant's contrasting evidence and considered the Applicant's response to the s 424A letter. The Tribunal found that if the events did truly occur as claimed, it was inconceivable that the Applicant would not relate them to the Delegate when given ample opportunity to do that.

(g) The Tribunal then engaged in an overall analysis of the 'Cumulative concerns over certain aspects of the applicant's account of events from 1993 to 2000'.[13] The Tribunal found: the Applicant's evidence regarding his passport improbable; that the Applicant's responses regarding seeking sanctuary in Turkish Northern Cyprus did not alleviate concerns; the claims regarding adverse interest unconvincing; and the account of being able to travel out of Türkiye through the airport in Istanbul fanciful. The Tribunal found that the cumulative effect of its concerns considered together lead the Tribunal to consider that the Applicant had not been truthful with respect to his circumstances both in Türkiye and Northern Cyprus.

(h) The Tribunal turned to the 'Evidence about the treatment of the applicant's family in Northern Cyprus once he came to Australia'.[14] The Tribunal discussed the discrepancies and response of the Applicant, and determined that there was no excuse for the inconceivable inconsistency in the Applicant's evidence about a very significant matter in his life, namely, whether or not after he came to Australia Turkish authorities detained one of his children.

(i) The Tribunal then addressed 'the applicant's inaction with respect to important evidence'.[15] The Tribunal was not persuaded by the Applicant's explanations regarding when documents were produced and it could not see why the Applicant would initially choose not to make enquiries of someone who could obtain documents from Turkish authorities and why he should only do that so many years later in 2014. The Tribunal's concerns extended to documents submitted just prior to the Tribunal Hearing from the Turkish consulate purportedly relating to a court case against the Applicant in Türkiye. The Tribunal found the Applicant's evidence about these particular documents to be "most unconvincing". The Tribunal then discussed the Applicant's untruthfulness in another important claim regarding his daughter's difficulties with Turkish authorities. The Tribunal found that the Applicant had not explained why he made no mention of these important events until the Tribunal Hearing and found that the late mention of these claims reflected a lack of credibility in the Applicant's evidence.

[14]

Finally the Tribunal set out its 'Conclusion on credibility'.[16] The Tribunal did not consider the Applicant to be a credible witness. The Tribunal found that the Applicant's evidence regarding his discovery of his brother's political activism, the death of his brother and the harm he had suffered by police was inconsistent and/or inadequately explained without proper reason. The Tribunal had cumulative concerns about the Applicant's account of events from 1993 to 2000 and gave weight to his inaction with respect to important evidence. The Tribunal took into consideration oral evidence of the Applicant's daughter which was given at the Tribunal Hearing. The Tribunal found that its substantial concerns were not overcome by her evidence or the documents purporting to corroborate the Applicant's claims. The Tribunal determined that the Applicant was discredited as a witness and it would not give weight to the documents submitted by the Applicant relating to the death of his brother, his dealings with Turkish authorities, court cases in Türkiye involving the Applicant from July 2014 to April 2018 and country information regarding document fraud in Türkiye. The Tribunal concluded that it disbelieved the Applicant's claims that he became of adverse interest to the Turkish authorities and that there was no credible evidence before the Tribunal as to why the Applicant left Turkey and went to live in Northern Cyprus and then left Northern Cyprus for Australia.
The Tribunal accepted as credible no more than: the Applicant was an Alevi Kurd who left Türkiye in the early 1990s and the Applicant went to live in Northern Cyprus until 2000 when he then came to Australia.[17]
The Tribunal then assessed the risk of the Applicant suffering significant harm because he is an Alevi Kurd who has been absent from Türkiye for 18 years and will return there as someone who sought Asylum in Australia.[18]
The Tribunal discussed available country information about the risk of Kurds and Alevis suffering significant harm, particularly by reference to the DFAT Report and another DFAT Country Information Report Turkey dated 5 September 2016.[19] In light of the country information the Tribunal inferred that the risk of suffering significant harm as an Alevi Kurd both singularly and cumulatively was remote and that there was no credible evidence that the Applicant was of adverse interest to the Turkish government. The Tribunal also, having considered the country information and responses of the Applicant to that country information, found that the risk of harm to the Applicant as a failed asylum seeker, a deportee to Türkiye, having a prolonged absence from Türkiye and a victim of a terrorist attack was remote.[20] The Tribunal discussed the country information with the Applicant and did not consider his responses to alter the view of the Tribunal. The Tribunal remained of the view that "the risk of the applicant suffering significant harm in Turkey because he is an Alevi Kurd who will return there after seeking asylum in Australia and having been away for 18 years, is remote".
The Tribunal then addressed the submission that the Tribunal should consider the "humanitarian" aspects of the case.[21] The Tribunal found that distress does not amount to real risk and accepted that the Applicant would have to re-establish his life in Türkiye at his age and after a lengthy absence. The Tribunal explored the grounds on which it was asserted that the Applicant would suffer significant harm and found that that risk is remote.
The Tribunal then considered and did not accept the "new ground" that the Applicant was a Kurdish political activist because of his activities in Australia with the KDCC.[22] The Tribunal nevertheless considered the risk of the Applicant suffering significant harm because of the activities undertaken in Australia to be remote.
The Tribunal determined that there were not substantial grounds to conclude that there was a real risk the Applicant would suffer significant harm if he was removed from Australia to Türkiye.[23]
Under 'CONCLUSIONS' the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).[24] The Tribunal affirmed the Delegate's Decision.[25]

[27]

This ground was aptly described in the Applicant's written submissions as "Failure to consider membership of KDCC". It was the Applicant's case that he raised a claim that he would be targeted on his return to Türkiye because of his membership of the KDCC in Victoria. It was submitted that this claim was not considered by the Tribunal in its own right.
It was alleged that the Tribunal did not engage with the claim made by the Applicant and it was evident from the Tribunal's reasons at paragraph [76] that it had only considered the Applicant's personal profile namely that the Applicant was not an activist or a leader of prominence who has undertaken activities in Australia and therefore would not have a personal profile that would draw adverse attention. It was submitted that was no express assessment of whether the Applicant's membership of the KDCC would result in bringing the Applicant to the attention of the authorities upon return to Türkiye. It was also suggested that failure to consider the membership claim could be inferred by the Tribunal's failure to refer to [5.28] of the DFAT Report in paragraphs [72] to [76] of its reasons as it would be expected that a reference would have been made to this section of the DFAT Report if the membership claim had been considered. It was also submitted by the Applicant that the absence of the word membership in paragraphs [72] and [73] is significant as participation in activities may not be known but that the membership of the KDCC may be and it is the membership itself that may be a reason to give rise to a risk of harm.
The Minister in response to the Applicant's argument on the membership ground submitted that the Applicant's argument is met in the Tribunal's Decision at paragraphs [72] and [73] and that the proper conclusion to reach is that the Applicant's membership of the KDCC was subsumed within the Tribunal's findings that the risk of harm as a result of his activities with the KDCC was remote. It was further submitted that the particular findings regarding the Applicant's membership of the KDCC had been subsumed into the findings of greater generality.[26] Particular reference was made to the findings in paragraph [75] of the Tribunal's Decision which rejects the Applicant's claim that he was a political activist and the first sentence in paragraph [76]: "The Tribunal has nevertheless assessed the risk of the Applicant suffering significant harm because of the activities undertaken here but finds that risk remote".
With respect to the Applicant's contention regarding an expectation that there would be a specific reference to paragraph [5.28] of the DFAT Report in the Tribunal's Decision at paragraphs [72] to [76] it was submitted that such a contention was misconceived as the Tribunal stated at paragraph [72] that "the representative refers to various parts of the DFAT assessment that relate to how the Turkish government treats political activists including pro-Kurdish political activists" and the Tribunal referred to paragraph [5.28] of the DFAT Report.
Taking a commonsense and realistic approach to understanding the reasons of the Tribunal as a whole[27] I accept the Minister's argument that the findings on the Applicant's membership of the KDCC has been subsumed into findings of greater generality as evidenced in the opening sentence of paragraph [76] of the Tribunal's Decision. I also accept that that there was no requirement to specifically use the word 'membership' in circumstances that the activities referred to in paragraph [72] refer to the activities of the KDCC or to make specific reference to [5.28] of the DFAT Report where it has been referred to in the footnotes of the Tribunal's Decision. I cannot draw an inference that there has been a failure to consider the DFAT Report as a whole or [5.28] in particular[28]. In any event the weight or persuasive quality of the DFAT Report is a matter for the Tribunal.[29]
The Applicant has not identified a jurisdictional error. Ground 1 must be dismissed.

[28]

The Applicant conceded at the Hearing that the Minister's characterisation of these grounds was correct, namely that they allege a single failure to consider cumulatively the elements of the Applicant's profile put two (2) different ways. It was also accepted that the Tribunal considered the imputed profile claim at paragraph [76] and whether the Applicant had a profile such that he would be at risk.
It was also contended that at paragraphs [61] to [63] the Tribunal assessed whether the Applicant faced any risk as a failed asylum seeker, being deported, who had been outside their home country for an extended period. The Tribunal explicitly rejected that Applicant would be perceived as a pro-Kurdish activist and found that the risk of harm was remote. It was said that the Tribunal did not rule out some risk of the Applicant being targeted on return and as such the Tribunal needed to consider the profile circumstances of the Applicant cumulatively with the Applicant's political activity in Australia.
The Applicant asserted that the Tribunal at paragraph [76] only examined if the Applicant's activities gave him a public profile or made him a prominent activist and did not consider whether these factors together would lead to the Applicant being suspected of being a Kurdish political activist or whether and subsequently questioned or harmed upon his return. It was further submitted that there was no reference in paragraphs [72] to [76] of the Tribunal's Decision to these additional circumstances the Applicant claimed placed him at risk on return that had been referred to at paragraphs [61] and [62] and as such it should be inferred that the Tribunal did not engage in a cumulative consideration of the claims.
With respect to Ground 3 the Applicant contended that the Tribunal did not consider at paragraph [76] whether the Applicant would be imputed to be an activist due to his membership of the KDCC and its related activities.
The Applicant's position with respect to Grounds 2 and 3 is that Tribunal's focus was on the present day profile and consequential risk and not on the Applicant's future profile that is when he arrived back in Türkiye as a deportee, a failed asylum seeker and a person with a history of some activism.
The Minister reiterated the submission that the only way to read paragraph [76] is that there is within it a consideration of the imputed claims. It was further put to me that a commonsense reading of the Tribunal's Decision is that the Tribunal did in fact engage in a cumulative consideration of the Applicant's claims. The basis for this conclusion is that in paragraphs [70] and [71] of its reasons the Tribunal refers back to its previous findings dealing with the new claim and these paragraphs must be read with paragraph [76]. Further the Minister submitted that the Tribunal's reference to how Turkish nationals are treated on return to Türkiye in paragraph [76] and the use of the words in that paragraph "on any ground including" is an aggregation of its earlier findings with the Applicant's new claim concerning the Applicant's activities in Australia resulting in a finding that there is not more than a remote risk of harm.
I agree with the submissions of the Minister on a common sense and realistic approach to reading the decision of the Tribunal as a whole. The position of the Applicant that the Tribunal failed to consider the Applicant's claims cumulatively or that the Tribunal did not consider the new claim or imputed claim is unsustainable because paragraphs [70] and [71] must be read together with paragraph [76]. These paragraphs read together show the consideration by the Tribunal of the Applicant's claims not only separately but cumulatively. No jurisdictional error has been identified in either Ground 2 or Ground 3. Grounds 2 and 3 must be dismissed.

[29]

It is alleged on behalf of the Applicant that the Tribunal failed to apply the "real risk test" correctly as it applied a higher burden of proof on the Applicant to establish risk. The allegation made by the Applicant is steeped in an analysis of the Tribunal's findings in paragraph [76] of the Tribunal's Decision.
It was submitted that firstly the Tribunal noted the Applicant's submission that that Kurdish leaders and activists were at risk of harm on return to Türkiye and found that the Applicant was neither a leader or a prominent activist. It was submitted that the Tribunal's reasons do not, in light of the DFAT Report at paragraphs [3.48] and [5.28], address why a person with the Applicant's profile that is a low level activist who is a member of the KDCC would not be at risk on return to Türkiye.
Secondly, it was submitted that the Tribunal's finding that the people targeted by Turkish authorities on their return were of interest for reasons other than their activities abroad did not rule out that activities abroad alone could create a risk or that those with a lower profile did not face a real chance of being targeted.
Thirdly, reliance was placed on the fact that the Tribunal noted submissions that the Turkish Consulate in Australia monitors the Kurdish diaspora but made a finding that the Applicant did not have a profile with Turkish authorities based on the Applicant's activities in Australia. It was argued that this resulted in the Tribunal imposing a burden of proof on the Applicant that was higher than the real risk test. It was submitted on behalf of the Applicant that the Applicant did not need to establish that the Turkish authorities had formed an adverse view of him but rather the Applicant merely need to establish that there was a real possibility his activities were known and he would be detained and harmed due to this on his return.
In conclusion the Applicant submitted that the analysis of paragraph [76] shows that the Tribunal's Decision did not rule out the genuine possibility that as an active member of the Kurdish diaspora the Applicant could face detention and harm upon returning to Türkiye and that the Tribunal did not assess or speculate on what might happen to someone with the Applicant's particular profile on his return to Türkiye.
The Applicant conceded in reply submissions that country information is open to interpretation What was not accepted was that the only interpretation of the country information was that one is only at risk of harm if one has been an activist in Türkiye. It was submitted that any person who is considered a 'low level' activist because of actions inside or outside of Türkiye is at risk once they are inside Türkiye and that the Tribunal did not give any real explanation in that regard at paragraph [76] of the Tribunal's Decision.
The Minister submitted that the opening sentence of paragraph [76] of the Tribunal's Decision identifies the correct test to be applied but accepted that should the reasoning disclose a different position this alone will not be enough to show its correct application.
It was the Minister's position that on a common sense reading of the Tribunal's Decision and in particular [76] the Tribunal was not satisfied that the Applicant's activities in Australia would result in him being singled out by the Turkish authorities as a person of interest. The Minister identified the 'general comment' by the Tribunal that it is "highly likely that how Turkish nationals are treated on return to Türkiye because of activities undertaken abroad depends on the particular circumstances of the nationals concerned" and submitted that the Tribunal's conclusion of a remote risk of harm was not made out by a standard that such a risk is likely.
Further it was submitted that the Tribunal accepted that the Applicant had been involved in KDCC activities. The Tribunal did not accept that the Applicant was an activist. Further the Tribunal acknowledged that the Turkish Consulate would be aware of those who participated in protests outside its office but found that there was no credible evidence that the Turkish authorities would take an adverse interest in the Applicant. It was submitted the Tribunal made a conclusion open to it being that the Applicant's activities in Australia were not sufficient to create a real risk of being singled out as a person of adverse interest. It was submitted that a commonsense reading of the Tribunal's Decision the Tribunal's reference to the Applicant not being an activist of prominence is that the Applicant's participation in pro-Kurdish events in Australia only gave rise to a remote risk of significant harm in circumstances where it was found that the Applicant was not of adverse interest to Turkish authorities and as such there was no misapplication of the real risk test.
It was also submitted that although the country information contained a reference to low level activists it was open to the Tribunal to find that in the absence of any activism in Türkiye and only mere participation in events in Australia the Applicant would not be singled out as a person of adverse interest and as a result when it came to considering whether the Applicant would face harm as a failed asylum seeker he was not a person who would be put in a category of the people who would face harm.
The Tribunal correctly identified the test to be applied and did not in my view misapply or fail to properly apply the real risk test. There is nothing in the Tribunal's Decision that would indicate to me that the Tribunal failed to assess the risk was of significant harm on return on the basis that the risk is real rather than remote or farfetched or fanciful.[30] I accept the submissions of the Minister. On a common sense reading of the Tribunal's Decision and in particular paragraph [76] the Tribunal's findings were open to it.
No jurisdictional error has been identified with respect to Ground 4. Ground 4 must be dismissed.

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Judgment (48 paragraphs)

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Legislation Cited (1)

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