N98/23579 [1999] RRTA 1704 (11 August 1999)

A criterion for a protection visa is that at the time of the decision the decision maker is satisfied that the applicant is a person to whom 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: ss.5(1) and 36(2) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them.

Article 1A(2) of the Convention 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.

This definition has been considered by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225 and Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 575-6, and by the Federal Court in a number of cases, notably Ram v Minister for Immigration and Ethnic Affairs & Anor [1995] FCA 1333; (1995) 57 FCR 565. These cases have established the following general principles.

In Guo's case, the Court observed that the definition contains four key elements. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. In Applicant A, Gummow J at 284 referred to the primary meaning of the term "persecution" in ordinary usage:

The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; ...

Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage" (Chan at 388). Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution.

Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.

Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

The Applicant's claims are set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal.

According to the application forms for the Protection Visa, the Applicant was born in a town in the north of Turkey. He described his employment as "[a skilled labourer]" and stated that he entered Australia illegally. He is an Alevi by religion.

He was employed intermittently, over the last few years, before he left Turkey. He provided details of his employment record in recent years.

In response to a question as to where he had substantively resided in the past ten years, he provided a single address in the town in northern Turkey.

The Applicant stated that he left Turkey several years ago. His current Turkish passport was issued the month before he left, and was valid for two years. He stated that he had difficulties obtaining the passport, but that he left Turkey "legally" with the assistance of a political party to which he belonged. He has the passport with him.

The Applicant claimed that he left Turkey because he was a member of a leftist group called Dev Sol. He feared he would go to prison if he returned to Turkey because of his "opposite opinion". He did not state why he feared this might happen.

The Applicant made a brief written statement with his application for review. In it he stated that he feared being jailed and beaten in Turkey because he was involved in demonstrations and participated in Dev Sol activities in support of his friends. During one demonstration he was arrested and questioned by police as they thought he might have information about Dev Sol members. As the police could not get any information from him, they put him on their records and released him. Now he fears for his life as they will try to get him to talk again. He never saw the friends who were arrested with him again. As soon as possible he arranged to leave Turkey. He would try to get some proof and would forward it.

After the Tribunal wrote to him asking if he wished to give evidence at a hearing, a letter was received from a migration agent on his behalf. The agent advised that the Applicant had told him that the original application was completed by "his friend" and, as his English was poor at the time, he did not understand the process and believed his friend had not presented his case well.

It was stated that the Applicant is a supporter, not a member, of Dev Sol, now known as the DHKPC. He attended "many" of their demonstrations before escaping from Turkey. He and his friends were arrested and beaten by secret police on "a number of occasions" during these demonstrations. The Applicant has scars as a result of those beatings. The Applicant was close to one of his relative's who was a prominent Dev Sol member. His relative and several other members disappeared a few years ago. It was thought they were murdered and the incident made to look like an accident. The Applicant has a press clipping regarding this incident.

The Applicant claims that Dev Sol is a left wing revolutionary party which is trying to overthrow the government. Its main aim is to have a democratic society which gives equality and greater rights to its people and allows a better education to all. It was created in Ordu in 1981, after many problems with secret police who acted against Alevi Muslims over the years.

The Applicant requested that his friend (Witness A) be a witness at his hearing. He stated that Witness A was recently granted a protection visa. [The Tribunal is aware that this is incorrect]. The situation of the two was

very much the same. In fact they both escaped together and travelled to Australia... They... paid [a certain amount in] US dollars to [a person] for him to help them come to Australia. The passports they both travelled on were issued by paying a bribe to a Turkish government official. The passports although in their correct names, were fraudulently obtained, otherwise they may not have been issued with Turkish passports.

The Applicant also stated that he had deferred performing his military service in Turkey, but his family have now advised him that he has been called up again. If he returns to Turkey he will have to do a jail sentence for "a period of time" and then do his military service.

In response to the Applicant's request that Witness A give evidence at the Applicant's hearing, the Tribunal advised him that it had considered the request. Witness A had already given oral evidence to the Tribunal about his own departure from Turkey and arrival in Australia. The Applicant was told that some of that evidence may be discussed with him during his own hearing, but the Tribunal had decided there was no need to take further oral evidence from Witness A.

The Tribunal also wrote to the migration agent asking that the Applicant provide a detailed Statutory Declaration of his claims, as none had been received to date (the previous statement being written without important dates and other details). In a Statutory Declaration received 10 days later the Applicant added that he had become a Dev Sol supporter in the 1990's and had been heavily involved in demonstrations, handing out flyers about protest dates etc. He had been arrested "a number of times" by the "secret police", and had been "jailed, threatened and beaten" by them for supporting Dev Sol. He also claimed that Alevi Muslims are "persecuted constantly" in Turkey. He was often beaten by his teachers at school as a result and harassed constantly by other children and townspeople. He had to leave school at an early age for this reason.

A few weeks later, the Tribunal sent the Applicant a Notice under Section 424A of the Act, advising him of information about himself on which he would be invited to comment at an interview to be held immediately before the Tribunal hearing_._ The information sent to him was as follows:

Another applicant, [Witness A], has given evidence to the Tribunal that he did not know you before he met you... on the journey which brought you to Australia most recently. He has also given evidence that another person made the arrangements for him to travel...

This information is relevant because you have claimed that you knew [Witness A] before [coming to Australia] and that he made all the arrangements for you to obtain a passport and bribe [someone]. The inconsistency casts doubt on your own claim as to the circumstances in which you [came to Australia].

The Applicant subsequently submitted a Statutory Declaration in response to this. In it he stated that he had made an error in his previous Statutory Declaration. It was not Witness A who arranged his passport for him. It was arranged by friends and fellow Dev Sol supporters. He did not actually meet Witness A until arriving for his trip to Australia. He spoke with him "a few times by telephone" prior to their meeting. It was Witness A who made travel arrangements on his behalf. It was during their telephone conversations prior to meeting that the details were given to him. After meeting Witness A, immediately before to the journey, the Applicant paid him and amount in $US, which Witness A then gave to his contact.

The Tribunal advised the Applicant that, as he had responded in writing to the Notice under s.424A of the Act, it was proposed that he not be asked to repeat those comments orally. Instead the Tribunal proposed to discuss all his claims with him during the hearing. The Applicant agreed that he did not need an interview and that he had said "everything" in the Statutory Declaration.

The Tribunal asked the Applicant whose writing it was on his application forms for the Protection Visa. He stated that it was an Australian permanent resident. This person wrote what the Applicant told him, but may have made some errors. The Tribunal asked him what errors had been made, to his knowledge. He responded that he did not read or write English, but that he thought he had not specified that Dev Sol had changed their name.

The Tribunal asked why he had made no detailed written statement about his claims to the Department with his Protection Visa application during the months before it was refused. He responded that he had had little information or money, and had wanted an interview.

The Tribunal asked the Applicant when he had last lived in the town in northern Turkey. He responded that he had lived there with his family until he left school, and then moved in City X to live with a relative. Two years later he moved to a different part of City X and lived at a single address there until he left Turkey the same year. The Tribunal asked if he had slept at the second address every night. He responded that he had.

The Tribunal discussed Dev Sol (now known as DHKPC) with the Applicant. He gave evidence that his whole family supports Dev Sol, although only he went to Dev Sol meetings. Although he was only a supporter with "light duties", not a member, he considered he knew Dev Sol well. His role in Dev Sol was to invite people to meetings and write graffiti on walls such as "Damn fascism" and "DHKPC". He was attracted to Dev Sol because it was in favour of equal rights and the rights of workers. Dev Sol supports democracy. The Tribunal asked him what was discussed at Dev Sol meetings. He responded that those present discussed future plans about education, "not to give up", and how to encourage revolution. He stated that "revolution" meant getting rid of the government, but he did not know how this might occur. The Tribunal asked him what he had meant in his written statements when he said that Dev Sol wanted to "overthrow the government". He responded that it wanted to get rid of fascism.

Noting that the Applicant had stated in his second submission to the RRT that the "main aim of Dev Sol is to attempt to overthrow the current government in Turkey", the Tribunal drew to his attention that "punishment for expressing ordinary political opinions is prima facie persecution for a Convention reason. Nevertheless governments cannot be expected to tolerate political opinion or conduct which calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution". (Applicant A's case at 355). The Applicant made no response to this.

The Tribunal asked the Applicant who or what was the primary enemy of Dev Sol. He responded "fascist people". The Tribunal asked him if he knew the names of anything about people who had been assassinated by Dev Sol (according to its own public statements). He responded that he did not know Dev Sol assassinated people. However the Applicant stated (correctly, according to evidence from other sources before the Tribunal) that Dev Sol is a Communist group, and is anti-NATO and the USA. He named its founder and its leader, Dursun Karatas, although he was unaware that Mr Karatas had been arrested in France in 1994. The Tribunal put to him that his knowledge of Dev Sol/DHKPC was limited, and it appeared the authorities also perceived him as having little connection with the group. He responded that the authorities had taken his passport. The Tribunal reminded him that he had earlier claimed this had been done by the "civils" [plain-clothes security forces] to ensure that he did his military service.

In written submissions, the Applicant had claimed that during one demonstration he was arrested and questioned by police as they thought he might have information about Dev Sol members. As the police could not get any information from him, they put him on their records and released him. Now he fears for his life as they will try to get him to talk again. The Tribunal asked him when this demonstration occurred, and why he continued to live at the same address until he left Turkey if he feared for his life. He responded that the short demonstration was held a few months before he came to Australia. Many groups participated, including Dev Sol. He had been taken by "contra-guerilla" police in their paddy wagon. He had been detained for several hours. Many other were also detained. The police had punched him. His hearing had suffered as a result. The Tribunal asked him if the police did anything else to him apart from question him and hit him. He said they did not. They warned him if they saw him in another "thing like that" they would kill him. The Applicant stated that "Contra-guerilla" police had never come to his home in that year. The Tribunal put to him that this indicated that they had no ongoing adverse interest in him. He then claimed that they had come "a few times". The Tribunal put to him that this was hard to believe, given his first claim that they had not. He then claimed that they had "bothered [him] constantly". The Tribunal emphasised to the Applicant that the authorities in Turkey often use torture and even "disappearance" against political activities. In comparison they had shown indifference towards him. He responded that he feared being killed.

The Applicant added that he had been detained on one other occasion, several years ago, in "the same type of situation".

The Tribunal asked the Applicant about the circumstances in which his personal documents and first passport were taken by police. He responded that the police did not take it, "civils" [plain-clothes security forces] did in order to ensure he did his military service. The circumstances were that "civils" had stopped a group of young men, including the Applicant, in the street and asked them if they had done their military service [which is obligatory for all Turkish males from the age of 20]. They had sent the Applicant home to get his documents to show them his military status and had taken the passport and personal documents to stop him leaving the country. He had kept a number of photocopies of his personal documents at home as they were sometimes needed for official purposes. This was why he had a copy of his personal documents to give the person who arranged his departure from Turkey, despite having no originals. The Tribunal gave the Applicant an opportunity to comment on the issue of his personal documents after the hearing. In a letter submitted after the hearing, he stated that the originals of the personal documents were taken by "contra-guerillas" a few months before he left Turkey. He did not explain why he had stated at the hearing that it was "civils" who had taken them.

At the hearing the Applicant stated that he was unemployed for about a year before he came to Australia. In that time had worked for friends in a shop, and lived off his savings. The Tribunal asked him how he would normally get work in Turkey. He responded that it was through contacts with close friends and agencies. For example, a friend could be in a coffee shop and hear about some work, and use connections through the network of people in the coffee shop. It was very informal and there were no strict procedures. The Applicant added that he had found work in this way.

The Tribunal noted that the Applicant had claimed in writing that Witness A had made travel arrangements on his behalf. He stated at the hearing that friends of his had a connection with Witness A [an Applicant before this Tribunal]. The Applicant had not known Witness A, but had rung him in City X about a week before leaving for Australia. He got the number from a friend. He did not know how the friend knew Witness A. The Applicant told Witness A that he needed help, as he understood that Witness A did not help "everyone". Witness A had told him that "money was needed". The Tribunal asked the Applicant if Witness A and the friend were the only two people who helped him arrange his departure from Turkey. He said there was another person who had been with Witness A when they met just prior to leaving Turkey. He had no idea if this person had helped in any way.

The Tribunal asked the Applicant if he knew why Witness A, in his own evidence to the Tribunal, had claimed never to have met the Applicant before the journey to Australia. The Applicant responded that he did not know. He and Witness A had left together in daylight. The Tribunal asked the Applicant if he could explain why Witness A had claimed that he (Witness A) had departed at midnight. The Applicant responded that he did not know, nor did he know why Witness A might have said he did not know the Applicant before the journey to Australia.

The Tribunal asked him if, as he had written in his statement, he had paid a certain amount in $US to Witness A after he boarded and that Witness A had paid his contact. The Tribunal advised him that Witness A had claimed another person gave the money to the contact. The Applicant said he knew nothing of this and that he had given the money to Witness A.

The Applicant gave evidence that he had boarded with his Turkish passport and personal documents. The passport was the second one with which he had been issued. He agreed that all the details in it about him were correct. He had got it with the help of Dev Sol contacts. He had paid a certain amount for it. He had picked it up personally from the passport office in city X. It expired two years later, and he has not renewed it. The Tribunal asked him why he had risked getting a second passport. This was relevant because, if he genuinely feared the Turkish authorities, it would be inconsistent with that fear to have obtained an official document, in person. [details of the Applicant's response and his personal documentation deleted under s431 of the Migration Act 1958]. The contact had returned the Applicant's Turkish passport to him, but not the copy of the personal documents. As it was only a copy it meant little to the Applicant.

The Tribunal asked the Applicant about his journey to Australia. [details of the journey deleted under s431 of the Migration Act 1958]. The Tribunal asked the Applicant why he had paid money to the contact. He responded that the contact knew the Applicant planned to stay in Australia, and was paid to overlook that the Applicant only had a copy of his personal documents.

The Applicant claimed that his education ceased at an early age because of discrimination against him as an Alevi_._ The Tribunal asked him to explain why he had stated on the Protection Visa form that he attended secondary school until he was aged 15, then attended another school for a further two years. This was inconsistent with his claim to have had to leave school at an early age because of discrimination. The Applicant responded that he had been beaten up at school because he was an Alevi. He could not recall the exact date when he left school, but he thought he was fourteen or fifteen. The Tribunal put to him evidence that there is some discrimination against Alevis, and occasional attacks by Sunni Moslems on them, but the evidence did not suggest that he might be persecuted for being an Alevi. The Applicant accepted that there had been "not much" discrimination of him as an adult because he was an Alevi; his problems had been worst at primary school. He also stated that he was not a practicing Alevi, and it would not be apparent to an ordinary observer that he was an Alevi.

Noting that in written submissions the Applicant had stated that he had delayed his military service obligation and had outstanding obligations, the Tribunal accepted that he would have to perform his military service if he had not done so, and that he did not want to perform it.

The Tribunal asked the Appliant why he had not mentioned his concerns about penalties for evading military service in his brief submissions to the Department. He responded that the form had not been completed properly. The Tribunal asked him if he was claiming that he would be jailed on return in part because he had tried to avoid serving in the military. If so, the evidence from other sources was that this is a law that applies to all draft evaders, it is not applied more harshly because of a person's religion or political views. He responded that he was not claiming this. He feared being detained because of his links with Dev Sol, or being sent to sent to do his military service in the "worst" part of the country because of his Dev Sol support. The Tribunal drew to his attention evidence from Australia's Department of Foreign Affairs and Trade (DFAT) that allocation for a conscript's region of military service was a matter of chance. He stated that some of his friends in Dev Sol had told him Dev Sol people had been killed in the most dangerous areas.

An Amnesty International report "Turkey, No security without human rights" (London, 1996, pp.67-68) states that the DHKP-C is an illegal left-wing organisation which grew out of youth and student movements of the 1960s. It began armed actions as Devrimci Sol (Revolutionary Left) in late 1975 and changed its name in 1994. It is based in Istanbul and Ankara, where it has carried out attacks on politicians, prosecutors, police officers, and members of security forces. It is also responsible for deliberate and arbitrary killings of alleged collaborators. There is evidence of human rights violations of individuals suspected of membership of or links with the DHKP-C. The U.S. State Department report for 1997 asserted that members of the Dev Sol/DHKP-C continued to commit abusive, violent acts during 1997. DHKP-C espouses a Marxist ideology and is virulently anti-U.S. and anti-NATO, according to a report ΑPatterns of Global Terrorism 1996" (U.S. State Department, 1996). It finances its activities chiefly through armed robberies and extortion.

In January 1996 the DHKP-C carried out what they described as a "revenge" killing in retaliation for three prisoners remanded in prison on charges of DHKP-C membership who were beaten to death. Several people entered the Istanbul business premises of an industrial conglomerate and killed a member of the owning family, a director and a secretary. The three victims were not responsible for, or even remotely connected with, the events at the prison, but appeared to have been selected arbitrarily by the DHKP-C (Agence France Presse, 1996, "Rebel Kurds form alliance with Turkish left-wing extremists", 31 December). Another report noted that the DHKP-C was regarded as Turkey's deadliest urban activist group, which had killed scores of policemen, several judges and retired generals and a former justice minister since the late 1980s. However, it had reportedly suffered a major setback since 1994 as several of its leaders and militants had either been killed or caught in police operations, mainly in Turkey's biggest city of Istanbul. In 1997 a report was published in a Turkish newspaper which indicated that the DHKP-C was trying to join forces with fundamentalist Moslems. It referred to "illegal leftist publications" which criticise the "imperialist regime", adding that the DHKP-C had, in the last edition of its publication**, Kurtulus** (Salvation) dated August 23, put itself forward as the only organisation fighting against the regime's oppression. (The Turkish Daily News, 1997, 5 September).

Of Dev Sol's membership, a Dev Sol leader has reportedly said that Dev Sol could not lose time on relations "which exist only on the surface - which could break down at any given time". An interpretation of this statement contained in 1992 document is that Dev Sol saw "each and every supporter as a potential militant and is only interested in him or her for their participation in armed activities". (Briefing Issue 899, 1992, "Crippled Dev-Sol comes back on the terror scene", 3 August, CISNET Document No.: CX8540).

In the Amnesty International Country Report (1996, AI Index: EUR 44/10/96, February) it is noted that the Turkish Government frequently seeks to draw attention away from the excesses committed by its own police and gendarmes by pointing to the abuses of armed opposition groups. Several armed opposition groups in Turkey, including the DHKP-C, not only present tough security problems but are also serious human rights abusers. A typical case of official abuse is that of three people who were shot dead in 1995 by police raiding a house in Ankara. The police claimed that the three were armed members of the illegal organisation DHKP-C and that they were unavoidably killed in the course of an armed clash. Legal counsel of one person's family were denied entry to the scene of the crime and also to his autopsy. A delegation comprising representatives of the Turkish Human Rights Association and the Progressive Jurists' Association examined the house. They reported that the distribution of bullet holes and bloodstains suggested that the three were shot dead from close range after being made to lie on the floor. A formal complaint accusing the police of unlawful killing was rejected by the Ankara Chief Prosecutor in July 1995. An appeal against that rejection was due to be heard at Ankara Criminal Court. The former Minister for Human Rights was reported by the Turkish Daily News on 27 April 1995 as having described the incident as "an execution without trial". Amnesty International reports strong evidence that in 1996 fourteen males and females, mainly teenage students, were charged with and imprisoned for membership of, or links with, the DHKP-C. The youngest was 14 years of age. They were detained and "severely tortured" in December 1995 and January 1996. In 1997 Amnesty International appealed to the Minister of Justice in Ankara, arguing that their initial convictions were based upon evidence allegedly extracted under torture. (AI Index: EUR 44/57/96, 16 April 1996; and AI Index: 44/82/97, 21 November 1997).

Turkey's system of conscription for military service makes no provision for conscientious objection. There are large numbers of draft evaders in Turkey, avoiding conscription into the war in the south-east. ("Prisoner of Conscience / Health Concern Osman Murat Ulke, Conscientious Objector", Amnesty International EUR 44/164/96, 23 October 1996, AI Index: EXTRA 162/96, CX21741)

DFAT reported in 1996 that there is potential for conscripts to be assigned to the south east of Turkey:

officially, the general practice followed in the Turkish military is for citizens from the east to serve in the west and vice-versa (and likewise for the north and south). Within this general framework there also is a policy of like-to-like so that Turks from, for example, one coastal area ... could expect to be posted to another coastal area... The region of actual service is based on a computerised system of deployment. Front-line soldiers (but not necessarily officers) are assigned to serve at least three hundred kilometres from their birthplace and place of registration. Exceptions to this are specially trained or licensed persons (for example a specialised mechanic) or those serving in special units or locations. The south-east is a large region and it is possible someone from the region could still find himself serving in what could be described as the south-east. ... (Country information report 960/96, "Turkey: military service: Kurds: deployment - CIS request TUR 3395", cable from Ankara AN26303 of 23 October 1996, CX20365)

Another 1996 DFAT cable reports that conscripts, if so assigned, are obliged to serve in military action in the state of emergency areas. Allocation is a matter of chance as assignments are made according to need and to the draw at a conscript's basic training unit. There is no alternative service to military service. It is compulsory for all males aged 20 years unless they are granted a deferment (for example studies) or can prove their unsuitability say because of health problems. (Country Information Report No. 957/96, Cable AN26310, 28 October 1996, "Request TUR 21093: deployment, avoidance/desertion", CX20367).

A 1995 DFAT cable provided the following information:

For offenders who failed to report for service or offer an acceptable excuse for not reporting, the penalty provided for in law before May 1994 was a prison sentence, and after May 1994 the penalty was converted to a fine, after which the person was still required to perform military service. The authorities pursued evaders until they turned 60. Where a person is living abroad, notification of call-up is made to his address. If there is no response, then notification is to his family. (Cable AN25436 "Refugee Applications - Information Requests" of 12 July 1995 from Ankara, CX9000).

One report indicates that a draft evader would not be released by airport police if he was identified as avoiding military service "unless, perhaps, they were (financially induced to do so." ("Refugee Review Tribunal - Information Request", DFAT cable AN25137 of 23 March 1995, CX8811).

A DFAT cable provides a profile of Turkey's Alevis:

We are not aware of any specific restrictions - either legal or practical - on Alevis practicing their religion in Turkey. Nor are we aware of any restrictions on the right of Alevis to move and to live where they choose. They enjoy the rights available to other Turkish citizens....

The Alevis probably make up at least one quarter and maybe a third of Turkey's population of around 62 million. Generally they are regarded as liberal in thought and practice and left-leaning politically. As such they may be targeted from time to time by fundamentalists. There were allegations of official discrimination against Alevis, for instance, last March when street riots followed the shooting-up of Alevi coffee-shops and a bakery in Istanbul. The Istanbul Security Chief was publicly criticised at the time for responding too slowly and then too forcibly to the unrest. Subsequently he suggested that the concerns expressed by the Minister responsible for human rights were assisting revolution. ...

Freedom of religious practice is guaranteed under the Constitution. ...(Information Request: Refugee Application - Turkey: REF TUR03046, from cable AN25703 of 24 October 1995, CX11853).

On the issue of passport issue and ability to depart Turkey, the Tribunal noted that, in November 1994, DFAT provided the following advice regarding passports:

While it is possible that suspected activists or sympathisers might be prevented from obtaining a passport legally, it is not too difficult to obtain genuine passports through contacts and bribery. (Facsimile regarding PKK activity and methods of recruitment, 21 November 1994, (CISNET CX11802)).

A recent press report indicates that false passports in Turkey are readily available in return for bribes to police and other officials (Kitney, G. ΑRich countries threatened by tide of the poor≅, Sydney Morning Herald, 10 January 1998).

When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims they have made. That may involve an assessment of the credibility of an applicant. When assessing such credibility the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible but who are unable to substantiate all of their claims. However, a decision maker is not required to accept uncritically any and all allegations made by an applicant. It is not necessary to have rebutting evidence available to the Tribunal before it can find that a particular factual assertion by an applicant has not been made out nor must it accept claims which are inconsistent with independent evidence regarding the situation in the applicant's country of nationality (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J at page 278, Selvadurai v Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal [1994] FCA 1105; (1994) 34 ALD 347, Shu Min Pan v MIMA, an unreported decision of Nicholson J of 23 January 1997 and Chan's case [1989] HCA 62; (1989) 169 CLR 379 per McHugh J at page 428).

I am satisfied, and so find, that the Applicant is a national of Turkey.

The Applicant fears being killed by Turkish authorities because of his support for the anti-government group Devrimci Sol. He stated in writing and during the hearing that Dev Sol wished to overthrow the Turkish government. I have noted that governments cannot be expected to tolerate political opinion or conduct which calls for their violent overthrow, and that punishment for expressing such opinions is unlikely to amount to persecution. However during the hearing it became apparent that the Applicant, despite his assertion that he knew a lot about Dev Sol, was unfamiliar with Dev Sol's modus operandi. It does not appear to me that he supports the violent overthrow of the government, nor that he has been involved in conduct to this end. In my view the Applicant has exaggerated his links with Dev Sol. My reasons for concluding this are as follows:

Firstly, in the first detailed written submission provided by him he claimed that he had been arrested a "number of times". However in his oral evidence he referred to only two instances of detention, one several years ago, and one a few years later. While he was punched on each occasion, these detentions were relatively brief, a few hours, and he was not charged. Further, the most recent detention occurred when he participated in a protest by "many" groups, not only Dev Sol, and it is unclear why the police would have assumed he was a Dev Sol supporter in particular. Indeed, in his written claims he stated he was released because the police could not get any information from him.

Secondly, the Applicant has claimed that he knew Dev Sol "well". However all his evidence indicated that he knows little about the group, apart from easily located basic information. The evidence from credible sources, referred to above, makes clear that Dev Sol is a group which uses violence as a means of achieving its ends, and that it has claimed responsibility for "scores" of assassinations. The fact that he did not know it was responsible for the assassinations of many prominent people in Turkey, that its stated enemy was the Turkish security forces, or that the overthrow of the government by such a group would inevitably involve acts of violence, coupled with his evidence that Dev Sol "supports democracy", all suggest that he has had only the most superficial involvement with this group.

Thirdly, it does not follow that just because the Applicant may have known or been related to people who supported Dev Sol, and that he may have used their contacts to obtain a second passport, he had any significant link with the group.

I accept that the Applicant may not support the Turkish government, and that he may support the political left. However, for the following reasons I also consider that he has exaggerated the extent of the authorities' interest in him arising from his political opinions:

Firstly, I accept that his first passport and some personal documents were confiscated by Turkish authorities. However his oral evidence as to the reason was clear. These items were taken during a random check of young men in the street, with the intention of ensuring that he could not leave the country and would thus do his military service. It was an abuse of authority but nevertheless the confiscation cannot have had any connection with his political views, which were not known to the "civils" who took them. The Applicant asserted after the hearing (in a written submission) that it was the "contra-guerillas", that is counter-terror police, who took them. However, as this is not what he clearly stated at the hearing, and as he has not explained why he has made this assertion, I do not accept this claim. In my view it appears to be a belated attempt to link the confiscation of the documents to his political views.

Secondly, I have accepted that the Applicant was detained twice by police. However, his oral evidence was that on the most recent occasion he was one of many people detained briefly after a protest involving "many" anti-government groups. Turkish police are widely reported to use torture and to detain individuals for up to 15 days without charge, or to "disappear" them. The Tribunal does not condone the ill-treatment faced by the Applicant, after a peaceful protest, while held by police. However it is significant that he was held for only a few hours, was not tortured, and was released without charge. That treatment by police is consistent with a perception of him as a person of little or no interest to them. In my view, given Amnesty International's evidence about the brutal treatment of suspected Dev Sol supporters, if police had suspected that he supported Dev Sol they would have treated him much more harshly. The fact that they did not visit him at his home or harass him again in the subsequent few months that he continued living at his usual address in City X, as he clearly stated they did not at the hearing, illustrates that the police had no further interest in harassing him. I do not accept his later assertion that the police visited him there constantly, which again appears to be a belated attempt to claim that Turkish police regarded him as a Dev Sol supporter.

Thirdly, I consider it highly significant that the Applicant made no attempt to go into hiding in the months after his most recent detention. As he stated at the hearing, he slept at his home in city X every night until he left Turkey for Australia. This was a period of several months. This apparent willingness to remain at that address is inconsistent with a fear of being arrested or killed which he now claims he held after he was detained.

I accept that the contact person took a bribe to allow the Applicant to travel to Australia. The destination, Australia, was one which was attractive to the Applicant, and it appears from his evidence that the contact person supplemented his own income by taking money from the Applicant. The mere fact that the contact person accepted money from Witness A or some other person to facilitate the Applicant's travel to Australia sheds no light on the reasons why the Applicant chose to leave Turkey.

I find implausible, and do not accept, that the Applicant left Turkey for fear of harm arising from the authorities' perceptions about his links with Dev Sol. I consider the chance remote that, if he returns to Turkey, he may face treatment amounting to persecution because of this or any other political opinion.

The Applicant became eligible for military conscription when he turned twenty. In a submission from his migration agent it was stated that the Applicant had previously deferred his military service while outside Turkey, but that he has been called up again according to his family, and he now faces a gaol sentence for a period of time, followed by the military service itself. I note that the Applicant, in the year prior to his departure, was eligible for military service and was unemployed in Turkey - I accept that he was highly motivated in this period to find a way to avoid conscription. In my view the Applicant's most likely reason for wanting to leave Turkey permanently in that year was to avoid military service.

The Applicant's passport has expired and this may draw attention to his outstanding military obligations if he contacts the Turkish authorities in Australia to extend it, or on his re-entry to Turkey. The evidence from DFAT indicates, and I accept, that he may face a fine if he returns to Turkey, as a result of evading conscription. I am also satisfied that he will then have to perform the military service. I do not accept his claim that he will be imprisoned for evading conscription, as the law was changed in 1994 so that evaders are no longer gaoled, but pay a fine instead.

It is clear from the judgements in Chan that the concept of persecution involves selective or discriminatory treatment, and does not apply to laws of general application unless the law is applied in a discriminatory manner or has a discriminatory purpose identifiable in a Convention reason. I have considered whether any penalty for draft evasion might be imposed on the Applicant for one of the Convention reasons. In my view the only two possible Convention reasons are his political opinion as a Dev Sol supporter, or his possible membership of a particular social group, draft evaders.

With regard to his political opinion, I have found that the Applicant is not regarded by the Turkish authorities as a supporter of Dev Sol. It follows that their perceptions about his political views will have no impact on his treatment as a draft evader, including the region to which he is sent. In any case, the evidence from DFAT is that it is a matter of chance where in Turkey a conscript is sent, and is therefore a matter of chance if he is sent to a conflict zone. It is unfortunately inevitable that some conscripts will be sent to high-risk areas of conflict. However in the Applicant's case I am satisfied that the payment of a fine and the obligation to perform military service would not be imposed more harshly on him than other draft evaders because of his political views.

On the issue of the Applicant's possible membership of a particular social group, there is no evidence before the Tribunal to suggest that draft evaders in Turkey are a particular social group united otherwise than by the fear of the law which requires them to pay a fine and perform the military service.

The evidence before the Tribunal indicates, and I find, that in Turkey neither the military service itself, or the penalties associated with evading it, might be imposed on the Applicant for a Convention reason.

I accept that the Applicant is an Alevi Moslem, and that he experienced some ill-treatment and discrimination because of his religion while at primary school. However, I am not satisfied that he has suffered any discrimination as an adult because he is an Alevi. He gave evidence that he is not a practising Alevi, and that it is not apparent to observers that he is an Alevi. He has not claimed that his failure to practice his religion is because of restrictions on his ability to do so. He does not claim to have been denied any basic rights as an adult because of his religion. I am therefore satisfied that, if he were to return to Turkey, the chance is remote that the Applicant would face persecution because of his religion.

Having considered all the evidence before the Tribunal, I am satisfied that the Applicant's fear of Convention-based persecution is not well-founded.

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore he does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The Tribunal affirms the decision not to grant a protection visa.