ATTENTION: THIS VISA IS NOT FOR ALL TURKISH PEOPLE IN AUSTRALIA

PLEASE READ THIS PAGE CAREFULLY BEFORE CONTACTING OUR OFFICE, AS YOU MAY NOT BE ELIGIBLE. 

Fear to return to Turkey?

Our Expert Immigration Lawyers are currently helping Turkish Nationals to apply for PROTECTION VISA in Australia.

You may not be eligible.

Please read this page carefully before contacting us.

Do Your Protection Claims Fall in One of These Categories?  

  • Religious minority communities (Armenian Apostolic Orthodox Christians, Jews, Greek Orthodox Christians, Baha’i, Yazidis, other Christian groups such as Protestants and the Jehovah’s Witnesses)
  • LGBTI persons
  • Women fearing gender-based violence and discrimination
  • Anti-government protesters
  • Kurds
  • Individuals involved in defamation against State Institutions and the president
  • Human rights defenders 

PLEASE DO NOT CONTACT US IF YOUR ISSUE IS NOT LISTED ABOVE

Protection Claims and Current Situation in Turkey:

  • Turkish Anti-government Protesters

Throughout 2019 and 2020, the Turkish government prohibited many demonstrations on national security grounds, and often detained persons likely to be involved before scheduled protests commenced.

Turkey’s Human Rights Association claimed in 2019 police intervened in 962 demonstrations, and 2,800 individuals were beaten or subject to unnecessary force while police were breaking up protests.

The ability of critics to protest government policies through political demonstrations has been significantly reduced by measures introduced during the state of emergency that remain in place.

  • Defamation Against Turkish State Institutions and the President

In recent years, authorities have indicted hundreds of individuals, including journalists and minors, on defamation charges for insulting state institutions and the president.

Media reporting alleged there was a 13-fold increase in convictions between 2016 and 2019 for insulting the president.

Most cases have applied to journalists, but cases have also been filed against writers, politicians, athletes, students, academics and schoolchildren.

In May 2020, a warrant for ‘insulting a public official’ was issued against a CHP youth leader for seven-year old social media posts made when she was 17, while an 80-year old man was detained in April for merely ‘liking’ a supposedly insulting post on Facebook.

  • Turkish Human Rights Defenders

According to OHCHR, as of March 2018, the government had permanently closed 1,719 organisations through emergency decree, including human rights and humanitarian groups, lawyers’ associations, foundations and other NGOs. The government has prosecuted many human rights defenders for alleged membership in terrorist organisations, including the Gulen movement and the PKK. In recent years a number of high-profile activists have been arrested and subjected to long, complex and inter-linked legal procedures. Prominent human rights activist and philanthropist Osman Kavala was detained in October 2017, accused of participating in a George Soros-linked plot to overthrow the state.

  • Turkish Women Fearing Gender-based Violence and Discrimination

Article 287 of the Criminal Code on genital examinations allows a judge or prosecutor to authorise virginity testing, even if the subject does not consent.

Women’s rights advocates have expressed concern that the government has promoted policies and institutional arrangements that support perceived ‘family interests’ at the expense of women’s rights. In April 2020, there was widespread community uproar over a draft law dubbed ‘marry your rapist’ which would have permitted men accused of having sex with girls aged 14 and over to avoid punishment if they married their victims.

The Law on the Prevention of Violence against Women and the Protection of the Family (2012) does not specifically criminalise domestic violence. Women’s rights advocates report protection orders are insufficiently monitored and rarely enforced.

Courts often hand down lenient judgements to perpetrators of sexual violence, including those convicted of raping minor girls, and sentences are often reduced if the defendant demonstrates ‘good behaviour’ during trials.

  • Turkish LGBTI Persons

The law does not guarantee LGBTI individuals certain rights enjoyed by others, including but not limited to marriage and associated partnership benefits such as retirement, inheritance, insurance, social security and access to the corpse in case of death.

Human rights groups report police have used legal provisions relating to ‘offences against public morality’, ‘protection of the family’ and ‘unnatural sexual behaviour’ to justify harassment of lesbian, gay, bisexual, transgender and/or intersex (LGBTI) individuals.

Police harassment against transgender sex workers is reportedly common, often to extract bribes. No legislation prohibits hate crimes against LGBTI individuals. Human rights groups claim this leaves LGBTI individuals vulnerable to street crime and general violence.

Article 29 of the Criminal Code allows for the mitigation of sentences, including assault or murder, if the defendant has been provoked by an ‘unjust act’. Human rights groups claim judges have used Article 29 to mitigate sentences in cases of murder of LGBTI individuals.

Pro-government media and high-level officials, including President Erdogan, frequently make derogatory comments and statements about homosexuality.

  • Turkish Unrecognised Religious Groups

The government does not, however, recognise the leadership or administrative structure of Lausanne minorities (the Armenian Apostolic Orthodox Christians, Jews and Greek Orthodox Christians) as legal entities, which prevents them from buying or holding title to property, and from pressing claims in court. The Lausanne minorities (and other religious minority communities) rely on independent foundations with separate governing boards to hold and control individual religious properties. These foundations have reportedly been unable to renew the membership of their governing boards because the government has not promulgated new regulations since repealing previous rules in 2013.

In May 2019, an 86-year-old Greek Orthodox man was murdered in his home, and, in November 2019, a South Korean Christian missionary was stabbed to death – both incidents attributed to their religious activities. In Istanbul in the same year, an Armenian woman was stabbed at her front door after receiving months of threats associated with her religious beliefs, and in Izmir a Molotov cocktail was thrown at the Beth Israel Synagogue. Community representatives have also expressed concern about negative speech in the state media and from senior members of the government – particularly antiSemitism – which tends to peak at times of heightened tension between Turkey and Greece, Armenia or Israel.

Members of other unrecognised religious groups (including, but not limited to, Baha’i, Yazidis, and Christian groups such as Protestants and the Jehovah’s Witnesses) do not enjoy the same rights either.

Throughout 2019 and 2020, a large number of Protestant foreigners living in Turkey had their residency permits cancelled on spurious national security grounds, which local church representatives claim had the effect of restricting their ability to practise their faith. Their access to public sector employment and promotion is comparable to that of members of the Lausanne minorities. DFAT is aware of occasional reports of vandalism against properties owned by unrecognised religious groups, and of threats against clergy via text messages, social media postings and emails.

  • Turkish Kurds

Kurds in Turkey face official discrimination and some sporadic societal discrimination based on their ethnicity. The extent and form of this discrimination depends on geographical location and personal circumstance. Those residing in the southeast, and those active (or perceived to be active) in Kurdish political or civil society organisations are at higher risk than those who are not politically active, or those who support the AKP.

ONSHORE PROTECTION VISA – SUBCLASS 866

Our Immigration Lawyers can help you with your Onshore Protection Visa. Most of our protection visa clients are international students and tourists who fear to return to Turkey and would like to stay in Australia permanently. We have a proven success record in assisting nationals of Turkey.

ABOUT SUBCLASS 866 VISA

On 28 July 1951, the Refugee Convention was adopted by a United Nations Conference of Plenipotentiaries, in Geneva. Australia became a party (acceded) to the Convention on 22 January 1954. The Refugee Convention came into force on 21 April 1954.

Australia is a signatory to the 1951 Refugee Convention and the 1967 Protocol. This means that Australia has voluntarily committed to comply with their provisions in good faith and to take the necessary steps to give effect to those treaties under domestic law (Vienna Convention on the Law of Treaties, Article 26).

Under Article 33(1) of the Refugee Convention, Australia has an obligation not to:

“… expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.

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PROTECTION VISA REQUIREMENTS

To be a refugee in Australia, an asylum seeker must be assessed as meeting certain legal criteria. The meaning of a ‘refugee’ in the Migration Act 1958 (the Act) is a person in Australia who is:

  • outside their country of nationality or former habitual residence (their home country) and
  • owing to a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or to seek the protection of that country.

This definition is forward-looking. Even if a person has suffered persecution in the past, they are not a refugee by the meaning in the Act unless they have a well-founded fear of persecution and there is a real chance they will be persecuted in their home country now, if they were to return. However, past events could establish a real chance of persecution if the person were to return.

A person might become a refugee after arriving in Australia. This could occur if there is a change of circumstances in their home country or a change in personal circumstances after they left that gives them a well-founded fear of persecution if they were to return.

FEAR OF PERSECUTION

Well-founded fear of persecution The Act states that a person has a well-founded fear of persecution if:

  • they fear persecution for at least one of five reasons specified in the Act
  • there is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
    the real chance of persecution relates to all areas of their home country
  • at least one of the five reasons must be the essential and significant reason for the persecution
  • the persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.

THE FIVE REASONS

Section 5J(1)(a) of the Migration Act provides an exhaustive list of the five reasons for which a person may claim that a persecutor is motivated to inflict harm upon them. The five reasons are consistent with those in Article 1A(2) of the Refugees Convention. The reasons are:

  • Race
  • Religion
  • Nationality
  • Membership of a particular social group (PSG – family and non-family)
  • Political opinion.

COMPLEMENTARY PROTECTION REQUIREMENTS

Complementary protection is protection for those who are not refugees according to the Act, but who can’t return to their home country because they will suffer certain types of harm which engage Australia’s other protection obligations.

These obligations come from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR) and have been incorporated into the Act.

A person can be granted a protection visa on the basis of complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer ‘significant harm’ if they were removed from Australia to their home country.

The complimentary protection provisions enable visa applicants to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia’s obligations under international human rights law.

International human rights law precludes countries from sending people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.

MIGRATION ACT 1958 (CTH)

Section 36(2A) of the Migration Act 1958 (Cth) largely gives effect to those obligations in domestic law. People at risk of this kind of harm are eligible for a protection visa. In this way, human rights law provides a ‘complement’ to protection under the Refugee Convention, hence the name ‘complementary protection’.

Specifically, section 36(2A) provides that Australia is not permitted to remove people to countries where they face a real risk of one or more of the following:

  • arbitrary deprivation of life
  • the death penalty
  • torture
  • cruel or inhuman treatment or punishment
  • degrading treatment or punishment.

Complementary protection introduced greater efficiency, transparency and accountability into Australia’s protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.

Particular social group

There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person will be a member of a particular social group if:

  • each member of the group shares a characteristic
  • the person shares, or is perceived as sharing, the characteristic
  • any of the following apply:
    • the characteristic is innate or immutable (cannot be changed)
    • the characteristic is so fundamental to a person’s identity or conscience, they should not be forced to renounce it (go against it); or
    • the characteristic distinguishes the group from the rest of society
  • the characteristic is not a fear of persecution.
Serious harm

To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:

  • a threat to the person’s life or liberty
  • significant physical harassment of the person
  • significant physical ill treatment of the person
  • significant economic hardship that threatens the person’s capacity to subsist (ability to survive)
  • denial of access to basic services, where the denial threatens the person’s capacity to subsist (ability to survive)
  • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (ability to survive).
Systematic and discriminatory conduct

To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.

  • Systematic means the harm is not random or generalised, but is targeted against the person.
  • Discriminatory means the conduct of the persecutor affects the person or members of a group in a way that singles that person or a group out from the rest of the community.

This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.

Real chance of persecution

For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.

If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.

Seeking protection from authorities in their home country

If the government or other parties that control all or a large part of the person’s home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well-founded fear of persecution and will not be a refugee.

A right to enter and reside in another country

If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.

Modifying behaviours

According to the Act, a person does not have a well-founded fear of persecution if they can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution their home country. However, this would not be the case if such a change would:

  • conflict with a characteristic that is fundamental to the person’s identity or conscience
  • require the person to conceal or hide a characteristic that is innate or immutable (one that they could not change), or
  • require the person to:
    • change their religious beliefs, including by renouncing a religious conversion, or conceal their true religious beliefs, or cease to be
    • involved in the practice of their faith
    • conceal their true race, ethnicity, nationality or country of origin
    • change their political beliefs or conceal their true political beliefs
    • conceal a physical, psychological or intellectual disability
    • enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child
    • alter their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.

Helping People Just Like You

What matters to us most is what our clients have to say about their experience once everything has been resolved. Below are some of the messages we have received from people we’ve represented.

Daniel White
Daniel W.
In my view these guys are legends, and they are the best migration law firm in Australia. I consulted 5 other migration firms and none of them could match the expertise of Gold Migration Lawyers. If you have a complex application, go to Gold Migration!read more
Salim Muhammed
Salim M.
Good people and they know the rules back to front. They gave me friendly service and good result.
Cherry Lau
Cherry L.
They are the BEST immigration lawyers in Australia. Highly recommended if you can afford them 🙂
Angela Parker
Angela P.
We hired Gold Migration Lawyers to assist us with our partner visa application. At the time the department’s processing time was over 24 months. GML lodged our application and it got approved in 4 months. We are extremely happy with the outcome as I know people who have been waiting for years for their partner visa. I highly recommend Gold Migration Lawyers. The team is amazing!read more
KA CHUN UY
KA CHUN U.
I am very grateful to the lawyer Peter Peng. Although my case is very troublesome, he was very patient to help me solve it step by step. At that time, I only had 20 days to provide supplementary information from the Immigration. I found this law firm, the owner, Ramtin.  He is very confidence and professional also made me full of confidence in him. They added different viewpoints and legal opinions in the explanation letter, which successfully made the immigration officer accept my explanation.  The next day after submitting the information, the Immigration officer immediately accepted my explanation and asked me to have a medical examination.It took two months to successfully get the Partner(820) VISA, I am very grateful to them  I highly recommend this law firm , they are really pro and they can help you slove any problem.read more
Bibi Mon
Bibi M.
I went to these lawyers trusting them they will be able to organise my permanent residency. I was a little worried with how much it costs but in the end I have to say they went above and beyond my expectations, they were worth every cent. I would like to mention and thank my lawyer Peter who looked after my case, very professional through the whole process. Gold immigration lawyers are the “gold” standard.read more
Ignacio Falcon
Ignacio F.
Amazing team of lawyers! Peter was extremely helpful and offered detailed guidance throughout the whole process. I highly recommend their services
Mauricio G Guerra
Mauricio G G.
Exceeded my expectations, good communication, very professional!
Leo Donnelly
Leo D.
They made the process very smooth, always there to answer my calls and give professional help even to the most minor detail.I felt like I was treated like family.Visa was processed very quickly and I would recommend them to anyone who would like assistance with the Visa application.read more

frequently asked questions

Can I lodge a Protection (866) Visa whilst in Australia?

If you are eligible, yes you can. The Protection (866) Visa can only be lodged whilst you are in Australia.

How would I be eligible for a Protection (866) Visa?
  1. You must be in Australia and have arrived here legally, on a valid visa. Such as a student visa or tourist visa.
  2. You must have a fear to return to your home country.
  3. Must establish that your fear is because you will be persecuted due to one or more grounds under the UN Convention (see above).
  4. Otherwise, must demonstrate that there is a real risk that you will suffer some specific sort of harm (see Complementary Protection Requirements discussed above)
Do I need to have an interview with the Department of Home Affairs?

Yes, the DHA will normally interview you to discuss the claims on your application. However, we have seen applicants being refused without even being invited to an interview.

The DHA will normally won’t interview the applicants who have lodged a weak protection visa application, where the applicant has provided vague claims and has failed to submit supporting evidence to reinforce their protection claims.

Can I travel back to my home country after a Protection Visa is granted?

A protection visa holder with Condition 8559 must apply to the DHA for permission to travel to their home country before they depart.

I am scared to go back to my home country because I will be persecuted. What are the different reasons that the DHA accepts this?

To have a well-founded fear of persecution, a person must fear serious harm because of their race, religion, nationality, membership of a particular social group and/or political opinion. Otherwise, the applicant’s claims must satisfy the complementary protection provisions of the Migration Act 1958 (Cth).

Is subclass 866 Protection Visa a Permanent Visa?

Yes. This visa entitles holders to permanent residency and a pathway to citizenship and the ability to apply to sponsor their family.

What are the Non-refoulement obligations for Australia?

A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where there are substantial grounds for believing that the person will be at a real risk of a specific type of harm. Australia has non-refoulement obligations under international treaties to which it is a party, including:

  • the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol (non-refoulement obligation expressed in Article 33(1) of the Refugee Convention)
  • the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (non-refoulement obligation expressed in Article 3)
  • the International Covenant on Civil and Political Rights (ICCPR) (non-refoulement obligation implied in relation to Articles 6 and 7).
Will I get a Bridging Visa if I apply for the Protection Visa?

Yes, but only if you make a valid application. If your application is valid, you will be given a Bridging Visa to continue to stay in Australia until your protection visa application is finally determined. This means if your student visa or tourist visa expires, you won’t need to be concerned, as the Bridging Visa will allow you to stay in Australia during the processing time.

My student visa expired some time ago and I have lodged another student visa and still waiting for a decision. Can I apply protection visa?

Yes, you can. The fact that you have lodged a student visa and now you are on a bridging visa wont be an issue. In Australia, please can apply for multiple visa applications at the same time.

What does political opinion mean?

The scope and meaning of political opinion in the context of s5J(1)(a) of the Act is not defined. Nor is there any definition of political opinion within the Refugees Convention (Article 1A(2)) which 5J(1)(a) codifies. There is, however, significant direction from the courts on the matter.

A broad approach should be taken to determining what is political:

  • political opinion is not limited to party politics
  • political opinion extends to views contrary to the views of the State or opposition party
  • political opinion may encompass opposition to corruption or whistle blowing
  • political opinion may include knowledge of a fact
  • a relevant opinion may be one expressly voiced by the person, or one which is merely imputed to them
  • a political profile is relevant, but not necessary, to a political opinion claim
  • a political opinion may be directly expressed or imputed from dress, music or behaviour, or the adoption of particular values or customs
  • opinion that is yet to be expressed may be relevant to a claim under this ground
  • as a general rule, prosecution under a law of general application will not amount to persecution for reason of political opinion
  • a standard of reasonableness is expected in how and when a person chooses to express their political opinion.

Our Team