1616157 (Refugee)

1616157 (Refugee) [2019] AATA 5927 (28 June 2019)
DECISION RECORD
CASE NUMBER:  1616157
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:28 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 28 June 2019 at 1:25pm
CATCHWORDS
REFUGEE – Protection visa – Iran – religion – converted to Christianity – concerns regarding the genuineness of conversion – Turkic minority in Iran– political opinion –not a pro-Azeri political activist – anti-Iranian profile – fabricated claims – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 422AA, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 25 May 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection Visa Application
The applicant did not provide a statement with her application. The application noted that a written statement would be provided later, however there was none on the file. In her application she claimed that it would be dangerous for her to return to Iran because she would not be able to practise her new Christian faith.
AAT Hearing
The applicant and her mother had similar claims regarding their religious conversion and both attended the hearing at the same time and their claims regarding this aspect were heard jointly. Any individual claims that they had were dealt with separately.
The applicant’s mother claimed that if she returned to Iran, she would be killed by Iranian authorities because she had converted to Christianity. This was taken to also relate to the applicant.
The applicant was asked about her non-religious claims to fear serious harm. She claimed that she might be detained and tortured by the Iranian government because of her political activities. She was a member of an Azeri organisation in Australia and, as a Turkic minority in Iran, the organisation raised questions for the Iranian government. She had taken part in protests and gatherings in Australia. Asked if she was prominent in the organisation and had any anti-Iranian profile on social media or elsewhere, she claimed that there was a website and [Social media] account that recorded these gatherings and activities.
She was asked again if she had an anti-Iran profile, rather than just attending cultural gatherings and she said that she didn’t as she didn’t use social media. She was asked why she would be of interest to Iran with its population of 85 million and plenty of substantive political and economic challenges, given she was just attending Azeri cultural gatherings. She claimed that whoever got access to the website would see the gatherings and her photo there.
Asked what they would see, she claimed that they would see her and she gave the example of the last gathering that was a protest against killings/genocide in Naghorno-Karabakh. Asked why the Iranian government would impute her with an anti-Iran position for protesting about the deaths of Azeris in Azerbaijan. She said that it was because it was a Turkish case and they would be afraid that the expansion of the problems could lead to secession.
Country information was put to her that the Azeris appeared to be well integrated (Moussavi Azeri, Khamenei half-Azeri, Ahmadinejad spoke Azeri) in multicultural Iran so was asked why there would be a fear of these gatherings. She claimed that Azeris were accepted as long as they didn’t claim independence. Asked if her association was asking for secession from Iran, she claimed there were 350 million Turks and if they joined they could advance socially and economically.
She was asked again if her association advocated Azeri secession from Iran, and she said that they were not yet asking for this but were preparing for this request. Asked if it showed anywhere in their literature or websites that they were looking at secession as a future aim, she claimed that she wasn’t sure but they had communicated with Australian parliament that if such a move had been made it would be best. She didn’t know the details though.
She admitted she was not a senior member of this group and was asked why she would be of interest to the Iranians. She said her level was not the issue but the fact that she was a member. Asked if she was allowed to speak Azeri socially in Iran, on the streets, in restaurants and the like. She said this was no problem in Turkish speaking cities but elsewhere the population would not react too much. It was only an issue if she wanted to speak Azeri in court or at official situations.
It was put to her that she spoke Farsi, and she claimed she wanted to assert her native right. It was put to her that being granted protection was for serious harm and that simply not speaking Azeri in court may be annoying or discriminatory but it would not be considered persecutory. She agreed that she understood the difference between discrimination and persecution. She agreed that she had been educated there but that someone undertaking political activity in Australia would be of interest. It was put to her that she wasn’t taking part in any anti-regime activity and was asked why she would be of interest to them. She claimed the association was also concerned about what occurred in Iran. They protested [about] the high cost of living in Iran for example last year.
The witness from the Azeri Association was called. He began criticising the Iranian regime and he was stopped and told to provide evidence in support of the applicants. He claimed the Azeri language was prohibited in Iran. Their community in Australia was started as a cultural-political group four or five years ago. The applicant was very helpful to the group. Asked what the association’s political activities were and their public attitude towards the Iranian government was, he said if their members raised a problem they were supported and the issue raised in the media. They had a national day and if people were arrested and jailed overseas they protested.
Asked if they publicly called for the downfall of the Iranian government, he said that they did. He was asked to provide evidence of this post-hearing. He claimed that they advocated for the unification of north and south Azerbaijan. He was asked again if they asked for the secession of the Azeri part of Iran, he claimed it was and was asked to show this post-hearing. He said they had lunches and gatherings. Asked if they had a profile that was against the Iranian regime, he said they worked with the international community for Azeri independence. Asked about the individuals applying for protection, he claimed that he saw them as being active in the organisation with sending emails and attending gatherings.
The religious conversion claim was then examined. The applicant said that her mother was relatively religious but lately not so. She never went to mosque or went to services, but did her prayers. It was put to her that simply saying prayers wasn’t ‘relatively religious’ and she said it was a difficult definition. She didn’t do daily prayers but did so when she felt pressure or there were difficulties.
Her mother didn’t fast and did hajj once but couldn’t remember the year. She did this because of the will of her grandmother. Her father wasn’t religious but his family was. Her uncle (the mother’s brother) was a Christian convert. The mother said her brother said he was a Christian and had come to their church with them. He had come to Australia on a [temporary] visa, returned to Iran then came here again on a [temporary] visa. He married after he came to Australia but married an Iranian woman in Iran (she was now in Australia). The applicant’s mother was asked when he converted to Christianity the applicant said that she didn’t know. Asked approximately when this was, she said she didn’t know.
It was put to the applicant’s mother that siblings who each converted separately surely spoke about this to each other, and she claimed she didn’t know until they were in a gathering and she found out he was Christian and had changed his name. Asked if she then asked him about the details, she said she didn’t and they invited him to their church and the pastor there knew him. Asked what church her brother went to, the mother claimed he went to the same church but no longer went there and only went when he had the time. Asked how long ago he stopped going to church, she claimed it was about two or three years ago. It coincided with a family issue in his life.
The applicants were asked whether their account of becoming Christian in Australia were the same and both said that this was correct. The applicant’s mother said that when she first told her husband about their conversion he did not approve but after being baptised and speaking to him they wanted to return to Iran after their visit here. The two of them came to Australia while her daughter looked at educational opportunities here. Her husband was furious at their conversion.
Asked if he initiated divorce at this stage the applicant’s mother claimed that he didn’t but he argued that his daughter may not be mature enough to decide whether she should convert. Their conversion would cause many problems. It was put to her that her husband can’t have been too angry as he had remained married to her. She claimed that he was very upset but hadn’t divorced her. The rest of his family was very Islamic. Her relationship with her husband was improving, although he said previously he would stop financially assisting his daughter and he didn’t care whether his wife returned or not.
It was put to them that they had been baptised within four weeks of arriving and this raised concerns. The applicant’s mother had gone to Mecca in 2012 and she barely observed Islam, she had previously travelled to Azerbaijan and made no attempt to visit any churches or explore any religious faith, and neither of them had done any other religious study elsewhere. The speed with which they were baptised in Australia raised questions in the Tribunal’s mind as to its genuineness.
The applicant’s mother said that her father was a very conservative man and that any trips they made her father was always with them and he was always scared of going to the station. So when she told him she was a Christian he was so scared of the consequences. It was put to her that the Tribunal was interested in the speed of her conversion. She said it was because her father wasn’t with them and it was the first time she had gone to a church and she liked what was there in the church.
Her father was scared at the risk when she told him that she had gone there. She liked the first experience and decided to go again the following week. The next Sunday after the service she felt that she had certain questions and told the pastor that they (she and her mother) had certain questions. He told them to come back the following Wednesday.
Asked how they came to be at that church, she claimed that they saw some friends at a family gathering and they were Iranian Christians – these friends said they were going to church and the applicants then went. She didn’t know if they were converts, nor did she ask them. It was put to them that this would have been a normal conversation. She said they may have been here on holiday – it was put to her that it was strange that there happened to be a bunch of Iranian Baptists from Iran at this gathering. She said that she though one of the wives may have been Christian.
Asked what she did to express her Christianity above her attendance at church on Sundays, the applicant said that she spread the word of God. She said that she did this more often when she wasn’t employed full-time. She did this on the street or in shopping centres, or if they noticed in a gathering that some person wasn’t Christian they invited people to Christianity.
The witness was then brought in. Pastor [A] said they had been coming to his church since March 2015 and were regular, coming every Sunday and he had married the [applicant]. He believed they were honest and cheerful and were well integrated. Asked about [their] brother/uncle he wasn’t really aware of them. He was asked about how many Iranians he had baptised and he said there were between [numbers] in the last 11 years (2140 had come to his presentations) – he had refused to baptise some but couldn’t recall how may. Asked if it was in the hundreds he again said he couldn’t recall.
It was put to him that he had previously told the Tribunal that he had refused to baptise two people, one of whom he later baptised, and was asked if this was still the number or if he had had a rush on baptism refusals lately. He said that he didn’t baptise people if they didn’t finish his course that including refusing Islam. He said that he couldn’t give the Tribunal a figure as he couldn’t recall the number he had refused.
It was put to him that with those numbers that it was pretty obvious that Iranians knew that he was willing to baptise people and with these large numbers he baptised including the large numbers that people then submitted protection claims – it was difficult to apportion weight to his view of the reality of the person’s faith. He then began to talk about ‘deprogramming Islam’ and ‘re-programming’ people into Christianity. He then said he was a professional and had studied the Quran in depth. He believed that the two applicants were much more suitable to enter Australia than people with an Islamic Quranic mindset who believed that it was their duty to kill people. He was stopped at this point and told that he was exceeding his brief.
The applicants were told about s 424AA and it was put to the applicants that [Church 1] and Pastor [A] had baptised very many Iranians quickly who then put in protection visa applications. Other branches of Christianity require periods of discernment to understand the faith before committing to it. There were concerns that they arrived in Australia, met some Iranians at a function and were then taken to [Church 1] where they were baptised quickly. They had not previously shown any interest in religion elsewhere and in the case of the applicant’s mother had undertaken ‘umrah in 2012. There were concerns regarding the genuineness of their conversion.
The applicant said that such a concern was understandable but the bible said that many people gained faith at Pentecost. The applicant was asked to answer the question in practical terms without quoting the bible. She said that God had transformed these people and she was happy God had done this to her. It was put to her that the issue was more structural – why had she chosen the [Church 1] given its approach to baptising Iranians.
She said that she accepted the implied points but perhaps this was God’s plan. The applicant’s mother was asked if she wished to say anything and she said that she had lived with the difficulties in Iran and that she had always prayed for the sins she might have committed. She was asked why she hadn’t learnt more about the faith and had just gone to [Church 1], got baptised then put in a protection visa application. She said that she didn’t know about the church and approached the pastor on the second time they attended to answer some questions she had. She liked the idea of being forgiven for her sins.
It was put to the applicant that she said that her evangelising was difficult to do because she was working, and it may be equally difficult to do in Iran. She said that she still did it and it may increase in Iran as everyone was non-Christian. She had recently married an Iranian who was now an Australian citizen – he had been divorced after he arrived in Australia. Asked why she didn’t apply for a partner visa, she said that this may happen later but she hadn’t thought about it.
Asked if they had anything else to add, the applicant and her mother just reiterated the fact they were Christians. They were advised about a complaint made against them regarding the alleged background of the applicant’s mother. She was told that the Tribunal was satisfied that the allegation was vexatious as part of an internal family dispute. Because of this the Tribunal did not have regard to this information in coming up with its finding.

After a break, the applicant said that her activities in the association were complementary to her religious claim as they knew her to be Christian. Being a Christian convert involved in political activities would be worse because of the combined threats to the Iranian regime. If she engaged in evangelical activities in Iran, her political activities in Australia would also be taken into account.
Prior to coming to Australia she had a boyfriend and this person rang her new husband in Australia saying untruths to him, including about her now being a Christian. Asked how this person got her husband’s number, she claimed that her maternal uncle’s ex-wife may have gotten it. Asked how this person would know the number of her current husband and her ex-boyfriend in Iran. She claimed that her husband’s ex-wife was a friend of her maternal uncle’s ex-wife. It was put to her that in a country of 85 million people her maternal uncle’s ex-wife (then wife) knew the ex-boyfriend’s details. She claimed they had met a few times in Iran at family gatherings.
She claimed that she was curious as to how her ex-boyfriend got to know about her Christianity and she said this was the reason. Asked how they got her husband’s number, she claimed that her uncle’s ex-wife and her husband’s ex-wife had done [an activity] [together]. The applicant’s mother then said that although she was not an active member of the Azeri organisation she was a member and her daughter was helping [them].
She also reiterated that their evangelical activity in Iran would be combined with their political activity in Australia; her sister-in-law knew of their conversion and another relative proselytised for Islam and they had threatened the applicant because of her conversion. She was afraid that their evangelising activities may be known to the authorities in Iran because they were conducted in public. Asked if they had photos of their evangelising, the applicant said she would try to track down some images.
The applicant also said that it was natural they chose [Church 1] because it was meant to be. The adviser said that they first time they went to the Azeri association was for Nowruz about a month after they arrived. He also said they were unaware that the [Church 1] was a pathway to a conversion claim and they should be considered under complementary protection as they were evangelising everywhere and were known in the Iranian and Azeri communities.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a [temporary] visa [in] February 2015. The Tribunal accepts that the applicant is an Iranian national and her application will be assessed as such.
The applicant is [an age] year old married Iranian woman. She claimed that the Iranian government would kill her because she had converted to Christianity and that she may be executed because of her pro-Azeri political activities in Australia, and that the combination of these two profiles were very dangerous for her. She had no other claims.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that she fabricated his claim in order to be granted a protection visa.
Political Opinion
I accept that the applicant has had some contact with the Azeri-Australian Association since she has been in Australia. I do not accept that she has any profile as a pro-Azeri political activist, that it would be known by the Iranian authorities or that even if they did they did know of it that they would have any interest in her because of it.
Country information indicates that Azeris are the largest ethnic minority in Iran and well integrated into Iranian society.[1] There are isolated examples of interest from Iranian authorities into Azeri activism, in relation to protests against anti-Azeri poetry and a couple for on-line activism.
[1] DFAT Country Information Report – Iran, 7 June 2018.
The applicant never claimed to have any interest in anti-Iranian, pro-Azeri activities in her initial protection claim. Nor did she claim to have been active in any pro-Azeri groups or activities in Iran. She also claimed not to have any electronic footprint in which she advocates for any pro-Azeri and/or anti-Iranian causes as she does not use social media.
[A member] of the association appeared as a witness and claimed that the group publicly called for the downfall of the Iranian government and the secession of Azeri territory from Iran. I note that the applicant had stated that the association didn’t call for the secession of Azeri territory from Iran but were working towards it. This inconsistency in recounting the alleged aims of the organisation does nothing to convince the Tribunal that the applicant is well-versed (or even aware of) the organisation’s political (as opposed to social/cultural) aims.
The witness was asked to provide evidence post-hearing, and I have taken it into account but lend it little weight. There is an association [Social media] site that appears to have started in late 2017. Most entries are in untranslated Azeri but there are a few (around half a dozen) that are in English and appear critical of the Iranian government. I can find no reference to the applicant in any of the photos or websites, so there is nothing to tie the applicant to this group or that would prick the interest of the Iranian authorities even if they were aware of the group.
I accept that she attended a protest [in] 2018 about the high cost of living in Iran but do not accept that she has or would be likely to come to the attention of the Iranian authorities because of it or for any other Azeri-Australian Association activity. There is nothing in the photos that would identify her, and she did not explain why simply protesting about the high cost of living in her country (which has been the subject of US sanctions) would make her of interest to the Iranian authorities even if they did find out she attended the protest.
I have also taken into account her claim that she would be at risk of serious harm because of her combination of political opinion and religious conversion but I do not accept that there is a real chance that she would suffer serious harm because of this. I have not accepted that her conversion is genuine (see below), nor have I accepted that she has any political profile, therefore there is no reason why she would be of interest for a combination of factors when I have found that neither exist.
Religious Conversion
While I accept that the applicant has been baptised and attends church, I do not accept that this is genuine, but rather has been done tactically in an attempt to create a refugee profile. I acknowledge that it may be difficult to determine what is truly in one’s heart, however the Tribunal has had regard to the applicant’s actions (or lack of them) in coming to this finding.
The applicant has never evinced an interest in Christianity or any other religion previously. Despite traveling [overseas] in 2006 and 2007 (folio 55) she never claimed to have explored any other faiths, visit any other holy sites or undertake any research that would indicate a form of spiritual journey.
Her introduction to [Church 1] was also somewhat problematic. She claimed that they had met some Iranian Christians at a family gathering in Australia who invited them to church and so they went. She did not know if they were converts or Iranian Baptists on holiday here and had never asked.
It seems strange that they would have no idea of the background of the Iranians who introduced them to Christianity, even if only as part of general conversation during the family gathering. Of more concern is the rapidity with which the applicant’s conversion took place. Having never evinced any interest in Christianity previously, the applicant arrived in Australia [in] February 2015, was baptised [in] March 2015 and applied for protection on 25 May 2015.
I have taken into account the evidence as to the genuineness of the applicant’s Christian faith provided by pastor [A] however lend it little weight. He is hardly discerning regarding who he chooses to baptise, having by his own account baptised between [numbers of] Iranians over the past 11 years. He could not tell the Tribunal how many people he had not chosen to baptise, but in previous appearances before the member he had said that he could recall one person. Potentially having agreed to baptise [number] people out of [number] people who asked to, is not illustrative of someone who takes much time to determine the genuineness of someone’s faith as opposed to someone simply wanting to become baptised in order to include it in a refugee claim.
And while I accept that the applicant has continued to attend church and has on at least one occasion done some form of outreach (as evidenced in the photo at folio [99] I am not satisfied that this is evidence of a genuine commitment to the faith or of a record of proselytising behaviour given the evidence consists of a single photo.
I have also taken into account other pieces of evidence that she has provided but lend them little weight; a letter from [an organisation] that attests to her support in their store (it was only for a two week period in 2016 and nothing further has been provided) and a letter from another member of the pastoral team at [Church 1]. Given they are from the pastoral team that Pastor [A] leads, I am satisfied that the same lack of insight into the genuineness of the applicant applies. The contents of the letter also do nothing to dispel the Tribunal’s concerns about the rapidity of the conversion.
Because I have found that the baptism and conversion is not evidence of a true commitment to the faith, it follows that the church attendance and outreach are also requirements to maintain that profile rather than any evidence of genuine religious belief. It also follows that because it isn’t genuine the applicant would not conduct any evangelical activities in Iran on her return, nor are there any problems with the family as a result of her alleged conversion. I do not accept that someone in Iran has called her current husband saying that they knew of the applicant’s conversion to Christianity.
Not only are the interpersonal connections that would allow someone to know her current husband’s personal phone number so coincidental as to be implausible, the account relies solely on her oral evidence which I have not found to be credible.
Failed Asylum Seeker
Although she made no direct claim on this basis, a claim was made on her behalf in a pre-hearing submission by the adviser (folio 90) and I have included it for completeness’ sake. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[2]
[2]     >
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that Iranian authorities pay little attention to failed asylum seekers on their return to Iran.[3] This was reinforced by a February 2011 UK Upper Tribunal decision found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment’[4]
[3] DFAT Country Information report – Iran, 7 June 2018
[4] DFAT Country Information Report, Iran, 20 November 2013, p 25
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
I do not accept that the applicant is an Azeri nationalist seeking secession from the Islamic Republic of Iran, that she has or would seek to demonstrate or be active in support of such a move, or that she has or will come to the attention of the Iranian authorities for having had any connection to the Azeri-Australian Association
I also do not accept that the applicant has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that the applicant will be imputed with being a Christian and/or apostate through her church attendance, activities or baptism, or that she has or will come to the attention of the authorities or her family for having done these activities in Australia.
I also do not accept that the applicant would be prosecuted as a voluntary returnee or for seeking asylum. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5927

28 June 2019

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

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