1800021 (Refugee)

1800021 (Refugee) [2022] AATA 1073 (21 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1800021
COUNTRY OF REFERENCE:                   Iran
MEMBER:Joseph Lindsay
DATE:21 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Safe Haven Enterprise visa.

Statement made on 21 February 2022 at 4:39pm

CATCHWORDS
REFUGEE – protection visa – Iran – stateless Faili Kurd – no documentation or rights and living at subsistence level – discrimination, harassment and attempted recruitment by Basij – departure using false passport – concession of false claims at hearing – identity and documentation – not stateless but Iranian citizen – new claims – father’s profile as author and festival arranger – returned failed asylum seeker – Islamic and legal marriage to Australian citizen – not eligible for spouse visa – all other family members in Australia – country information – low likelihood of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 423A
Migration Regulations 1994 (Cth), 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 dependants.
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 and Border Protection on 11 December 2017 to refuse to grant the applicant a Safe Haven Enterprise (Class XE) Subclass 790 visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who is a citizen of Iran, applied for the visa on 20 February 2016.
[The applicant] participated in a video hearing with the Tribunal on 21 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant]’s spouse, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
For the purposes of clarification, the applicant asked the Tribunal to refer to him by [his real name]. The applicant said that he used the name [applicant name] because the people smugglers had suggested to him to use another name that was not his real name. The Tribunal accepts that applicant’s name for the purposes of this review is [Real name].
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 (Cth) (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 themselves 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
BACKGROUND
This case is a very long running matter. The Tribunal notes that the applicant provided a copy of the decision record from the Department dated 11 December 2017. The decision record contains an account of the applicant’s migration history. The applicant originally arrived in Australia at Christmas Island unlawfully aboard a boat [in] July 2010.
At his entry interview, the applicant made the following claims as summarised by the delegate:
-He was a stateless Farsi speaking Faili Kurd of the Shia Muslim religion.
-He was born in Ahwaz, Iran, in [Year]. He attended three years of schooling at [School] between [year range].
-He worked from 2003 to 2010 for [Mr B] as [an Occupation 1].
-His father was deceased and his mother lived in Ahwaz, Iran with her brother in law.
-Two of his siblings ([Ms C] and [Mr D]) were with him at Christmas Island, and a step-brother ([Mr E]) was living in Australia.
-The Iranian government did not give his family any documentation or citizenship rights and no social benefits. They could not apply for driver licences, use public hospitals or a gym. He had a white card but this gave him no benefits and he could only reside in the city he lived in.
-He did not have any problems with the police or the courts and he did not have to pay any bribes. He had no problems with election protests.
-The white card of his family was cancelled before the family left Iran. The Applicant’s family were warned if they were arrested they would be expelled from Iran. The smuggler told them that they had to cancel their white cards and that according to law if a person does not have their white card cancelled, they can’t leave Iran.
-The Applicant and his family left Iran because they had no civil rights. However, the Applicant was never in trouble with the authorities. He had not been involved with protests. There were no armed groups, political groups or religious groups operating in the area where he lived. Faili Kurds were not liable for conscription and were not recognised as citizens. Life in Iran was wasting his time and he was forced to work hard to live at a subsistence level.
-In 2004 he was badly injured in an accident but the Iranian government did not cover any of his health expenses.
-The Applicant could not return to Iran because his white card was cancelled and he may be imprisoned or killed. Stateless people can be accused of any type of crime. The Applicant cannot go back to Iraq because the majority of Iraqis are Sunnis and as he is a Shia there would be no safety there. The Applicant cannot speak the (Iraqi) language and would be called an Iranian.
In his statement dated 3 February 2011, the applicant made further claims as summarised by the delegate:
-The Applicant claimed he was told by the people smuggler that because he and his relatives were Kurdish they should make their case about ethnicity and not to make it a political case. The smuggler said that if the family makes it a political case the family would be at risk because the Iranian government will know, harass and harm the family.
-When the Applicant was [at] school members of the Basij tried to recruit him. He refused to join and as a consequence he was harassed and suffered discrimination.
-Three years ago the Applicant’s brother [Mr D] told him that students at his school from the Basij tried to recruit him. The Applicant became upset and the following day at school yelled at the Basij that [Mr D] would not be joining them and the Applicant warned them to stay away from his brother.
-A few days later the Applicant was in the city with his brother when 4-5 cars full of men approached them at high speed. The Applicant ran away but one of the cars ran him over and he suffered brain damage as a result. He was in a coma for one month and still suffers severe pain in his hands and legs. The Applicant knew the cars were from the Basij because they had a special type of registration plate. After this incident the Applicant’s brother [Mr D] was fearful of returning to school and he kept a low profile, rarely leaving the house out of fear of the Basij.
-A few days later [Mr D] said that Basij members approached and threatened him and his family because he had not returned to join the Basij as promised.
-After this incident the Applicant and [Mr D] left their home and stayed with a family friend in a different part of Ahwaz in fear of their lives.
-After [Mr D] did not comply with the request of the Basij, they were now targeting him and his family including the Applicant. The Basij were also targeting the Applicant because he yelled at the Basij members in [Mr D’s] school and did not consent to [Mr D] joining the Basij.
At his Independent Merits Review interview on 20 June 2011, the applicant said the following as summarised by the delegate:
-The Applicant left Iran because of problems with the government. He swore at the Basij who tried to recruit [Mr D] at school but did not threaten them. The Applicant had similar problems when he was at school. The Applicant had a problem with the principal at the school insisting on them praying in the Shia style even though they didn’t want to.
-The school was a Basij training camp, and it was obvious the Applicant and his brother were Faili Kurds because they did not have any certificates. The Basij would try to recruit other (stateless Faili Kurds) too and pressured them more because they had no ID and they were not involved in religious ceremonies. The Applicant had a white card with his name and photo. His mother was in charge of things like the family ID cards and he thought that she changed their cards from green to white, but neither of the cards were of any value.
-The Applicant did not remember his father and his mother was always busy and never had time to talk about him. They did not associate with other Faili Kurds. The Applicant’s mother did not speak Kurdish because her children did not speak it. They were not involved in Kurdish customs. They were discriminated against and couldn’t travel for holidays. They did not have bank accounts but the Applicant and his brother [Mr D] assisted their mother financially.
-The Applicant could not remember the Basij attempting to kill him. He wasn’t able to go to work after the accident and had to be tube fed at hospital. He still has problems with his memory.
The applicant’s claims made as part of the SHEV application and interview as summarised by the delegate are as follows:
-The Applicant is a Shia Muslim who was born in Ahwaz, Iran, on [Date 1].
-He is a stateless Faili Kurd in Iran with no rights, no documentation and no citizenship. His father was stateless.
-Three of the Applicant’s adult relatives are currently living in Australia, including a sister, a brother and a step brother. The Applicant also has a niece living in Australia.
-The Applicant is now married to his Australian citizen wife [Ms A] and they live in [Suburb 1], Victoria.
-The Applicant departed Iran using a false passport.
-In Iran he had no rights to access education, hospital, medical or employment, no freedom and no identification. He suffered political discrimination. The Basij tried to force him to join them when he was at school but he would not join and they would not let him attend school. He worked as [an Occupation 1] for little money after this and could not survive on the money he earned.
-He had a green card but it was now expired and the government won’t give him another card. He feared he would not be safe if he returned to Iran, and feared being taken to jail or that he would be killed because the government would believe he was opposed to the government.
-Four or five Basij cars full of men tried to get him when he ran away from the Basij car. He was in a coma for one month and suffered brain damage.
-He was stateless with no rights or documents and he couldn’t get any help from the government.
-The Applicant does not follow Shia Islam anymore. He now no longer follows any religion. He does not have any identification and has no green card.
HEARING
The applicant said he had [sisters] and two brothers. He said one of his brothers had passed away. He said his mother and father have also passed away. He said his brother and [sisters] are all in Australia. He said all of his family live in Australia, but he still has some cousins in Iran.
In respect to his claims about being a stateless Faili Kurd, the applicant indicated that this claim was false. The applicant made clear that he was not a stateless Faili Kurd but rather than he was born in Iran and he was a citizen of Iran. The applicant said his father told him he should go to Australia. The applicant spoke about how the people smugglers suggested to him that he should claim in order to successfully be granted a protection visa. The applicant said he initially claimed he did not have any identification about himself, but this was not true. He said his sister and brother-in-law in Iran helped him to get all of his identity documentation. In respect to his current identity documentation in Australia, the applicant said his Victorian drivers’ licence, marriage certificate and ABN number all made reference to his false name, [applicant name]. The Tribunal notes that after the hearing the applicant did email copies of his identity documentation to the Tribunal. Indeed, the NAATI translated documentation shows that the applicant is [Real name] born on [Date 2] in Ahvaz, Iran. This Tribunal accepts that the applicant is [Real name] born on [Date 2] in Ahvaz, Iran.
[Ms A] said that she had explored the option of applying for a spouse visa for the applicant, but that he was not eligible to be granted a spouse visa because he had arrived in Australia in his particular circumstances.
However when asked what his current claims were, the applicant said that he felt he was not safe in Iran due to the books his father wrote as well as his father’s involvement in certain festivals that he claimed that his father arranged in Iran.
In respect to the books his father wrote, the applicant said that one book was about some tribes in Iran. In addition, he said his father wrote about a classic Persian poet. The applicant claimed that the Iranian authorities accused his father of organising a movement with the Iranian regime. When asked if he had raised these claims before, the applicant said these were new claims and had not been raised before.
The applicant said his father had a gun for hunting, and a few times the police came to the home searching for the gun. He said the police said his father said he wanted to use the gun against the government. He said the police had come to the house and searched the house. He said all of these events happened when he was young.
The applicant went on to explain that, when he was in Iran, he had been studying but he had a car accident. He said he was on a coma for a long time. He indicated that as a result of the accident, he suffered from memory loss. He said that while he could not remember when he had the car accident, he could remember that he came to Australia in 2010. In any event, he said that he stopped going to university and started working for [a] company. He said he worked for about three years to earn the money that he eventually used to pay the people smugglers to get him to Australia.
The applicant went on to explain that his father was told he was going to make a revolution against the Iranian government. However, the applicant was not sure when the festival happened. In addition, the applicant claimed that at some point his father had been put in prison by the Iranian authorities, but he was not sure about the details. In any event, the applicant said his father died in Australia some time ago.
When asked if he was able to provide more information about the book he said his father wrote, the applicant said he has never actually read the book and has no idea what it is about. The applicant said that it was his father who told him that the book was about [deleted].
When asked if he was able to identify the reasons why he claimed to fear returning to Iran, the applicant said he had no one in Iran and his family was here in Australia. He said he is with his wife and he has his house here in Australia.
When the Tribunal put to the applicant that the Tribunal may find he did not have any genuine fear of the Iranian authorities, the applicant said he thought he would always have fear. He said he was concerned about being a returned asylum seeker and how he would be treated. The Tribunal spoke about the DFAT Country Information Report for Iran dated 14 April 2020. The relevant section states:
Conditions for Returnees
5.27 Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
5.28 The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
5.29 Authorities pay little attention to failed asylum seekers on their return to Iran (Tribunal emphasis). Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
5.30 International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims (Tribunal emphasis). This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
5.31 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination (Tribunal emphasis).

The Tribunal spoke with the applicant about s.423A of the Act that states:
How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
When the Tribunal asked the applicant why he has not raised the claims he made to the Tribunal before the primary decision was made, he indicated that because he had fabricated his claims and his false identity that it was really hard to change his story.
When the Tribunal spoke to [Ms A], she expressed her concerns about what had happened. She said she had fallen in love with the applicant and had tried her best to help the applicant. She indicated she was aware that the applicant had previously provided false information to the Department about his claims. She said she was concerned that if the applicant went back to Iran he would have no one. She said she felt sorry for the applicant. She said she was aware of all the lies the applicant had told. She said she just wanted the applicant to be in Australia with his family. She said she did not want to go to live in Iran with the applicant. She said she was a qualified [occupation] and her whole life and career was in Australia. She said they met at the gym and he is a lot younger than her. She said she has helped the applicant a lot, including financial support. She said this is not a marriage of convenience.
ANALYSIS AND FINDINGS
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims.
In respect to the witness, [Ms A], it is clear to the Tribunal that [Ms A] has been of great support to the applicant who is her spouse. The Tribunal found [Ms A] to be a genuine, honest and credible witness.
Regretfully, the Tribunal cannot say the same in respect to the applicant. The Tribunal does not accept that the applicant gave credible information to the Tribunal about his protection claims and the Tribunal finds that he is not a credible witness. The reasons in respect to the Tribunal’s finding about the applicant’s credibility are as follows.
The applicant was very clear in the hearing that he had abandoned his previous protection claims. The applicant indicated that he knowingly gave false information about his identity and his claims as to why he said he feared harm if he returned to Iran. The applicant maintained this pretence and falsehood for a substantial period of time. The Tribunal does not accept that the applicant gave a reasonable explanation as to why the claims he made at the hearing were was not raised, or evidence not presented, before the primary decision was made. These circumstances have caused the Tribunal not to be satisfied that the applicant is a credible witness or that he has provided credible information to the Tribunal about his protection claims.
Accordingly, the Tribunal does not accept any of the following claims:
-He is a stateless Farsi speaking Faili Kurd of the Shia Muslim religion.
-The Iranian government did not give his family any documentation or citizenship rights and no social benefits.
-The white card of his family was cancelled before the family left Iran, or that his family were warned if they were arrested they would be expelled from Iran.
-He could not return to Iran because his white card was cancelled and he may be imprisoned or killed.
-When he was [at] school members of the Basij tried to recruit him, and that he refused to join and as a consequence he was harassed and suffered discrimination.
-There was an incident where he was in the city with his brother when 4-5 cars full of men from the Basij approached them at high speed and he (the applicant) ran away but one of the cars ran him over and he suffered brain damage as a result.
-Basij members approached and threatened his brother [Mr D] and his family.
-He (the applicant) and [Mr D] left their home and stayed with a family friend in a different part of Ahvaz in fear of their lives.
-The Basij were now targeting [Mr D] and his family (including the applicant).
-He left Iran because of problems with the government.
-His school was a Basij training camp.
The Tribunal does not accept that the applicant was ever harassed by the Iranian authorities for any reason, including for speaking against the Iranian government. The Tribunal does not accept that the applicant has renounced Islam.
The Tribunal accepts that the applicant got married to [Ms A] in an Islamic marriage ceremony [in] June 2015 in [Suburb 1], Australia, before he was legally married to [Ms A] at [Suburb 2], Australia, [in] October 2017. Accordingly, the Tribunal does not accept that the applicant could be reasonably considered to have breached any Islamic norms based on his marriage to [Ms A]. Therefore, the Tribunal does not accept that the applicant faces either a real chance of serious harm or a real risk of significant harm due to his marriage to [Ms A] should he return to Iran in the foreseeable future.
In respect to his claim of fear of harm due to his potential status as a failed asylum seeker, the Tribunal places heavy weight on the information in the DFAT Country Information Report as detailed above. The Tribunal does not accept that the applicant was ever the subject of adverse official attention prior to departing Iran. The Tribunal accepts that if the applicant returned to Iran in the foreseeable future, he would be unlikely to attract adverse attention from the Iranian authorities. The Tribunal accepts that the applicant may face a low risk of monitoring, mistreatment or other forms of official discrimination. However, the Tribunal does not accept that the applicant faces either a real chance of serious harm or a real risk of significant harm should he return to Iran in the foreseeable future due to his status as a returnee or as a failed asylum seeker or because he has spent time in Western country. The Tribunal accepts that the applicant’s family members are in Australia and that his wife is in Australia and that his house is in Australia. However, the Tribunal does not accept that the applicant faces either a real chance of serious harm or a real risk of significant harm due to these factors should he return to Iran in the foreseeable future. The Tribunal does not accept that the applicant has a genuine fear of the Iranian authorities.
In respect to the applicant’s claims at hearing that he feared harm by the Iranian authorities because his father wrote a book (or books) or that his father was involved in festivals in Iran, the Tribunal does not accept that these are credible claims. The Tribunal does not accept that the applicant’s father wrote a book (or books) or that his father was involved in festivals in Iran or that his father was ever the subject of adverse attention from the Iranian authorities or that his father’s home was searched by police or that his father was ever accused of organising a revolution against the Iranian government or that his father was ever put in prison.
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 Safe Haven Enterprise visa.
Joseph Lindsay
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2022] AATA 1073

21 February 2022

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