1801386 (Refugee)

1801386 (Refugee) [2023] AATA 827 (8 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Hannah Gray
CASE NUMBER: 1801386

COUNTRY OF REFERENCE: Iran
MEMBER:Melissa McAdam
DATE:8 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as a non-citizen who is mentioned in s 36 (2)(a).

Statement made on 08 February 2023 at 2:42pm
CATCHWORDS
REFUGEE – protection visa – Iran – stateless – race – Faili Kurd – nationality – stateless – particular social group – young women – failed asylum seeker from a Western country – member of the family unit – education – employment – Iranian citizenship – fear of sexual violence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2; r 1.12
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 Home Affairs on 15 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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
The applicant is [an age] year old child. The applicant’s parents and older brother travelled to Australia by boat in 2011. The applicant was born in Australia in [year].
On 1 October 2015, the Minister exercised his power under s. 46A of the Act to allow the applicant’s family to lodge an application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise visa.
The applicant’s father lodged a combined application for a Protection visa with his son as a secondary applicant. After the birth of the applicant in Australia she was added to her father’s Protection visa application. The applicant’s mother lodged a separate application for a Protection visa.
The applicant’s father provided the primary claims in their combined visa application. In summary, the applicant’s father claimed they were stateless Faili Kurds who had left Iran illegally. He claimed they had experienced hardship, discrimination and mistreatment as stateless Faili Kurds in Iran. The applicant’s father claimed he was born in Iraq and had been expelled with his parents from Iraq under the former Saddam Hussein regime. He claimed that in 2009 he and his wife and the applicant went to Iraq to try to obtain Iraqi citizenship but after two years there were ultimately unsuccessful. They obtained a false Iraqi passport which they used to travel back to Iran and soon after departed on their journey to Australia, in mid-2011. The applicant’s father also claimed that they were Shia Muslims but did not practice the religion and did not adhere to the religious codes in Iran.
The mother of the applicant provided the Department with a statement on behalf of the applicant on 23 November 2017. In summary, it states:
a.She fears that if her daughter was forced to return to Iran or Iraq she would be seriously harmed because of her Faili Kurd ethnicity, statelessness, status as a failed asylum seeker returning from a Western country, and status as a female child born and raised in a Western Country.
b.She fears this harm for her daughter from the Iranian and Iraqi authorities and the Iranian and Iraqi communities.
c.Her daughter cannot go to Iran and Iraq because she is stateless and has no right to enter or reside in either country.
d.As a stateless Faili Kurd, she will be denied basic rights in both Iran and Iraq. She will not be able to be educated or lead a normal life. She will not be able to find employment nor be able to subsist.
e.She has not lived in either Iran or Iraq and has no working knowledge of these countries and their customs and beliefs. She has been born and raised in Australia, a western country.
f.She will also come to the attention of the authorities of either country if sent to Iran or Iraq as a failed asylum seeker and as a child who was not born in either country, which will place her at greater risk of harm by the authorities.
Delegate’s Decision
The delegate accepted the applicant and her father and brother are Faili Kurds. The delegate held concerns over the applicant’s father’s credibility with respect his claim to be stateless. The delegate concluded that the applicant’s father was an Iranian citizen and that the applicant and her brother were also Iranian citizens, by descent.
The delegate was not satisfied the applicants would face discrimination amounting to persecution as Faili Kurds in Iran. The delegate referred to country information which indicated the authorities were unlikely to monitor religious observance by Iranians and therefore it was unlikely it would become known that the applicant’s father was not faithful to Shi’a Islam. With respect to their claims of experiencing harm due to returning from a western country, the delegate referred to the absence of country information showing harm befalling individuals returning to Iran on the sole basis that they have returned from a western country or had unsuccessfully applied for asylum. The delegate also considered country information which showed that since the 1979 Islamic Revolution, Iranian authorities have enforced strict codes of moral ethics which all citizens adhere to. The delegate concluded that if the applicants were to fail to adhere to any of the moral ethics, any consequence would flow from the general application of law and not persecution.
Tribunal Application
Following the Department’s refusal of the visa applications the applicant’s father lodged an application for review which included both his son and the applicant.
Subsequently, the applicant and her mother engaged separate representation so the applicant’s review application was separated from her father’s review application.[1] It was not possible to combine the applicant’s review application with her mother’s review application under the Migration Regulations because their primary applications had not been combined.
[1] AAT Case Number 1801386.
Claims on behalf of the applicant have been presented by her mother, her representative and her father and his representative.
Pre-Hearing Submission
A written statement submitted by the applicant’s mother on 8 November 2022 contains the following reference to the applicant:
I fear that my children will also face harm in Iran as Kurds and as people who have lived in
Australia for most or all of their lives.
My daughter has lived all her life in Australia. In Iran my daughter will face harm at school as a
child and as a Kurd as she will be subject to corporal punishment. My daughter will have other
problems as she does not speak Farsi. She understands a few words of Farsi but mainly she
speaks in English. I mainly speak to her in Faili Kurdish, as well as Arabic and she can understand but she generally replies in English. My daughter has learnt chants from the protests she attended and from me and if she said these in Iran this would create many problems for her and our family.
In her written statement the applicant’s mother also admits that she and her family are Iranian citizens, and not stateless. She submitted a copy of her Iranian National ID card.
Tribunal Hearing
The applicant’s mother appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. The following is a summary of the information the applicant’s mother provided at the hearing, in relation to the applicant:
a.The applicant’s mother confirmed she has Iranian citizenship.
b.The situation in Iran is terrible and the authorities are killing young people. They also don’t treat Kurdish people fairly. Women are being raped too. There is no safety for her daughter there. Her daughter is used to the lifestyle here. In Iran they don’t like girls. The authorities recently announced that girls should marry at age of nine. They treat women like animals in Iran, this is what the Iranian authorities believe.
Written Submission, 7 December 2022
On 7 December 2022 the applicant’s father’s agent provided a written submission outlining the following in relation to the applicant:
[The applicant] will face a real chance of persecution and/or significant harm if returned to Iran for the following reasons:
a.Her Faili Kurdish ethnicity.
b.Her membership of a particular social group being a woman in Iran returning from a Western country where she was born and has spent her formative years.
[The applicant], as a young Faili Kurdish girl, faces an elevated risk of harm for the same reasons as her father. [The applicant’s father] instructs that as a Kurdish person, he believes in gender equality and does not agree with the dress code in Iran. If returned to Iran, he will not be encouraging his daughter to wear a hijab and will continue to protest for women, life and freedom. As outlined above, it is estimated that over 60 children have been killed since September 2022, as violence against protestors is not confined to adults. The ABC reported on Dr. Saba Vasefi, a journalist and scholar at the University of Sydney, giving evidence at a Parliamentary Inquiry into the human rights implications of violence in Iran on 28 November 2022. Dr Vasefi highlighted that plight of children, stating ‘this is my question: why Australia is looking for negotiation or (any kind of) relationship with a rapist regime, child killer regime. If one of those over 60 children, if one of them was a white child, how would Australia respond?’
UNICEF released a statement on 27 November 2022 condemning the violence against children during the public unrest in Iran. UNICEF raised specific concerns “about continued raids and searches conducted in some schools. Schools must always be safe places for children.” In our view, it is clear that [the applicant] is at risk of serious harm as Faili Kurdish girl if she is returned to Iran.
Albeit, somewhat out of date the DFAT Country Report states ‘Women’s dress a politically sensitive issue’, beyond mere clothes, the dress code for women in Iran represents the ruling theocracy and ‘hard-line sharia interpretations and conservative cultural and societal norms [that] continue to limit the extent to which women are able to participate in Iranian society.’ [The applicant] was born in Australia and has become accustomed to Australian ideas and Western cultural norms. As a young Kurdish girl, [the applicant] is clearly at risk of serious harm in Iran, which is in the midst of severe political upheaval the brink of armed conflict against Kurdish territories in Iraq.
We further submit, similar to [the applicant’s father], that her mode of return would immediately bring her to the attention of the Iranian authorities, especially as she was born in Australia has been residing in a Western country.
CONSIDERATION OF Claims and evidence
Nationality
It was initially claimed on behalf of the applicant that she and her family are stateless. However the applicant’s parents and brother have recently admitted that they are Iranian nationals. They have submitted copies of Iranian identity documents which confirm their Iranian citizenship. On the basis of these documents the Tribunal is satisfied that the applicant’s parents are both Iranian nationals and that the applicant is also a citizen of Iran by descent. The Tribunal therefore assesses her claims against Iran as her country of nationality and receiving country.
The applicant’s father claimed to have unsuccessfully tried to acquire Iraqi citizenship for himself, his wife and his son, before travelling to Australia. The Tribunal accepts that they went to Iraq in about 2009 and remained there for almost two years waiting for the results of the citizenship applications. While legally they should have been entitled to have their Iraqi nationality recognised the Tribunal accepts that bureaucratic obstacles and delays may have thwarted their plans or persuaded them to abandon their attempts. Without positive evidence regarding the outcome of their applications the Tribunal gives the applicant the benefit of the doubt that her family has not acquired Iraqi nationality and that therefore the applicant is also not an Iraqi national.
Protection Claims
The applicant is just [age] years old and has not had the capacity to present her claims herself. Claims have been presented on behalf of the applicant that she faces harm in Iran because of her Faili Kurd ethnicity; because of her westernised upbringing and lack of familiarity with Iran; and because she is a girl. These claims have been understandably generalised and speculative.
The Tribunal acknowledges that the assessment of most claims regarding future fears of harm contains a degree of speculation. However in this instance the required level of guess-work regarding the circumstances the applicant may find herself in in Iran, both presently and in the future, makes assessing the chance of harm to her in the reasonably foreseeable future difficult and based upon potentially unreliable assumptions. While it is possible to make such an assessment the Tribunal considers it unnecessary to do so as it is clear that the applicant meets the criterion set out in s 36(2)(b)(i) of the Act, based upon the following.
Membership of a Family Unit
Regulation 1.12(4) of the Migration Regulations (1994) includes in the definition of a ‘member of the family unit’ of another person (the family head) a person who is a dependent child of the family head.
Section 5(1) of the Migration Act (1958) defines that one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
The applicant is the daughter of [her mother]. The applicant is financially dependent upon [her mother] and is under [her mother’s] primary care. The applicant lives in [her mother’s] home with her older brother. The Tribunal accepts that [the applicant’s mother] is the head of the household.
The Tribunal therefore finds that the applicant is a dependent child of [her mother] who is the family head. The Tribunal finds that the applicant is a member of [her mother’s] family unit and that they are both members of the same family unit.
In her related review application[2] the Tribunal has found that [the applicant’s mother] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
[2] AAT File Number 1801631
It therefore follows that the Tribunal is satisfied that the applicant is a member of the same family unit of a person in respect of whom Australia has protection obligations under s 36(2)(a).
Conclusion
The Tribunal is satisfied that the applicant is the daughter and a member of the same family unit as her mother, [named], for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of her mother’s application. It follows that the applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as a non-citizen who is mentioned in s 36 (2)(a).
Melissa McAdam
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.
…

[2023] AATA 827

8 February 2023

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Statutory Construction

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