1801437 (Refugee)

[2024] AATA 1969

1801437 (Refugee) [2024] AATA 1969 (1 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Katie Wrigley

CASE NUMBER:  1801437

COUNTRY OF REFERENCE:                   Iran

MEMBER:Louise Nicholls

DATE:1 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the applicant brother, the applicant [Applicant 4] and the applicant [Applicant 3] satisfy s 36(2)(a) of the Migration Act; and

(ii)that the applicant mother satisfies 36(2)(b)(i) of the Migration Act, on the basis of her membership of the same family unit as the other applicants.

Statement made on 01 March 2024 at 12:09pm

CATCHWORDS

REFUGEE – protection visa – Iran – race – Faili Kurds – nationality – stateless – Iranian citizenship – particular social group – modern young women – political opinion – opposition to the government – detention – sexual assault – political activities in Australia – relationship with an Australian citizen – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 1.05

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

1. The applicants are four adult members of a family group; they are the [Applicant 2] mother, the [Applicant 1] brother and the two applicant sisters, that is, [Applicant 4] and [Applicant 3]. The applicants arrived in Australia [in] November 2011 travelling by boat from Indonesia.

2. The applicants applied for Temporary Protection (XD-785) visas in a joint application on 3 February 2016.

3. On 12 January 2018 a delegate of the Minister for Home Affairs refused to grant the applicants protection visas under s. 65 of the Migration Act 1958 (Cth) (the Act) on the basis that the applicants did not meet the requirements for the visas.

4. This is an application for review of the decisions to refuse the visas. It was lodged on 19 January 2018.

5. The applicants appeared before the Tribunal on 18 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.

6. The applicants each gave evidence about their family background, migration history and claims for protection. The applicants were represented in relation to the review and their representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION

8. The issue in this case is whether all, or any of, the applicants meet the refugee criterion, and, if not, whether they are entitled to complementary protection.

9. The relevant law is set out in the attachment.

   History of the application

10. For the sake of clarity, the Tribunal has set out a chronology of the events which have taken place since the applicants left Iran for travel to Australia.

11. In August/September 2011 the applicant mother and children began making arrangements to travel to Australia. The applicants left Iran and flew to [Country 1] and later flew to Jakarta, Indonesia. They stayed in Indonesia for [number] days and in October 2011 made contact with the United Nations High Commissioner for Refugees.

12. The applicants travelled to [a town] in Indonesia, before boarding a boat and later being intercepted by the Australian Navy and arriving on Christmas Island [in] November 2011.

13. The applicants were held in immigration detention and each attended entry interviews where they answered questions about their family details and reasons for travel to Australia.

14. In January 2012 the applicants lodged requests for Protection Obligations Determinations (POD). They were interviewed and assessed as being owed protection and released from detention in August 2012.

15. [In] December 2014 the applicants were granted Temporary Humanitarian Stay visas (UJ-449) and Bridging E (WE-050) visas.

16. On 3 February 2016 the applicants applied for Temporary Protection (XD-785) visas in a joint application. They were granted a series of bridging visas following the application and were interviewed on 14 and 15 November 2017. Their applications were refused by the delegate on 12 January 2018, and they applied for review on 19 January 2018.

    History of the claims made by the applicants.

17. The basis of the claims made by the applicants have changed since they first made claims for protection when they requested a Protection Obligations Determination in 2012. The Tribunal will briefly outline how those claims have changed since the applicants first arrived in Australia.

18. Initially and leading up to the POD the applicants all claimed that they were stateless Faili Kurds and Shia Muslims living in Ahwaz, Khuzestan Province, Iran. They made these claims in writing and in their interviews.

19. The applicants were provided with migration advice in relation to their POD applications and their representative assisted them in completing their documents.

20. These claims were repeated when the applicants applied for temporary protection visas on 3 February 2016. They repeated the claims in their applications and in their statements. The applicant brother and the applicant [Applicant 4] were interviewed on 14 September 2017. The applicant mother and the applicant [Applicant 3] were interviewed on 15 September 2017.

21. While the applicants made several claims which related to their own circumstances and experiences the applicants all claimed they were stateless Faili Kurds. The applicants claimed the applicant mother and her deceased husband were expelled from Iraq in the 1980s and the family suffered because they were Faili Kurds. They were deprived of many basic human rights and were humiliated because of their ethnicity.

22. As stateless Faili Kurds they claimed they had no identification, they all declared that they were deprived of Iranian nationality and therefore were deprived of basic and important rights and privileges like the right to work, to study, to access government health care, to register their birth and marriages. They claimed that they were targeted because of their statelessness.

23. They also claimed they feared harm as; failed asylum seekers; westernised young women ([Applicant 4] and [Applicant 3]); as ethnic Faili Kurds and for previously coming to the adverse attention of the authorities.

24. During the interviews they stated they left Iran with Iranian passports. They said that they threw away their passports in Indonesia because they were bogus passports. They also confirmed that they threw their passports away because the people smuggler directed them and all the other passengers to discard their passports and travel documents.

25. In the delegate’s decision on 12 January 2018, he found that the applicants left Iran with genuinely issued Iranian passports. He found they were able to obtain passports because they are Iranian citizens and he was not satisfied they were stateless Faili Kurds.

26. At the time they made their application for review the applicants were represented by a migration representative. Their representative engaged with the Tribunal several times in relation to changes of address and Medicare advice requests. On 3 August 2021 the Tribunal wrote to the applicants’ representative advising their applications were being prepared for allocation to a Tribunal Member.

27. On 24 September 2021 the applicants were invited to attend a hearing in the Queensland registry of the Tribunal. They subsequently requested that the matter be transferred to the NSW registry as the applicants had relocated to Sydney. In February 2023 the applicants withdrew their representative’s authority to represent them.

28. On 5 May 2023 the applicants appointed a new representative.

29. The applicants’ representative provided further material relating to the applicants’ claims. The material was provided on 13 September and 16 October 2024. The material included statements, photographs, screenshots of social media pages and copies of identity documents.

30. The most significant aspect of the new material was that all applicants admitted that they were not stateless but were Iranian citizens with Iranian identity documents. They gave reasons for why they had provided incorrect information. Further they also advised that some of the information regarding their names and dates of birth was incorrect and provided evidence to support their claims regarding the correct names and dates of birth.

31. The applicants also made new claims about their activities in Australia and how those activities might cause them to face harm from Iranian authorities if they returned to Iran now or in the foreseeable future.

    Evidence provided to support the applicants’ claims.

32. While the applicants have resiled from their claims that they are stateless Faili Kurds, they continue to claim they fear serious harm from Iranian authorities if they return to Iran now or in the foreseeable future for a number of reasons.

33. So that each applicant’s claims can be considered on the basis of their particular circumstances the Tribunal will deal with their claims separately in this decision record.

    The applicant [Applicant 4].

34. The applicant attended an entry interview held in Darwin on 7 January 2012 where she stated that she was a stateless Faili Kurd from Iran. She claimed she did not have any rights to work, hold insurance or to rent a house.

35. She also did not have any documents and this became a reason for people like her to be persecuted. She was not allowed to rent a house, and not allowed to complain to anyone. She was in danger of being raped because of her statelessness. Her movements were limited and so she remained mostly inside the house.

36. In 2003, while the applicant was in a taxi, Basij and Sepah officers stopped the taxi and accused her of being in a car with a male unrelated to her. Despite telling the officers the driver was a taxi driver, she was taken to a police station. She claimed that she was sentenced to two lashes. From then on she became scared of the authorities as she was only [age] years old at that time.

37. In a later statement she reiterated her claims she was a stateless Faili Kurd, a Shia Muslim born in Ahwaz, Khuzestan Province, Iran.

38. She recounted her parents’ history of expulsion from Iraq in the 1980’s and made claims about the treatment of the family because they were Faili Kurds.

39. She repeated her claim that she was seized in 2003 by Sepah on suspicion of being in a car with an unrelated male and taken to a Sepah base where she was abused and humiliated. She was later sentenced to two lashes. She claimed she was not able to defend herself because she was stateless.

40. She described another incident which took place sometime later. Before the applicant married a person called [Mr A], she travelled in his car and their car was followed. She got out but was arrested by two men who identified themselves as police officers. She was taken by the two Iranian officers and raped. About 6 or 7 months after this incident the applicant married [Mr A] according to Islamic custom. However, she claimed their marriage could not be registered because [Mr A’s] wife did not agree to the marriage.

41. The applicant claimed she experienced hardship and severe discrimination because of her statelessness. The applicant fears that she will remain vulnerable should she return to Iran. She fears that she will be persecuted due to her ethnicity, religion, imputed political opinion and member of a particular social group being composed of modern young females.

42. In her application for a temporary protection visa the applicant repeated her earlier claims and emphasised that as a woman in Iran she was always strictly monitored, and she did not have rights enjoyed by males. She claimed she was sexually abused by the Basij before she married her husband. The applicant also said that women like her do not have rights in Iran.

43. On 13 September 2023 the applicant provided a statement which set out details about her identity, correct name and her current claims for protection.

44. In that statement the applicant admitted that in her previous application she had claimed to be stateless however this information is incorrect. She stated that her parents were born in Iraq and expelled to Iran in the 80s and are Faili Kurds.

45. The applicant has an Iranian birth certificate and national identity card a copy of which she provided to the Tribunal. She stated she was born on [DOB 1] in Ahwaz, Iran. She provided her date of birth as [DOB 1a] when she arrived in Australia because she wanted to be younger. She explained that her family name is [Family name 1] and she is known by the names [same first name with combinations of other names]. Upon arrival in Australia her family combined her father’s name, [specified] and her grandfather’s name [specified] as the new family name. The applicants birth name was [Alias A] which [has an Arabic meaning]. She did not like the name and did not use it because it identified her as a Faili Kurd.

46. She did not disclose her Iranian citizenship when she came to Australia because she heard rumours that people would be returned to Iran if they disclosed they were Iranian citizens. She was scared of being returned to Iran because of the things that happened to her and she wanted to start a new life in Australia. She acknowledges that lying about her identity was wrong and she is sorry about providing incorrect information.

47. With respect to her claims, she stated that her mother was religious, and her father was an atheist. She did not practice Islam and she never prayed or attended the mosque. In Iran she was judged for the way she dressed and presented herself. She claimed there were several incidents where she was physically and sexually assaulted by male officers and those claims are detailed in her 2012 statutory declaration.

48. From the time and she was a teenager she was unhappy with how women were subject to religious rules and expected to wear the hijab. When she was about [age] she told family and friends that she wished to be known by the name [Applicant 4’s first name].

49. In about 2021 the applicant asked a friend in Iran to help her have her identity documents reissued to submit as evidence of her Iranian citizenship. She paid her friend the equivalent of $1000 AUD to begin this process but not completed as she was required to provide an updated photo of herself in a hijab. She refused to wear a hijab because it represented bad memories of the harm she suffered in Iran and the continued oppression of women in Iran. When she left Iran she removed her hijab and has not worn it since.

50. If she returned to Iran she would not wear the hijab and her time in Australia has reinforced her belief that women should have a choice as to whether they wish to wear a hijab.

51. After she arrived in Australia, she felt safe and free to dress how she wanted. In around 2012 she started sharing posts on [social media] in support of Kurdish women fighting against religious extremist groups in the Syrian war because her opinion was that they were brave for fighting for women’s rights under Islamic rule. A friend called her and asked her why she was posting these things. Her friends and her mother urged her to stop sharing content in support of Kurdish women and she deleted these posts.

52. In around 2016 she attended her first protest in Sydney to support the old Shah of Iran because she respected the way he governed Iran when he was in power. She heard about the Shah from her father when she was growing up, but it was only when she was in Australia that she started to become more interested and learnt about the Shah. She saw the Shah was someone who was educated and respected women’s rights. During his time in power in Iran, women had the choice of whether or not to wear a hijab and he supported the education of women in Iran. Her mother was scared and told her not to attend the protest but she attended anyway.

53. When Mahsa Amini was killed in 2022 she was sad and angry for the heartless treatment that led to her death. Mahsa was a Kurdish woman who reminded the applicant of her own life in Iran. She felt it was her mission to speak out to protest against the Islamic regime which is killing young women and men who are fighting for change. She began attending protests regularly about once a week in Brisbane with her friends and her sister [Applicant 3].

54. The applicant shares her political views on [specified social media] and posts photographs of the protests she attends to promote women’s rights and Kurdish people’s rights in Iran. She referred to a photograph of her protesting for women’s rights in October 2022 in Brisbane which was featured on [Media 1]. The last protest she attended was [in] September 2023 in [a specified location] on the anniversary of Mahsa Amini’s death.

55. Even though the situation in Iran has not improved since Mahsa Amini’s death she has continued to attend protests because she hopes that the Islamic regime can be removed and for Iran to be a free and progressive country.

56. She has been involved in Iranian community groups in Australia and was a member of [Community Organisation 1] from 2016 to 2018. Other members shared their anti-government views on social media and saw members at the anti-regime protest she attended in May.

57. The applicant claimed she was a member of an Iranian [group] in Brisbane from 2020 to 2021 to assist refugee communities in [Brisbane]. Her role involved calling and speaking with Iranian refugees who had recently arrived in Australia. She worked with many Bahai people including [a previous official] (name supplied) and has many Bahai friends. The Iranian Government opposes the Bahai faith because it is not Muslim. She thinks she could be known for her association with this person who has posted many photos of them together on [social media].

58. She fears that her anti regime activities may have been monitored by Iranian authorities.

59. She also fears harm due to her relationship with her current partner. She stated that she stayed over at his house for 1-2 nights at a time and fears this could cause trouble for her in Iran because she would be known to the authorities for not being religious.

60. The applicant provided a copy of her Iranian identify certificate and English translation, photographs showing her at demonstrations against the Iranian government in Brisbane, including a photograph of the applicant published on [Media 1] [in] October 2022, one showing the applicant with a banner “[specified]”, two showing the applicant holding a [specified flag]. She also provided photographs of her attending protests in Sydney in 2023. She provided screenshots of her [social media] page with “[specified]” slogans and depictions of Mahsa Amini, women’s protests and the former Empress of Iran, screenshots of her [other social media] account which showed her attending protests, a [video] posting of the applicant at a poetry event, a photograph of the applicant with members of the [Iranian group] in Brisbane in 2020 and photographs of the applicant with her fiancé.

61. At the Tribunal hearing the applicant confirmed the details of her age, name and identity as set out in her 2023 statement. She provided further details about her life in Iran before she came to Australia. She also gave details about her employment and life in Australia. She has lived in Brisbane and is currently living in Sydney and is in a long term relationship with her partner.

62. She stated that she feared returning to Iran because it was unsafe for women like her. She also stated she had been active in protest rallies and on social media while in Australia. She has been part of the “[specified]” protest rallies and had been photographed during those rallies. She had also been active on social media with many anti government postings. She first attended a protest in Sydney in 2016 and many protest rallies in Brisbane in 2022 after the death of Mahsa Amini. She had attended those protests to show her support for the rights of women in Iran. She wanted to show women in Iran that they were supported by women overseas.

1. She attended recent protests in Sydney to commemorate the death of Mahsa Amini. She claimed that if she returned to Iran she would be at risk of harm for reasons of her involvement in anti-government protests in Australia. When asked how the Iranian authorities would know of her involvement, she stated that the government has many informants in Australia who report back to the Iranian government about the activities of Iranians in Australia. She is aware they also monitor the media and social media. She also was concerned about her friendship with a prominent Iranian Bahai (name supplied) in Australia.

2. When questioned about whether she had been mistreated in Iran she was reluctant to provide details but stated she had been assaulted by Iranian authorities once when she had been detained.

3. She stated that she had some extended family living in Iran and contacted them from time to time. She had [anage]-year-old cousin who had been involved in the Mahsa Amini protests in Iran. Her cousin had been arrested and forced to sign a promise that she would not take part in any future rallies or protests.  

4. The Tribunal accepts that the applicant is an Iranian citizen of Faili Kurdish ethnicity.

5. She initially made claims that she had been detained and assaulted by the members of the Iranian security authorities and gave some detail in her earlier statements. At the Tribunal hearing she was somewhat reluctant to give details of the mistreatment she previously suffered in Iran but claimed she had been arrested several times. When she was [age] years old she claimed she was arrested and assaulted.

6. The Tribunal accepts that the applicant had encounters with security authorities in Iran which may have involved an assault. However, the Tribunal does not accept that the applicant suffered any ongoing mistreatment following the alleged assault or that if she returned to Iran she would face a risk of serious mistreatment arising from the circumstances surrounding that encounter. However, it is understandable that she would feel aggrieved by the mistreatment and that she would be wary and fearful of what might happen to her as a woman in Iran if she returned.

7. The Tribunal accepts the applicant shared posts about her opposition to the Iranian government in 2012 on an unrestricted page on [social media]. It accepts that she attended a protest in 2016 and from 2022 attended protests in Brisbane on a regular basis. After she moved to Sydney in 2023 the applicant attended protests in Sydney. The applicant gave written and oral evidence to this effect supported by credible photographs of herself at a number of protests. There were photographs of the applicant which were published on [Media 1] and [their social media] page.

8. The Tribunal also accepts her evidence that she has a public [specified social media] (active and deactivated) profile where she has posted about the situation for women in Iran and her support for the ‘[specified]’ protests. This evidence is supported by screenshots of some of her posts.

9. The applicant claimed and the Tribunal accepts that she is friends with a high-profile member of the Iranian Bahai community in Australia. She provided photographs to support this evidence.

10. The applicant has also made claims she would face serious harm due to the nature of her relationship with her partner, the failure to wear the hijab in Australia, her public promotion of the [specified flag] and her friendship with a high profile Bahai of Iranian background. 

    The applicant [Applicant 3].

11. At the entry interview the applicant claimed that she left Iran because she was stateless and had no documents. She claimed she could not continue her studies, could not work, marry an Iranian citizen and claimed she had no identity documents. She claimed there were no human rights for Kurdish Failis. She stated she was too young to work in Iran but her family members (brothers and sisters) could not get jobs.

12. She stated the family suffered discrimination as they were Kurdish. Members of the Persian community used to say they were Kurdish and should not be living in Iran. When they moved around, they would be stopped on the streets and given a hard time for the way they dressed. They were questioned and harassed by Iranian people and the Iranian authorities.

13. She stated she feared she would be put in jail if she returned because she left Iran illegally and she is stateless.

14. On 15 November 2017 the applicant attended an interview with the delegate. She repeated the claims made in her statement, maintaining she was a stateless Faili Kurd with no rights in Iran. She stated that she did not wish to return to Iran because she was stateless but also she was concerned that women in Iran do not have status and are not respected. Being a Faili Kurd made the situation worse. She claimed that she and her siblings could not work legally and did not have the entitlements of a citizen.

15. On 13 September 2023 the applicant provided a statement which set out details of her identity, her correct name and current claims for protection.

16. She stated that in her initial protection visa application her name, date of birth and place of birth are incorrect. She was issued a Shenasnameh at birth and her Iranian documents contain her correct details.

17. She stated that when her family arrived in Australia in 2011, they provided their family name as [Family name 2]. [Specified name] was her father’s name and [another name] was her grandfather’s name. They provided [Family name 2] as the family name instead of [Family name 1] because they were previously bullied by the Iranian authorities, the community and schools for their Kurdish family name. They used [Family name 2] as their family name in Australia. In Iran, they were known by the family name [Family name 1].

18. She claims the family did not reveal their Iranian citizenship when they arrived because they were told they had a better chance of staying in Australia if they said they were stateless. She also stated she had poor memories of life in Iran. The had a difficult time in Iran as Kurds, they could not wear their traditional clothes, they were forced to speak Farsi and could not speak their own language.

19. When she was young her sister [Applicant 4] was arrested by the Iranian authorities, but the applicant was not told the reason. Her sister, [Sister A variant] and her brother, [Applicant 1], were also once arrested by Basij officers and questioned about their relationship to each other. Her brother [received a disability] as a result of this incident. These incidents involving her siblings made her fearful of the Iranian authorities because she was scared of being arrested, questioned and harmed in a similar manner.

20. After she arrived in Australia, she removed her hijab. She believes the hijab represents the control and dictatorship of the Iranian government and that wearing the hijab should be a choice. She has been living in Australia for over ten years and has adopted Australian culture. She is independent and has freedom in her appearance and in her speech.

21. In 2020, she was featured in a music video with her friend [Mr B]. She met him through work, and he knew that she studied [course 1] in 2015 and was interested in acting. He invited her to be in a music video with him which can be viewed on [social media]. The music video includes her drinking wine and not wearing a scarf. Her name is in the credits. She became involved in these videos because she wanted acting experience. She is concerned that if she were in Iran, she may be punished for participating in these videos.

22. When the applicant heard of Mahsa Amini’s death in September 2022 she was angry towards the Iranian government not just for Mahsa Amini but for all young people who had been killed or mistreated by the Iranian government for opposing its policies. After Mahsa’s death she felt compelled to act on her opinions and started attending protests in Brisbane from October 2022. She sees the Iranian regime as cruel and racist for its treatment of Kurds and Arabs. She attended anti-government protests about once a week or fortnight until she moved to Sydney in April 2023. She held various anti Iranian government signs and chanted slogans at these protests.

23. In Sydney she attended an anti-regime protest at [a location] [in] May 2023. She stated she planned to attend another [in] September 2023. She is active on [social media] and uses it to share information about rallies and photos and videos of protests. She expresses her views against the Iranian Government and its treatment of Kurdish people and women on [social media] because she wants to be an active part of the conversations surrounding the situation in Iran and to support the movement against the Iranian Government. She also shared photos on [social media], but her account is no longer active.

24. She also noted that she had previously been in a relationship with a person (named) who was of Iranian background but is now an Australian citizen. He is a Freemason and she attended [several events] with him between May and November 2022. She stated Freemasonry is illegal in Iran and Freemasons are arrested and can be executed. The applicant stated her past relationship with her former partner is well known by many people and if she returned to Iran, she would be at risk of serious harm from Iranian authorities for have a relationship outside marriage, being associated with a Freemason and having no religion.

25. The applicant provided copies of her Iranian identity documents, photographs showing her attending protests, holding a [specified flag], holding a photograph of Mahsa Amini and a child killed during the protests, screenshots of her [social media] account referring to anti-government protests and topics, photographs of the applicant and her former partner at Freemason functions, screenshots of the music video published in 2020 and photographs of the applicant wearing clothes which would be forbidden in Iran.

26. At the Tribunal hearing the applicant gave evidence that she is [age] years old and of Faili Kurdish ethnicity. She is an Iranian citizen and attended school in Iran. After she finished high school, she studied at a college for [period]. She attended English language classes in Iran when she was about [age range] years old.

27. The applicant arrived in Sydney in 2012 and the family lived in community detention until 2014. The applicant explained that she initially had a strong interest in acting and [performing] and completed a [related] course and participated in some video productions. She has also worked as [an occupation 1], [an occupation 2] at [several locations]. She is also working as an [occupation 3] and hopes to complete her [related registration] soon.

28. She stated that nothing particularly bad happened to her in Iran although she was aware of incidents involving her sisters and her brother. However, she stated that women in Iran have no human rights and are subject to harassment on a day-to-day basis. She grew up in a Shia household but does not follow the religion and just believes in God.

29. She referred to her participation in a music video in which she was drinking wine and there was swearing and love scenes which would be forbidden in Iran. This video is available [online] and anyone can access the video online.

30. She started attending protests in 2022 in Brisbane with her sister because she was very upset about what happened to Mahsa Amini. She and her sister were photographed holding the [specified] flag and those photographs have been posted on [social media] in a public account. Further she has shared her opinion of the Iranian government online. She claims that many people shared her views online and supported her.

31. When asked what she thought might happen to her if she returned to Iran she stated that anything is possible. She may be targeted by Iranian authorities for her outspoken views on women and also because of her former relationship with a member of the Freemasons. She stated Freemasons are not allowed in Iran and there have been reports of them being assassinated and executed.

32. The Tribunal accepts that the applicant is an Iranian citizen of Faili Kurdish ethnicity.

33. The Tribunal accepts the applicant has attended protests in Brisbane on a regular basis from 2022. After she moved to Sydney in 2023 the applicant attended protests in Sydney. The applicant gave written and oral evidence to this effect supported by credible photographs of herself at a number of protests.

34. The Tribunal also accepts her evidence that she has a public [social media] account where she has posted about the situation for women in Iran and her support for the ‘[specified]’ protests. This evidence is supported by screenshots of some of her posts.

35. The applicant claimed and the Tribunal accepts that was in a relationship with a member of the Freemasons. She provided photographs to support her evidence. The Tribunal accepts Freemasonry is banned in Iran[1].

36. The applicant has also made claims she would face serious harm due to the nature of her relationship with her partner, the failure to wear the hijab in Australia, her public promotion of the [specified flag] and her friendship with a high profile Bahai of Iranian background. 

    The applicant brother.

37. At the entry interview the applicant claimed he was stateless and not accepted by either Iran or Iraq. He claimed that on 13 April 2010 he was walking with his sister [Sister A] when they were stopped by the Basij at a checkpoint where they were asked for their identity cards but they did not have any. The Basij did not believe that they were brother and sister and the applicant was punched by the Basij when an argument broke out. The [applicant received a specified disability]. The applicant was subsequently detained for [number] days.

    [1] ‘Freemasonry iv. The 1979 Revolution’, Encyclopaedia Iranica, 31 January 2012, CX0D38E8E21195; ‘Guardians of thought: limits on freedom of expression in Iran’, Middle East Watch, 1 August 1993

100.   The applicant attended a further interview on 12 January 2012. He stated that he was a stateless Faili Kurd, a Shia Muslim born in Ahwaz, Khuzestan Province, Iran. His parents were expelled from Iraq in the 80s and his family suffered because of being Faili Kurds. They were deprived of many basic human rights and humiliated because of their ethnicity.

101.   On 13 March 2010 the applicant was walking with his [Sister A]. The Basij confronted the applicant and asked for his identity document. The applicant said he left his white card at home, but the Basij did not believe him and suspected that he had an illicit relationship with the woman with whom he was walking. He explained that they were siblings, but the Basij did not believe him and he and his sister were verbally abused. The applicant was physically assaulted, and he retaliated and punched the Basij. The Basij then [hit him] and [he received a disability]. He was later arrested and brought before a court and sentenced to [number] days jail. He was also ordered to pay 1 million tomans.

102.   The applicant also suffered discrimination and was deprived of many basic human rights because he was stateless. He was unable to obtain identity documents and citizenship, could not receive medical treatment, could not work legally, open a bank account, travel freely and get married legally.

103.   Many years ago the applicant’s father was hit by a car while he was walking and he died following that accident. The family sought compensation, but nothing was done for them by the authorities.

104.   The applicant fears will be harmed on return to Iran as he has already come to the attention of the authorities because of his argument with the Basij and because of his subsequent detention.

105.   On 3 February 2017 the applicant applied for a temporary protection visa. In his application he put forward the same claims he presented in his earlier POD request. The applicant was interviewed on 14 November 2017. At the interview the delegate discussed the manner of the family’s departure from Iran. The applicant stated that they obtained false passports through connections with a policeman friend. He reiterated his claims that he was a stateless Faili Kurd. He referred to the fight he had with authorities and the problems he had with the Basij.

106.   Following the application for review the applicant provided a statement dated 13 October 2023 which set out details of his identity, correct name and current claims for protection.

107.   The applicant stated that in his previous application he had claimed to be stateless however he admitted this information is incorrect.

108.   He stated that his parents were born in Iraq and expelled to Iran in the 80s and were Faili Kurds. However, he stated that he and his family have Iranian citizenship. He provided details of his identity, his name and date of birth. This was supported by copies of his Iranian identity documents.

109.   He stated that although he was not stateless, he still suffered discrimination in Iran as a Faili Kurd and had been mistreated in Iran. The events he referred to in his previous statement regarding being beaten by the Basij, his [disability] and his imprisonment and fine did occur as claimed.

110.   He stated that he faced discrimination in terms of the work he could do and treatment from the authorities. The family’s Arabic was different, and they were identified by others in the community as Faili Kurds.

111.   The applicant claimed that he joined protests against the government of Iran in Canberra and Sydney and he has expressed his opinions against the Iranian government online. He referred to [social media] posts as evidence of his online activity.

112.    He does not follow any religion, does not attend the mosque and does not consider himself to be a Shia Muslim. If he was asked about his religion in Iran he would say he does not believe in religion and is not a Shia Muslim. He fears he could be harmed because of this.

113.   He speaks multiple languages including Arabic and has been previously harmed by the Basij and will have a negative profile in Iran due to his past imprisonment. He fears the Iranian government may believe he is a spy because of his past, his ethnicity as a Faili Kurd and due to his and his sisters’ political activities in Australia. He stated it was not unusual in Iran to be punished for what other family members have done. His sisters are very active in their political activities both in attending protests and online activities and they do not wear the hijab.

114.   The applicant was in a relationship with an Australian citizen in [year]. As a result of that relationship the applicant and his girlfriend had a child, and his son is now [age] years of age. He and his former girlfriend are not in a relationship anymore but he sees his son from time to time. The mother of his son is married.

115.   The applicant provided copies and English translations of his Iranian identity card, his identity certificate and his military exemption card. He provided screenshots of posts of his [social media] accounts but some of these did not show the date and account holder.

116.   At the Tribunal hearing the applicant stated he was [age] years old and confirmed the personal details he had set out in his 2023 statement. He told the Tribunal that he attended primary school for a few years in Iran but after [grade] he stayed at home with his family. When he got older he started working as [an occupation 4], as a tradesman and was also involved in selling things.

117.   His father was [an occupation 5] in Iran and passed away in a road accident in about 1985 or 1986. He has [specified family members] who are all living in Australia. He and his former girlfriend have a son aged [age] years old and he sees his son once every month or two. He is working in Australia in a [business].

118.   He told the Tribunal that he was a Faili Kurd and brought up in the Shia Islam tradition but did not regard himself as a Shia now.

119.   The applicant left Iran due to a conflict with Iranian security authorities about two years before he came to Australia. He stated that he and his sister were stopped at a checkpoint where they were harassed, and his sister was criticised for not having good hijab. A fight broke out and he was [assaulted] and as a result [he received a disability]. He was taken to hospital but they could not [avoid the disability]. He was in hospital for about a week after the incident and then was detained for about [number] days because he had fought with the security forces. He went to court and was fined 1 million toman and was released after the fine was paid.

120.   He told the Tribunal that the assault on him by security forces was one of the reasons he wanted to leave Iran. The other was that, as a Faili Kurd, he was treated like a second-class citizen and suffered discrimination.

121.   He fears returning to Iran because he does not believe in religion and has posted things on [social media] critical of the Shia religion. He believes the Iranian regime is the worst in the world and he wants people in Iran to understand that they are not free.

The applicant mother.

122.   At the entry interview the applicant mother stated that she left Iran because she was concerned about future of her children. She stated they were humiliated and had nothing in Iran, so they came to Australia. She stated that on one occasion her son and daughter were together and did not have anything to prove they were siblings, so the Iranian authorities [attacked her son] and he [received a disability]. They also detained him. She stated they had no identification (ID) and tried many times to get ID but were unsuccessful. She stated they could not get ID because she was from Iraq and a Faili Kurd. She also referred to her husband’s death in a car accident.

123.   The applicant mother attended an interview on 17 January 2012. She reiterated the claim she made at her entry interview that she was a stateless Faili Kurd, she had been born in Baghdad in Iraq. She claimed she was born to stateless parents at the time of her birth and remained stateless before being expelled from Iraq in the 1980s. The Iraqi authorities refused to grant her citizenship because she was a Faili Kurd. When she was expelled to Iran, she was a young woman and deprived of many basic human rights such as studying legally, accessing government and medical facilities, working legally, travelling freely and being able to legally marry her husband. Her children suffered because of being stateless Faili Kurds.

124.   Her son was severely beaten by the Iranian authorities and [received a disability]. As things got worse for Faili Kurds her children decided to leave the country. As it was not possible for her to stay by herself as her husband had passed away, she joined her children. She fears she will face severe discrimination and deprived of many basic human rights for reasons of being a stateless Faili Kurd if she returns to Iran.

125.   The applicant lodged her application for a temporary protection visa in February 2017 and put forward essentially the same claims as she presented in her earlier POD request. The applicant mother attended an interview with the delegate on 15 November 2017. She claimed she was born in Iraq and removed by the Iraqi government to Iran because she was a Faili Kurd. She stated she thought she was about [age] years old at the time but could not remember the details of her travel from Iraq to Iran.

126.   Following the applicant’s application for review she provided the Tribunal a copy of her statement dated 14 October 2023.

127.   She stated she was born in Baghdad, Iraq but does not know her exact date of birth. Her parents were refugees from Iran to Iraq but she does not think they became Iraqi citizens. As far as she was aware, they had Iranian documents in Iraq and she has provided a copy of the identity certificate from when she was a child.

128.   The applicant mother stated that she did attend school in Iraq but when she was in her [age range] her family were expelled to Iran and were taken to a detention camp in Shiraz. She stated as her parents were Iranian they could get documents in Iran and she personally obtained her national identity card from the authority in Ahwaz. She provided details of her name as it is known in the Arabic and Faili Kurd community and her other name as it is known in the Persian community.

129.   She acknowledged that she had given incorrect information to the Australian authorities that she and her family were stateless. She is sorry for providing incorrect information and stated she gave incorrect information because she listened to others about what they should do.

130.   In Iran their family was seen as lower than others because they were Faili Kurds. She could not speak the Kurdish language or wear Kurdish traditional dress and when she was outside the house she would have to speak Farsi or people would bully her or not serve her.

131.   The family could not get any compensation when her husband was a victim of a vehicle accident because they were seen as lower than other members of the community.

132.   She is worried about going back to Iran because she is an old woman and her children have been protesting against the Iranian government and are known on social media. The situation in Iran is tough and everyone knows the current situation with the Iranian regime taking action against people who protest about what happened to Marsa Amini. She fears if she is forced to return to Iran she will be arrested and her daughters and son may be killed.

133.   In Australia she lives with her children and relies on them to look after her including to drive her around, take her to medical appointments, shop for her and her daughter [Applicant 3] financially supports her.

134.   At the hearing the applicant mother stated she was [age] years old and was born in Iraq. She and her family were expelled from Iraq and went to live in Ahwaz in Iran. She suffered discrimination as a Faili Kurd even though she had Iranian citizenship. About 15 years ago her husband passed away following a road accident.

135.   The applicant’s mother claimed that if she returned to Iran now she fears she would be jailed because she had gone to Australia. She claimed she would be interrogated at the airport about where she had been and was not sure what would happen to her. She explained that her children had been attending protests in Australia and the Iranian authorities could become aware of that. She believed they would abuse her and severely treat the family if they returned. She would be subject to interrogation and punishment in Iran.

136.   She is currently living with her children who provide her with full financial support as she does not receive any payments from the government. They drive her around and taken to medical appointments.

137.   She claims she was stateless when she first arrived because other people told them to say they were stateless because it would give them a better chance of being accepted as refugees. She and her family would like to live with freedom.

Post hearing submissions

138.   At the hearing the applicants’ representative requested further time to make written submissions. Those submissions were provided to the tribunal on 22 January 2024.

139.   The Tribunal has broadly summarised the submissions as follows.

140.   The members of the family each claim they fear harm in Iran on the basis of:

·Their Faili Kurdish ethnicity.

·Their imputed pro-Kurdish and anti-government political opinions due to their ethnicity and gender.

·Their actual pro Kurdish, pro-democracy, pro-feminist and anti-government political opinions in relation to the Iranian regime.

·Their anti-government political activism and activities in Australia including attending rallies, appearing in publicly available music videos and posting publicly on [various social media] which puts them at risk in Iran today.

141.   The representative summarised the evidence each applicant gave at the hearing. Further the representative set out detailed country information on the monitoring of behaviour outside of Iran by Iranian authorities including on the incidence of foreign surveillance, fear of retribution for protesting in Iran, the situation for political dissidents in Iran, the impact of their Faili Kurdish ethnicity and their pro-Kurdish political opinion.

142.   The representative also submitted that the reasons for the applicants’ political protests and online activities since coming to Australia has resulted from their ethnicity, gender and political opinions. She submitted that their actions have not been done with the goal of becoming refugees in Australia but out of a deep-seated dissatisfaction with the Iranian regime.

Do the applicants meet the refugee criterion?

143.   The Tribunal accepts that the applicants are all of Faili Kurdish ethnicity and belong to the same family group. It accepts that they are mother, two adult daughters and one adult son. They provided copies of their Iranian identity documents which support this claim and they each gave written and oral evidence to that effect. From the time of their arrival in Australia the applicants have consistently claimed to belong to the same family group.

144.   The applicants arrived in Australia by boat [in] November 2011. At the time of their arrival, they did not hold Australian visas.

145.   The Tribunal accepts the applicants’ later statements and evidence that they are Iranian citizens and they falsely claimed they were stateless when they arrived in Australia in 2011 and continued to make those assertions until they made statements to the Tribunal in September and October 2023 acknowledging their Iranian citizenship.

146.   Each claimed that they falsely stated they were stateless because they had been advised by others that they had a greater chance of remaining in Australia if they claimed they were stateless. This may be so; however no attempt was made to explain why the correct information was withheld from the Department and the Tribunal until September/October 2023.

147.   The statements of the applicant brother [and Applicant 4] and [Applicant 3] attempt to explain discrepancies in their names and their earlier claims regarding their respective dates of birth. The Tribunal has considered the identity documents and the written statements and accepts the later evidence of their correct names and dates of birth. The earlier discrepancies are not necessarily relevant to the determination of whether the applicants are owed protection but are part of the consideration of the overall context of the current claims.

148.   The Tribunal has considered the claims made by each applicant and determined them based on the evidence relating to that applicant.

[Applicant 4]

149.   Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is satisfied that if the applicant [Applicant 4] returns to Iran now or in the foreseeable future she faces a real chance of persecution for reasons of her anti-government political opinion.

150.   As set out above, the Tribunal accepts the applicant has been involved in protest activities against the Iranian government, particularly in relation to its treatment of women and women protesters in Iran. It also accepts that the applicant has been involved in the criticism of the Iranian government in her publicly accessible social media accounts.

151.   Having heard the applicant give oral evidence on her motivations for her involvement in physical and online protest activities it considers that she has engaged in these activities because she has a genuine commitment to the protest movement in Iran and is concerned for the treatment of women and Kurds in Iran. It does not consider that the applicant has engaged in these activities solely for the purpose of strengthening her claim to be a refugee.

152.   Country information indicates that the Iranian government does not tolerate dissent. Individuals who repeatedly post content critical of the regime, its institutions or policies or who are deemed to be pushing moral boundaries may attract adverse attention from the authorities, including individuals based abroad[2]. Country information available to the Tribunal indicates that the Iranian authorities monitor online content including social media although the extent of that monitoring is unclear.

[2] ‘DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, para 2.127,

153.   The Department of Foreign Affairs (DFAT) reports in July 2023[3]

2.127 The authorities monitor online content, including social media. Individuals repeatedly posting content that is openly critical of the government, its institutions and policies or deemed to be pushing moral boundaries may attract adverse attention, especially if the content goes viral. This includes individuals based abroad. In 2019, sources told DFAT that Iranians with links to Iran-based foreigners are more likely to have their social media accounts monitored. To avoid detection, persons critical of the Islamic Republic on permitted social media platforms may use aliases to conceal their identity.

2.128 Given the high volume of social media interaction, most of which is unlikely to be of interest to authorities, it is unlikely that every social media user in Iran has their social media comprehensively monitored. Users with a public profile (including with large social media followings, particularly on Instagram) or who are politically active and post about politically sensitive topics (such as minority rights or about topics that are critical of the government) are more likely to be monitored. Iranians with a public profile in Australia may also have their social media presence tracked by the Iranian government. DFAT assesses that journalists, both print and online, who report on protests, sensitive topics or other criticism of the government face a moderate risk of arrest.

[3] DFAT Country Information Report Iran 24 July 2023.

154.   In October 2018, Iranian authorities announced nearly 75,000 people had been arrested for online activities, including criticism of the government[4]. Treatment of those arrested in recent years has reportedly included torture, flogging, multiple years in prison, prosecution for publishing propaganda, threatening national security and blasphemy, being “disappeared”, or summoned for questioning and released without charge[5].

[4] ‘Freedom on the Net 2020 - Iran', Freedom House, 14 October 2020.

[5] 'Freedom on the Net 2023 - Iran', Freedom House, 4 October 2023; ‘Country Policy and

155.   In February 2021 the Research Directorate of the Immigration and Refugee Board of Canada noted [6]

When asked whether Iran monitors overseas anti-government activities, the retired Professor responded that Iran's government "sends people as agents to other countries" (Retired Professor 25 Jan. 2021). The Assistant Professor indicated that the government "will try to find [anti-government activists] inside and outside of the country" and that the intelligence agency will help gather information (Assistant Professor 23 Jan. 2021). The same source noted that Iran uses refugees to monitor other refugees outside of the country (Assistant Professor 23 Jan. 2021). A December 2019 Associated Press (AP) article reports that in December 2019 an Iraqi man was charged with spying and was sentenced to two and a half years in prison for collecting information about Iranian refugees in Sweden, Denmark, Belgium, and the Netherlands (AP 20 Dec. 2019).

[6] Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)

156.   In March 2023 the Research Directorate of the Immigration and Refugee Board of Canada reported on the monitoring of Iranian citizens outside Iran[7]. Noting several sources, it reported that widespread monitoring of Iranians abroad takes place through a number of Iranian agencies which includes both physical monitoring of individuals and monitoring of social media, television and protest activities. With respect to members of the Iranian diaspora in Canada the report notes that monitoring of very politically active persons takes place but can involve ordinary people who might not engage in politics every day but may do so from time to time. Iranians living abroad have been harassed and threatened online by social media accounts associated with Iranian authorities.

[7] Iran: Monitoring of Iranian citizens outside of Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021- March 2023) 2 March 2023 IRN 201321.E ;

157.   The report also noted that on return to Iran some citizens whose activities abroad have been monitored have been questioned, their passports retained and are instructed to return for additional questioning.

158.   A recent media report[8] also noted that

Members of the Iranian-Australian community have told SBS News that incidents of foreign interference have rapidly escalated since members of the community organised and held protests in solidarity with human rights activists in Iran.

"The regime's spy networks are quite strong and quite active in Australia," Hosseini said. "They infiltrate the protests, openly taking multiple photos of activists.

"We've had protesters assaulted here in Australia, we've had protest organisers followed and their cars have been vandalised. "It's no coincidence."

Professor Dara Conduit, a Middle East specialist at the University of Melbourne, said most foreign interference from Iran is centrally organised, through official government bodies and the Islamic Revolutionary Guard Corps (IRGC).

"The regime is very paranoid, and it distrusts other states, it distrusts its neighbours, and it distrusts its diaspora," Conduit told SBS News.

"There are three key ways Iran has carried out foreign interference: targeted assassination plots, threatening of family members of diaspora members, and the third key way is the use of technology."

[8] ‘They tried many times to corrupt me’ .Australians speak out against foreign spies; 29 February 2024;

159.   Iranians have been subject to adverse treatment, including arrests and imprisonment, following their return to Iran for their online activities whilst abroad, particularly those involving the expression of anti-regime sentiment[9].

[9] 'The State of Surveillance in Iran’s Cyberspace', Shams, A, Article 19 (United Kingdom), 14 May 2015, 'Freedom on the Net 2014 – Iran', Freedom House (United States), 2 December 2014, p. 12, 'Iran is world’s leading jailer of female journalists and netizens', Reporters Without Borders (France), 28 July 2014.

160.   Given the Tribunal accepts that the applicant has engaged in physical and online protest activities it considers that she may have been monitored in Australia and could be at risk of serious harm upon her return to Iran.

161.   The Tribunal has noted country information which indicates that individuals with a public profile who are politically active are more likely to face harm than individuals with a low profile and not all online media content is monitored. Further authorities pay little attention to failed asylum seekers on their return to Iran and DFAT understands that their actions including social media posts about sur place activities are not routinely investigated unless their activities are visible on social media and tracked by the Iranian government.

162.   However, it appears that the Iranian government’s attitude to protest on sensitive issues has hardened further since the protests which took place in 2022. On 16 September 2022, Jina Mahsa Amini, a 22-year-old Iranian woman from the Kurdish minority, died in Tehran in police custody three days after her arrest for allegedly failing to comply with the country’s strict rules on women’s dress by wearing an “improper hijab”. Her death sparked nationwide outrage and waves of protests across the country with women and young persons leading the charge under the banner ”[specified]”[10].

[10] Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, Javaid Rehman7 February 2023 para 6

163.   Since the Mahsa Amini riots in 2022 the Iranian authorities have been engaged in the harsh suppression of the protest movement and those who have voiced support.

164.   The UN Special Rapporteur reports in that “since the start of the protests, the highest levels of the State have instigated violence and instructed security forces to ‘confront the enemies’”.

165.   In its 2023 report DFAT noted

2.107 The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty. The response by security forces has been particularly harsh in majority Kurdish and Baluch regions.

….

2.109 While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest-running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.

166.   In considering the claims of the applicant the Tribunal has considered the claims in the context of the Mahsa Amini protests and the government response. Further other matters which may not of themselves have resulted in the applicant facing a real chance of serious harm if she returned to Iran, when considered cumulatively with her protest activities, raise the chance she will face a real chance of serious harm if she returns. 

167.   The Tribunal accepts her claims being that she has been engaged in protests which criticise the Iranian government’s treatment of women, including the compulsory wearing of the hijab. DFAT notes

…Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[11]

[11] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, para 2.144

168.   Further the applicant is a Faili Kurd and the country information indicates that the Kurdish minority has faced serious discrimination due to ethnicity in Iran but have also been disproportionately affected by the Amini protests[12]. The Special Rapporteur noted “Ethnic and religious minorities who have suffered decades of systemic and systematic discrimination and persecution have been disproportionately affected in the current wave of repression. More than half of the total number of persons killed since the start of the protests are from Baluchi and Kurdish-populated provinces. Children from the country’s Baluch and Kurdish minorities constitute 63 per cent of the recorded child victims.

[12]  Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, Javaid Rehman7 February 2023 Paras 28-30.

169.   The Tribunal accepts the applicant is in a relationship with her partner and that she stays with him from time to time and thus is engaged in a relationship which would be prohibited in Iran. It accepts that she has failed to wear the hijab in Australia, that she has her publicly promoted the [specified flag] and that she is friendly with a prominent with a member of the Bahai community in Australia and the fact of the friendship is captured in a number of social media posts.

170.   The Tribunal considers that the applicant would not face a real chance of serious harm for any of these reasons when considered on their own, but nevertheless, finds that cumulatively when considered together with her involvement in protest activity as set out above, it would increase the risk of harm faced by the applicant to a real chance of serious harm for reasons of her real and imputed anti-government political opinion. If the applicant had been monitored by the Iranian authorities and is questioned about her involvement in protest activities in Australia the Tribunal considers these factors would increase the risk to the extent that she would face a real chance of serious harm at the hands of Iranian authorities if she returned to Iran now or in the foreseeable future.

171.   Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. As the persecution would be at the hands of Iranian state authorities the Tribunal is satisfied that the real chance of persecution relates to all areas of Iran. There is no evidence that the applicant has the right to enter and reside in any country apart from Australia and the Tribunal finds that s 36(3) does not apply to the applicant.

172.   For reasons set out above the Tribunal is satisfied that the applicant has a well-founded fear of persecution for her actual and imputed political opinion which is one of the reasons set out in section 5J(1)(a) of the Act.

[Applicant 3]

173.   Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is satisfied that if [Applicant 3] returns to Iran now or in the foreseeable future she faces a real chance of persecution for reasons of her anti-government political opinion.

174.   As set out above the Tribunal accepts the applicant has been involved in protest activities against the Iranian government, particularly in relation to its treatment of women and women protesters in Iran. It also accepts that the applicant has been involved in the criticism of the Iranian government in her publicly accessible social media accounts.

175.   The applicant had a good command of English and appeared to be passionate and committed when she gave evidence on the reasons she has been involved in physical and online protest activities in Australia. The Tribunal accepts that she has that she has engaged in these activities because she has a genuine commitment to the protest movement in Iran and is concerned for the treatment of women and Kurds in Iran. It does not consider that the applicant has engaged in these activities solely for the purpose of strengthening her claim to be a refugee.

176.   The applicant stated, and the Tribunal accepts, that she did not suffer any mistreatment in Iran for reasons of her ethnicity or because she was a young woman. However, it accepts that she was aware that other members of the family had been mistreated and she was concerned about her own safety on this basis. She also claimed that she suffered a level of social discrimination due to her Faili Kurd ethnicity.

177.   In making findings about [Applicant 3’s] claims for protection the Tribunal refers to the country information which is outlined earlier in this decision and which relates to [Applicant 4’s] claims.

178.   Taking this information into account the Tribunal has considered the claims in the context of the Mahsa Amini protests and the government response. Further other claims which may not of themselves have resulted in the applicant facing a real chance of serious harm if she returned to Iran, when considered cumulatively with her protest activities, raise the chance she will face a real chance of serious harm if she returns to Iran. 

179.   Those claims being that the applicant has been engaged in protests which criticise the Iranian government’s treatment of women, including the compulsory wearing of the hijab. Further the applicant is a Faili Kurd and the country information indicates that the Kurdish minority has faced serious discrimination due to ethnicity in Iran but have also been disproportionately affected by the Amini protests[13].

[13]  Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, Javaid Rehman7 February 2023 Paras 28-30.

180.   The Tribunal accepts she was in a relationship with her former partner who is a Freemason, that she has failed to wear the hijab in Australia, that she has her publicly promoted the [specified flag] and was involved and shown in a video in which she was drinking wine and which contained other material which would be forbidden in Iran.

181.   The Tribunal considers that the applicant would not face a real chance of serious harm for any of these reasons when considered on their own, but nevertheless, finds that cumulatively when considered together with her involvement in protest activity as set out above, it would increase the risk of harm faced by the applicant to a real chance of serious harm for reasons of her real and imputed anti-government political opinion. If the applicant had been monitored by the Iranian authorities and is questioned about her involvement in protest activities in Australia the Tribunal considers these factors would increase the risk to the extent that she would face a real chance of serious harm at the hands of Iranian authorities if she returned to Iran now or in the foreseeable future.

182.   Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. As the persecution would be at the hands of Iranian state authorities the Tribunal is satisfied that the real chance of persecution relates to all areas of Iran. There is no evidence that the applicant has the right to enter and reside in any country apart from Australia and the Tribunal finds that s 36(3) does not apply to the applicant.

183.   For reasons set out above the Tribunal is satisfied that the applicant has a well-founded fear of persecution for her actual and imputed political opinion which is one of the reasons set out in section 5J(1)(a) of the Act.

The applicant brother

184.   Taking into account the findings set out above and the country information referred to in this decision and having considered the claims singularly and on a cumulative basis, the Tribunal is satisfied that if the applicant returns to Iran now or in the foreseeable future, he faces a real chance of persecution for reasons of his actual and imputed anti-government political opinion.

185.   The applicant has consistently claimed, and the Tribunal accepts, that he was assaulted and seriously injured by the Iranian security authorities in 2010 when he and his sister [Sister A] were walking in the street. The applicant [received a disability] as a result of a fight which broke out between him and the security authorities after they accused him and his sister of being in an illicit relationship. The applicant claimed and the Tribunal accepts that he was detained for about [number] days and then required to pay a fine as a result of this incident.

186.   The applicant had originally claimed that he and his sister could not demonstrate their sibling relationship because they were stateless, however the applicant has resiled from the claim that he was stateless. At the Tribunal hearing the applicant stated that the incident took place because his sister was accused of having “bad hijab” and an argument broke out because authorities had shouted at his sister.

187.   The applicant gave evidence that he was very unhappy about what happened to him, however the Tribunal notes the security authorities did not take any further action against him in the two years before he left Iran. There is no evidence provided, and the Tribunal does not accept, that if the applicant returned to Iran he would face a real chance of harm from authorities due to the 2010 incident in which he was involved in a fight with the security authorities. However, it does accept that his detention and criminal history may raise his profile if he returned to Iran and had been monitored or investigated for other reasons.

188.   At the Tribunal hearing the applicant’s evidence was limited and lacked detail. The applicant claimed that he would face serious harm from Iranian authorities because he did not believe in religion and had posted critical content on social media. He claimed that he had posted critical comments about Shia religion and the Iranian authorities and the Tribunal notes that he provided some screenshots of posts, however, some of these screenshots did not display the account holders name and date of the post.

189.   He claimed he started his [social media] account three or four years ago, with the goal of telling people what was going on in Iran and to give knowledge to people in Iran as to what is taking place in Iran. He claimed that was the reason he started his [social media] page which is publicly accessible. In his earlier statement he claimed that he does not consider himself to be a Shia Muslim and has posted comments critical of Islam. He also stated he feared serious harm because of his ethnicity as a Faili Kurd and because of his sister’s activities.

190.   The Tribunal does not accept that the applicant has a public profile as a protester, although it accepts he may have attended one or two protests in Canberra and Sydney and accepts he may have posted comments and images critical of the Iranian state and of Shia clerics. His level of activity, on its own, may not bring him to the attention of the Iranian authorities.

191.   As DFAT notes in it most recent report on Iran

2.128 Given the high volume of social media interaction, most of which is unlikely to be of interest to authorities, it is unlikely that every social media user in Iran has their social media comprehensively monitored. Users with a public profile (including with large social media followings, particularly on Instagram) or who are politically active and post about politically sensitive topics (such as minority rights or about topics that are critical of the government) are more likely to be monitored. Iranians with a public profile in Australia may also have their social media presence tracked by the Iranian government. DFAT assesses that journalists, both print and online, who report on protests, sensitive topics or other criticism of the government face a moderate risk of arrest. 

192.   However the applicant brother claimed, and the Tribunal accepts, that his sisters have been involved in anti-regime protests and have been quite vocal in their opposition to the Iranian authorities in physical and online protests. The applicants’ representative, relying on quoted country information, submitted

Based upon the above, it is our submission that persecution is widespread in Iran on the basis of actual and imputed political views against the regime. This persecution has occurred on a very broad scale, inflicting harm on the basis of even minor forms of dissent. This persecution occurs throughout Iran and would place the Applicants at great risk if they were to return to Iran. The anti-regime protests that the Applicants have participated in has a high chance of being monitored by the Iranian authorities. It is likely that the Iranian authorities would have information confirming their engagement in protests in Australia.

193.   Country information indicates that family members of protesters and dissidents will often be harassed and intimidated by Iranian state authorities. The Foreign Affairs, Defence and Trade Committee on Human Rights Implications of Recent Violence in Iran[14], reported on statements provided attesting the struggles of diasporic communities, including that ‘For Iranians who speak out at rallies here who are active on social media criticising the regime, their families back home suffer consequences. In some other communities, we've seen harassment and intimidation directly impact the dissidents themselves here in Australia’.

[14] Parliament of Australia, Foreign Affairs, Defence and Trade Committee Debate, 28 November 2022, Human Rights Implications of Recent Violence in Iran (Ms Sophie McNeill, Australian Researcher, Human Rights Watch) available at:

194.   While the Tribunal considers it unlikely that if the applicant brother returned to Iran he would face serious harm for expressing anti- government political opinion and for his criticism of the Shia religion and Muslim clerics, it considers that it is possible that he may be imputed with anti-government opinions based on his association with his sisters who appear to have higher profiles as protesters. Further his previous arrest and detention in Iran and his Faili Kurdish ethnicity may, when considered together with his family’s protest activities, cause Iranian authorities to form the view that he has engaged in anti-government activities, and the Tribunal considers he may face serious harm as a result of that perception.

195.   For these reasons, the Tribunal considers there is a real chance the applicant brother will face serious harm if he returns to Iran for reasons of imputed anti-government political opinion.

196.   Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. As the persecution would be at the hands of Iranian state authorities the Tribunal is satisfied that the real chance of persecution relates to all areas of Iran. There is no evidence that the applicant has the right to enter and reside in any country apart from Australia and the Tribunal finds that s 36(3) does not apply to the applicant.

197.   For reasons set out above the Tribunal is satisfied that the applicant has a well-founded fear of persecution for his actual and imputed political opinion and for religion Those are two of the reasons set out in section 5J(1)(a) of the Act.

The applicant mother.

198.   The Tribunal accepts that the applicant is about [age] years old and is of Faili Kurdish ethnicity. She previously claimed she was a stateless Faili Kurd but now acknowledges that she is an Iranian citizen.

199.   The applicant claimed, but the Tribunal does not accept, that she would face serious harm if she returned to Iran now or in the foreseeable future for reasons of her Faili Kurdish ethnicity or because her children have attended protests in Australia.

200.   While the Kurdish population have suffered a level of discrimination in Iran the Tribunal does not consider that, on its own, the current level of discrimination referred to in the country information available to the Tribunal, amounts to persecution. The applicant mother also points to her family’s protest activities and while such activities may cause the Iranian authorities to question the applicant mother about her family it does not consider that, given her age, her lack of protest involvement and her observant practice of her Shia religion, she would face serious harm for reasons of any imputed anti-government opinion, although there is always the possibility she will be questioned about her family’s activities and harassed if she returns to Iran.

201.   For essentially the same reasons set out above, the Tribunal also is not satisfied that the applicant mother has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that he or she will suffer significant harm as defined in the Act.

202.   However, given the evidence before it, and the finding made regarding the other applicants the Tribunal has considered whether the applicant mother is a member of the same family unit as her applicant children.

203.   In post hearing submissions, the applicant’s representative referring to the relevant legislation, submitted that the applicant mother was a member of the family unit of her children.

204.   The applicant’s representative submits that the applicant mother has not worked since coming to Australia. She has always lived with her adult children and relies on them to pay for all of her expenses. She does not receive income support from Centrelink, no financial payments from SRSS and earns no income. The only bank account she holds has nothing in it.

205.   Two of her adult children work including the applicant brother who is working full time at his [business] and [Applicant 3] who works [as an occupation 1]. She works 12 hours a day 5 days a week. The applicant mother provided documents to support evidence of [Applicant 3’s] income and bank details.

206.   The applicant mother is substantially reliant on each of her adult children for her accommodation, food, practical help such as being driven to medical appointments, and psychological support.

207.   [Applicant 3] pays the rent of $1,150 per fortnight. Her brother gives her his share $250 - $500 usually in cash and she makes the rental payment. [Applicant 3] pays for the internet and electricity. The rent payments are visible on the applicant [Applicant 3’s] bank account statement which was provided to the Tribunal.

208.   For food shopping each of the adult children contribute and often [Applicant 3] buys the food because she works at a [convenient location]. [Applicant 4] does all the cleaning and laundry for the applicant mother and [Applicant 3] makes sure she takes her medication for her arthritis and all three children take her to medical appointments.

209.   The Tribunal finds that the applicant mother is the “parent” of [Applicant 3], [Applicant 4] and the applicant brother.

210.   Having heard all the applicants give evidence and considering the written material, the Tribunal accepts that the applicant mother does not have a spouse, lives in the same household as the applicant children and is dependent on her children, particularly on [Applicant 3] and to a lesser extent [Applicant 4] and the applicant brother.

211.   Regulation 1.05A(2) of the Migration Regulations (Cth) 1994 specifies that dependency for a protection visa means that the person is wholly or substantially reliant on the other person for financial, psychological or physical support. The Tribunal accepts she is “a relative” within the meaning of the relevant Regulations.

212.   The Tribunal accepts the applicant mother is wholly reliant on [Applicant 3] for financial support and substantially reliant on the applicant children for psychological and physical support.

213.   Accordingly, the Tribunal accepts that the applicant mother is a member of the same family unit as the applicant children.

Conclusion

214. For the reasons given above the Tribunal is satisfied that the applicant brother, the applicants [Applicant 4] and [Applicant 3] are persons in respect of whom Australia has protection obligations and that each satisfy the criterion set out in s 36(2)(a).

1. The Tribunal is not satisfied that the applicant mother is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant mother is the parent of the other applicants and is a member of the same family unit as the other applicants for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the other applicants’ applications. It follows that the applicant mother will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) is met.

   DECISION

216.   The Tribunal remits the matter for reconsideration with the following directions:

(i) that the applicant brother, [Applicant 4] and [Applicant 3] satisfy s 36(2)(a) of the Migration Act; and

(ii) that the applicant mother satisfies 36(2)(b)(i)of the Migration Act, on the basis of her membership of the same family unit as the other applicants.

Louise Nicholls
Senior Member

ATTACHMENT

Criteria for a protection visa

217.   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.

218. 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.

1. 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).

220.   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.

1. 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

222.   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.

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.

…

Information Note—Iran: Journalists and Internet-based media’, UK Home Office, 25 October 2016, p. 4; 'Iran’s Punishment for Journalists: Flogging', Iran Wire, 27 May 2021,
‘Press freedom violations recounted in real time (January-December 2016)’, Reporters sans Frontieres (France), 6 January 2017; ‘Iran: Telegram admins sentenced to prison’, Iran Human Rights Monitor (United States), 22 August 2017;‘Situation of human rights in Iran Report of the Secretary-General’, United Nations General Assembly, 17 January 2020, p.8; ‘Iran: Cyber Police arrests man for blasphemy’, Iran Human Rights Monitor, 26 July 2017,

Research Directorate, Immigration and Refugee Board of Canada; 22 February 2021in 2023 IRN200457.E