1803050 (Refugee)

1803050 (Refugee) [2023] AATA 2337 (2 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803050

COUNTRY OF REFERENCE: Iran
MEMBER:Sean Baker
DATE:2 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 02 May 2023 at 1:01pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – secular Shi’a Muslim – imputed political opinion – past Baath Party membership – expressed views against corruption – family of Communist Party member – fear of killing – Shia militias – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 22 September 2016. The delegate refused to grant the visa on the basis that they disbelieved the applicants claims.
The applicant appeared before the Tribunal on 6 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Iran or there is a real risk of significant harm if the applicant is removed from Australia to Iran. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Nationality
The applicant was born in Tehran, Iran. He has presented a copy of his Iranian passport and Birth Certificate to the Department.
On the basis of this evidence, I accept that the applicant is who he claims to be and is a national of Iran.
Procedural history
The applicant first arrived in Australia [in] January 2012. He was defined as an Unauthorised Maritime Arrival. He lodged an application for a protection visa which was refused, and this was affirmed by the RRT. He sought Ministerial Intervention which was not considered. An international treaties obligation assessment (ITOA) found the applicant did not engage protection obligations. The applicant sought judicial review of this assessment. The provisions barring the applicant for applying for a further protection visa were lifted and the applicant withdrew his judicial review. He then applied for the visa the subject of this review.
Claims
The applicant was born in Tehran. His father was a veteran of the Iran – Iraq war and this meant the applicant was able to attend a Shaheed school for children of veterans and others with a military connection.
At this school the applicant was required to be a member of the student Basij. He studied [subject] at the school.
Because he was larger than others his age, he was enrolled as a member of the regular Basij.
On his first assignment with the Basij [in] March 2011 the applicant and his friend were required to assist in managing a protest/riot. They went in a convoy of motorbikes. He and his friend were nervous and did not want to attend.
At the protest other Basij detained a group of protestors. Each bike was required to take a detainee back to the Basij office. The applicant and his friend put the detainee on their motorbike with difficulty and left after the other bikes.
The detained protestor begged to be let free and the applicant and his friend agreed to help. They spilt off from the main group but were pursued by the leader. They managed to lose the other bike, parked in a dark alley, and let the protestor go and took off their uniforms and went to their houses.
The next day the Basij came to his house looking for him but his mother told the Basij he was not there. The applicant told his parents what he had done and his father made him go to his grandparents house outside the city. The applicant’s friend disappeared.
The applicant organised to leave Iran with his father’s help and eventually left the country.
Since arrival in Australia the applicant had his claims assessed as noted above. During this process the Department inadvertently released information about people who had been in immigration detention in January 2014 on the Department website, including the personal information of the applicant. This included his personal details including nationality but did not include his protection claims. In the applicant’s submission in response, it was noted that it appeared that the data released had been accessed in 16 countries.
The applicant has provided a range of mental health reports which indicate that the applicant has suffered from symptoms of depression and post-traumatic stress disorder.
The applicant was Baptised [in] February 2013 at [Church 1]. He attended Bible classes and Church. However, in 2014 he questioned his faith and decided he would not believe any religious doctrine anymore.
The applicant attended a protest March against the Iranian regime in [City 1] [in] 2022. Attached was a photograph of the applicant at a March holding a placard. It is claimed that the protest was filmed by [Iranian Embassy officials]. At the hearing the applicant told me that he had attended several more protests against the Iranian regime, in Sydney, in late 2022 and early this year.
At the hearing the applicant told me that he had been in a de facto relationship with an Australian citizen since 2017 and he was [an occupation 1] after having completed his Australian apprenticeship.
The applicant also claimed that his sister had attended the recent protests in Tehran against the killing of Mahsa Amini and for women’s rights.
Consideration
At the hearing I found the applicant to be a credible witness. He was measured, he explained the concerns that had been expressed previously. He was able to provide further detail where requested.
I understand that there have been considerable doubts expressed about the applicant’s claims of what happened to him in Iran. Given the time that has elapsed, I found his evidence on this to be consistent with earlier evidence. Indeed, the main concern that appears to have been raised is plausibility of his account with either country information, or the prior decision makers world experience.
I am not convinced that any of the concerns raised about his claimed time with the Basij are material or go to the plausibility of his claims. Most egregiously the assumptions in relation to the Basij do not appear to grapple with the fact that this organisation is a paramilitary one, with a range of differences in practices, requirements, training.[1] The behaviour the applicant has detailed appears to me entirely consistent with a non-professional force, as is his teachers claimed insistence that the applicant join this voluntary force. Similarly, whilst a professional military force may not require its members to ride three to a motorbike, this appears entirely consistent with the very well reported variations in Basij practices. The applicant also produced photographs which showed that he had ridden motorbikes with his father since a young age, he said that with this skill he was able to take three on a motorbike.
[1] Golkar, S., Captive Society: The Basij Militia and Social Control in Iran, Columbia University Press, 2015. The Basij Resistance Force | The Iran Primer (usip.org)
The concerns expressed about the ability of the applicant to remain hidden, and to depart through the airport appear inconsistent with country information which indicates that travel bans may be imposed, not that they are imposed as a matter of course,[2] I note also that the applicant was a minor at the time and that his travel and passport were arranged by his father.
[2] 'Iran: Criminal procedures and documents', Landinfo, Office of the Commission General for Refugees and Stateless Persons (Belgium), Switzerland: State Secretariat for Migration (SEM), 06 December 2021; Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April
I find the applicant’s claims consistent with available country information and his claims have been largely consistent across time. I accept that the applicant was required or strongly pressured to become a member of the Basij, that as a member of the regular Basij he was sent to police a protest, took a detained protestor on his bike with his friend, released that detainee and fled. I accept that he was of interest to the Basij for this action, but that he was able to hide and leave the country without being detected. I also accept that the Basij or other authorities came to his house and took his computer when the applicant was in Indonesia. I accept that they have not harassed his family after this because they have respect for his father as a veteran.
I accept that the applicant was Baptised at [Church 1] in 2013. I found his evidence that he did this because a group of Iranians were going and he went with them and got baptised to be entirely believable. I accept his evidence that he was not active in the Church after this until he met his partner in 2017. She and her family are Christian and the applicant attends Church with his partner and has become more involved since meeting her. The applicant refers to himself and others refer to him as [an anglicised name or its variant] because he does not want to be associated with Islam.
I accept that the applicant was Baptised in 2013, that he engaged in this activity in part because other members of the Iranian community were doing so. I accept that he did not attend Church after this until he met his partner in 2017, but that since meeting her and her family he attends Church on a regular basis with her and has become more involved. I accept that he prefers to be called [an anglicised name or its variant] because he does not want to be associated with Islam. Having carefully considered the applicant’s claims I accept that he did not undertake any of these activities for the sole purpose of strengthening his claims but for reasons of community, belonging and to engage in activities that his partner values.
I accept that the applicant attended a protest against the Iranian regime in [City 1] in November 2022 and in Sydney on several occasions in late 2022 and early 2023. He identified that these protests were in relation to freedom for women and others in Iran. He said that he was holding the sign calling for [an action against the Iranian government] because he wished the Iranian regime out of Iran. He said that he had also been active on [social media], for example signing the petition that Reza Pahlavi, the son of the deposed Shah, act on behalf of the protestors. He said that he mostly reposted but he added his own captions or comments. He said that there had been people [from the Iranian Embassy] filming the protest. He said that there had also been people filming in Sydney but he did not know who they were.
I accept that the applicant has attended a number of protests, one in [City 1] where he held a sign, and several in Sydney. I also accept that these protests were very likely to have been filmed and monitored by Iranian agents in Australia given the country information that the Iranian regime has a large network of agents and monitors Iranian citizens outside Iran, particularly at protests.[3] I accept that the applicant undertook these protests other than for the sole purpose of strengthening his claims for protection, but because he is genuinely concerned for the freedom of himself and other Iranians, and I note as below that his sister has also attended protests in Iran.
[3] Home Affairs Minister Clare O'Neil's warning to foreign agents | SBS News; Germany sees increase in Iranian spying since protests, Welt am Sonntag reports | Reuters.
The applicant said his family had not had any difficulties because of his activities. He said that he believed this was the case because veterans such as his father still garnered respect and were not bothered.
When asked he said that his sister had attended protests in Iran, she had been hit in the right ear by the pellet from a shotgun, but she and her friends had escaped. He said that she had had a mask so she had not had any difficulties after that. I accept that the applicant’s sister has attended protests in Iran and was injured at one of these protests.
The applicant spoke about his mental health. He agreed that he had had severe depression. He said that since he met his partner he had not needed medication and had not been seeing a professional. I accept that the applicant has suffered from symptoms of depression and post-traumatic stress disorder, but that he is not currently receiving treatment.
I accept that the applicant’s details were revealed by the Department in 2014, including his personal details and the fact that he had been in immigration detention in Australia. Whilst his claims for protection were not revealed I accept that the Iranian regime may have had access to his information and would have been able to infer that this meant he had sought protection in Australia.
Is there a real chance the applicant will be persecuted if returned to Iran?
Political and religious expression are heavily circumscribed within Iran.[4] Whilst there are formal legal protections for freedom of political expression in the Constitution, in practice and in law these are proscribed.[5] What tolerance there was for public discourse critical of the Iranian government and regime has diminished considerably since the September 2022 death of Mahsa Amini and large-scale protests which the regime understood to be existential.[6] I note reports as above that the family in Iran of those protesting in Australia have been harassed and in some cases jailed.[7] I note that this appears to be an international modus operandi by the regime.[8] Iranians returning to Iran may have their phones and activities on social media examined and may be pulled aside at passport control for questioning.[9] Whilst claiming asylum is not in and of itself a trigger for maltreatment on return other than questioning, according to DFAT, other reports stated that there is no guarantee punitive action could not be taken against returnees who claimed asylum.[10] There are some indications that those who have remained outside Iran for extended periods are treated with greater suspicion by the authorities and would face more attention. The utilisation of torture and of conditions which amount to cruel, inhuman or degrading treatment are common for detainees.[11]
[4] DFAT Country Information Report Iran, 14 April 2020.
[5] DFAT Country Information Report Iran, 14 April 2020, 3.78 – 3.82.
[6] Iran Human Rights Monitor, Annual Report 2022, Iran Human Rights Monitor, 9 December 2022; ‘Woman, life, freedom; Comprehensive report of 20 days of protest across Iran’, Human Rights Activists News Agency, 12 October 2022; ‘Iran protests flare in several cities amid continuing unrest’, Guardian, 17 February 2023; Iran: Leaked official documents ordering deadly crackdown highlight need for international action’, Amnesty International, 30 September 2022, p.6.
[7] '‘Silencing dissent by threatening family’: Iran cracks down on family of Australian protester', The Age - Australia, 16 January 2023; 'How the Iranian regime is intimidating and surveilling its former citizens in Australia', Australian Broadcasting Corporation News, 5 November 2022; 'Australia says it busted Iran surveillance op targeting activist', Agence France Presse, France, 14 February 2023.
[8] Iran International, Iranian Regime Agents Threaten Dissident Expats In Europe, 7 January 2023.
[9] MFA of Denmark, Information vedrørende evt. ændringer i procedurer for iranere, der returnerer til Iran [Information regarding possible changes in procedures for Iranians returning to Iran], 24 January 2023.
[10] DFAT Country Information Report Iran, 14 April 2020, 3.78 – 3.82. c.f. Iran: Treatment by Iranian authorities of failed refugee claimants and family members of persons who have left Iran and claimed refugee status (2017-February 2020) Research Directorate, Immigration and Refugee Board of Canada.
[11] DFAT Country Information Report Iran, 14 April 2020, 4.11 – 4.22.
I have accepted that the applicant was of interest to the Basij. I accept that the applicant has engaged in political activities in Australia, and that these are representative of his genuinely held views. I accept that he has reposted posts critical of the Iranian regime on his social media. I accept that the applicant has been Baptised and attends Church with his partner on a regular basis. I find that the applicant would be returning now or in the reasonably foreseeable future to an Iran which is less tolerant of the expression of dissent, and those who have dissented overseas, than even several years ago.

If the applicant were to return to Iran now or in the reasonably foreseeable future it must be accepted that the Iranian authorities would be aware of his seeking asylum in Australia, through the disclosure by the Department, that they would be suspicious of the long period of time he has spent in Australia, that they would be aware of his attendance at protests and his social media posting. Combined with his actions as a member of the Basij whilst in Iran, I find that this would lead to a real chance, that is one that is not remote, that he would be pulled aside, questioned and detained on return to Iran. I find there is a real chance he would be charged with his actions before he departed Iran as well as his activities in Australia. While the country information is conflicting on the chance of interest by the authorities and detention, I find that the chance is not remote, and further that the recent protests will likely have increased the suspicion and paranoia of the authorities. I cannot rely on the consideration that the authorities will act in a rational manner to consider his activities in Australia to be low level.
On being questioned and detained and charged, I find that there is a real chance the applicant would face treatment from the authorities that constitutes serious harm, being torture, cruel, inhuman or degrading treatment, either in detention or if he is imprisoned for any period of time, and I note that the psychological vulnerability of the applicant given what I have accepted of his mental health would mean that treatment he would receive in detention could amount to serious harm in his particular circumstances.
I find that such treatment would be for the essential and significant reason of his actual and imputed political opinion, that the persecutor in this case is or is likely to perceive his activities in being politically active by attending rallies and posting to his social media, as well as his long term remaining in Australia and his seeking asylum, as the expression of an anti-regime opinion. The harm, being potential for torture or cruel, inhuman or degrading treatment would be systematic and discriminatory because such treatment is very clearly part of the Iranian regimes playbook for treating with dissenters or those perceived as dissenters.
As the Iranian regime exercises effective control over Iran, the real chance relates to all areas.
There is no effective protection available to the applicant, nor is there any modification of his behaviour he could undertake, given the information is available to the authorities and I must presume (and it is reasonable on the country information to do so) is known to them.
For the avoidance of doubt, any charges the applicant was subjected to would not be laws appropriately adapted because they are specifically used to remove genuine political dissent.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Sean Baker
Member

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

2022.

[2023] AATA 2337

2 May 2023

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