1805993 (Refugee)

1805993 (Refugee) [2023] AATA 3287 (7 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan
CASE NUMBER:  1805993
COUNTRY OF REFERENCE:                   Iran
MEMBER:Member Nathan Goetz
DATE:7 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 July 2023 at 11:34am
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Court remittal – employment in Iran – prohibited occupation – arrested and summoned to attend court – credibility concerns – inconsistent evidence – departed Iran legally without any issue – flexible approach to the truth – political opinion – critical of the Iranian Government while outside of the country – religion – Christian convert – sole purpose of strengthening refugee claim – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on to refuse to grant the applicant a safe haven enterprise visa under s 65 of the Migration Act 1958 (Cth) (the Act).
From 23 March 2022, the applicant was represented in the review by registered migration agent 0961664. Mr Mahalingam Sutharshan. Prior to that time, the applicant was represented in the review by registered migration agent Mr Ehsani Behrooz.
CRITERIA FOR A SAFE HAVEN ENTERPRISE VISA
The criteria for a safe haven enterprise visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). A ‘safe haven enterprise visa’ is a ‘protection visa.’
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
BACKGROUND
The applicant identifies as a male citizen of Iran presently located in Australia.
[In] November 2011 the applicant arrived in Australia by boat without a valid visa.
A Protection Obligations Determination (POD) commenced on the same date. The POD concluded that the applicant was not owed protection on 14 March 2012. This was then referred for Independent Protection Assessment (IPA) on 15 March 2012. The IPA concluded that the applicant was not owed protection on 14 August 2012. The applicant commenced judicial review at the Federal Court on 11 February 2013 ([file number]). The Federal Court found in favour of the Minister [in] July 2013.
A reconsideration of the applicant’s claims commenced on 10 June 2014. A result of this reconsideration was recorded as “referred for removals” on 26 August 2014. Another judicial review at the Federal Court was commenced on 12 November 2014 ([file number]). The applicant withdrew this review on 29 June 2016.
A submission to the Minister under s 46A(2) was made on 1 April 2016. This Minister lifted the s 46a(1) bar on 1 April 2016, allowing the applicant to lodge a protection visa application.
The applicant was granted a Subclass 449 Humanitarian Stay Visa on 8 May 2012, which expired 15 May 2012. Also on 8 May 2012, the applicant was granted a Bridging Visa E, which expired 8 November 2012.
The applicant was then granted a number of Bridging Visa Es on 12 November 2012, 14 February 2013, 28 August 2013, 7 October 2014, 25 November 2014, 16 September 2016, 20 December 2016 7 April 2017, and finally 9 June 2017 that remains in effect.
The applicant commenced the Safe Haven Enterprise Visa application on 24 April 2017. This was refused by the Department on 12 February 2018. The applicant commenced the current review with the Tribunal on 6 March 2018.
The applicant appeared at a Tribunal hearing on 8 March 2022 by audio-visual link via the MS Teams application. The Tribunal determined that an appearance by audio-visual link was appropriate in all the circumstances.
The applicant’s former migration agent also attended the Tribunal hearing by audio-visual link. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Persian languages.
CONSIDERATION OF CLAIMS AND FINDINGS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a person who is a member of the same family unit as the applicant and holds a protection visa on the basis they are a ‘refugee. or meeting the requirements for ‘complementary protection.’
The Tribunal has considered all the available evidence relevant to the applicant’s claims, including the applicant’s oral evidence provided to the delegate at interview, and the applicant’s oral evidence provided at the Tribunal hearing.
The Tribunal has also considered the post hearing evidence which was filed after the applicant obtaining a new representative following the Tribunal hearing. The Tribunal delayed making a decision on the review to allow to allow the new representative to make an application under the FOI Act to obtain the applicant’s file and make any submissions they wished. Where documents have been repeatedly submitted to the Tribunal, the Tribunal has omitted repeating the further production of those documents in the decision record.
The Tribunal has considered the applicant’s claims individually and cumulatively.
For the following reasons, the Tribunal has determined that the correct or preferrable decision is to affirm the decision under review.
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.
The most recent Department of Foreign Affairs and Trade Report on Iran was published on 14 April 2020. The Tribunal has considered the contents of the report where they relate to the applicant’s claims.
Identity and country of reference
In the protection visa application form dated 4 October 2016, the applicant identified that he was born on [date] in Tehran, Iran. His citizenship at birth is Iranian and he does not have any other citizenship. He declared that he did not have the right to enter and reside in any third country. At the delegate interview, he provided a copy of his Iranian Military Completion Card, as well as an Iranian Driver Licence.
The Tribunal is satisfied as to the applicant’s identity and that, in the absence of evidence to undermine his claim that he has no citizenship of any third country or right to reside in any third country, that Iran is the country of reference for the purpose of the protection visa assessment.
Member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act
In the protection visa application form, the applicant declared that he was the only person included in the protection visa application, and that he was making his own claims for protection.
He did not claim to meet the requirements for a protection visa on the basis that he was a member of the same family unit of a person who is a ‘refugee’ or meets the requirements for complementary protection.’
On the basis of the fact that the applicant did not claim to be a member of the same family unit of such a person, the Tribunal is satisfied that the applicant is not a person who is a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa) of the Act.
Claimed fear of harm in Iran due to his work [in Occupation 1] in that country
In the protection visa application form, the applicant declared that from February 2009 until July 2011 he worked as a [Occupation 1] for a private company named [Name 1] in Iran. In his statement of claims provided to the delegate, the applicant claimed that he undertook this work, which was very dangerous, because of Iran’s poor economy. The work was risky because [it enabled Iranians to access information] which the Iranian Government opposed.
The applicant wrote that he had been ‘caught a number of times and had to face the authorities.’ He claimed that he had belongings taken away, was questioned and accused of very arbitrary or false crimes. He wrote that he had been forced to sign undertakings each time to stop [doing his occupation]. On the last occasions he was arrested, he claimed he was summoned to attend court. He was fearful because he was aware of the consequence of attending court, namely imprisonment. He wrote that he felt he had no choice but to flee Iran.
At the delegate interview, the applicant said that he expressed opposition to the Iranian Government within Iran by [doing his occupation], as well as participating in the ‘Green Movement’ protests. He detailed that he had protests three or four times, with the biggest protest being in February or March where people took to the streets. He was three for 2 or 4 hours. At the Tribunal hearing, the applicant agreed that he had lied about this, which was consistent with the applicant specifically detailing that he had not attended any Green Movement protests as part of his IPA review. In response to the Tribunal’s concern that the applicant had a flexible approach to the truth and may be prepared to say things that were not true in order to get a positive migration outcome, the applicant responded that he said he participated in the protests because he was scared and frightened. He said that it was when he went back to Church, he was told that he could not like, and he regrets doing so. He claimed that he had not told any other lies in order to get a protection visa.
At the Tribunal hearing, the applicant told the Tribunal that he worked for himself as a [Occupation 1]. He did not have a company name because the work was [illegal]. He did not have a business or a shop. He had a telephone number that people contacted him on. He told the Tribunal that he had another job during the time he was [doing Occupation 1] and described this as using a motor bike similar to UberEats. He was part of a group of motorcyclists and there was a person who coordinated this work. The applicant claimed that he worked in this job, as well as [in Occupation 1] until the time he left for Iran.
The applicant told the Tribunal hearing that he had no qualifications for [Occupation 1] and when asked where he got the hardware from, the applicant said he went to a warehouse and would collect it. When pressed for more details about what he did to obtain the hardware, the applicant said that it was a long time ago and he could not remember, but got the material from a person named [Name 1], which the Tribunal observes is the name the applicant provided in the protection visa form as the company he worked for.
At the Tribunal hearing, the applicant claimed that the authorities found out that he had been [doing work in Occupation 1] and were after him for ‘quite a while.’ He claimed that on the last occasion, they tried to locate him, and he fled. He claimed that he had forgotten a lot of details, such as where he was when this occurred. When asked when he first became aware that the authorities were looking for him, the applicant said that he would talk to friends and neighbours. When asked about whether he had ever been caught by the authorities, the applicant said that they had ‘threatened’ him, and that on the last occasion they came to arrest him.
The applicant told the Tribunal hearing that he could not remember the first time he had dealings with police, but he remembered the last time. It went on for a few months.
Describing the first time he came to the attention of the authorities in Iran for [doing work in Occupation 1], he claimed that they threatened him and said he must not continue. When asked for more specifics, the applicant said it was such a long time ago he could not remember but he could remember some names. He suggested to the Tribunal that he had poor memory as a reason for his inability to recall specific detail.
In the protection visa application form, the applicant provided one residential address for the period of August 2004 until August 2011, which is when he departed Iran. He declared in that form that he did not move, or try to move, to another part of Iran. The Tribunal asked the applicant why he would remain living at the one address in Iran during that time if he was being sought by the authorities. His continued residence at one place suggested that the Iranian authorities were not looking for him. The applicant responded by saying that he had lived at the one address for about seven years and queried why he should move. He also suggested that he was only [doing work in Occupation 1] for the last two years before he left Iran. He said that he was not being sought the whole time, and received a number of cautions, but it was only on the last occasion that the authorities started taking notice of his activities. When the Tribunal pointed out that he the protection visa application form declared that he resided at the same address until August 2011, the applicant then claimed that he moved to grandmother’s house a few days before his departure. The applicant responded that he said at the delegate interview that he moved to his grandmother’s house in the last 10 days before he left Iran.
The Tribunal noted to the applicant that he had declared in the protection visa application form that he worked as a [Occupation 2] in Iran from January 2004 until April 2007, which was inconsistent with his oral evidence about his employment history. The Tribunal also noted that the applicant declared in the protection visa application form that he was working for a private company named [Name 1] from February 2009 to July 2011, which was different to his oral evidence about working for himself [in Occupation 1]. The inconsistency suggested to the Tribunal that the applicant was not working as a [Occupation 1] in Iran as claimed. The applicant’s response what that during the time he was dealing with both [Mr A], who was the coordinator of the UberEats-like business, and [Name 1], from whom he got the [specified] equipment.
In the protection visa application form, he declared that he left Iran from Tehran International Airport [in] August 2011. He departed Iran legally on a passport issued by the Immigration Police in Iran. He no longer has the passport as it was ‘taken away by people smugglers.’ He entered Australia without a valid visa by transiting through [Country 1] to [Country 2] where he entered that country [in] August 2011 and remained [until] November 2011 as a tourist.
At the Tribunal hearing, the applicant told the Tribunal that the passport was obtained by approaching the police. He obtained the passport between 6 months and a year before leaving Iran. He was unsure whether he collected the passport from the authorities or whether it was posted to his home address.
The Tribunal thought it odd that the applicant, who according to his written statement had been ‘caught a number of times and had to face the authorities,’ was arrested and summoned to attend court, and was being sought by the authorities, would be able to leave Iran ‘legally’ as detailed in his protection visa application form. The Tribunal was of the view that if the applicant was being sought by the authorities, he would have encountered difficulties leaving Iran. In response to those concerns, the applicant said that a ‘smuggler’ took him to the airport and told him where he should go, but when asked for specifics, the applicant said that he could not remember. He told the Tribunal that he did not dwell on these things but was able to tell the Tribunal that he found this smuggler through friends and rang the smuggler, and the smuggler told the applicant the details. When asked why he would need to meet a smuggler to depart Iran, the applicant said that he was anxious and worried.
The Tribunal does not find the applicant to be a persuasive witness about his claimed experience [in Occupation 1] in Iran, or his claim that he had been ‘caught’ by the authorities in Iran for [doing work in Occupation 1], or that he was arrested and summoned to attend court in Iran because of his activities. The Tribunal is not satisfied that there is any truth to the claims for the following reasons.
First, the applicant provided inconsistent evidence concerning his claimed employment between what was contained in the protection visa application form, and his oral evidence to the Tribunal. The applicant provided no explanation about why the form read one thing, and his oral evidence was another, instead telling the Tribunal that he worked both jobs until he departed Iran. The Tribunal’s assessment is that the inconsistency is attributable to the fact that the applicant did not [work in Occupation 1] as claimed.

Second, the applicant provided inconsistent evidence, and vague evidence about his employment. Looking at the protection visa application form, it appeared he worked for a private company named [Name 1] [doing work in Occupation 1], but his oral evidence was that he did not work for a company or even have a company himself, but instead [worked in Occupation 1] while also working in an UberEats-like business. In terms of getting the hardware for the [work], all the applicant could say was that he got it from a warehouse from [Name 1]. The Tribunal found the evidence vague and lacking in the specifics of detail that it would be reasonable to expect a person retelling their own lived narrative to provide, such as locations, frequency, costs, storage etc. When coupled with the inconsistency about whether the applicant continued to be employed in the Uber-Easts-like business after 2007, the Tribunal is satisfied that the inconsistency and vague details are attributable to the fact that the applicant did not [do work in Occupation 1] as claimed.
Third, the applicant provided vague details about being ‘caught a number of times’ and having to face the authorities. He was unable to tell the Tribunal about the first time this occurred, the number of times, and what exactly transpired. The Tribunal is not satisfied that this can be attributed to ‘memory problems.’ Rather, the Tribunal is satisfied that the lack of specific detail can be attributed to the fact that the applicant did not [do work in Occupation 1] in Iran as claimed.
Fourth, the Tribunal struggles to accept that if the applicant was of any adverse interest to the authorities in Iran, he would remain living at the same residential address in that country until his departure. He did not claim in his written statement to have relocated to avoid harm, did not detail any other address he lived it, and only suggested he relocated to his grandmother’s address during the delegate interview when the delegate was exploring the applicant’s claimed ‘escape’ from Iran. The Tribunal is not satisfied that the fact that applicant suggested this to the delegate overcomes the concern the Tribunal has about why the claim was not raised in his protection visa application form, and the applicant positively asserted that he had not relocated to another area to avoid harm. The Tribunal also struggles to accept that the applicant’s believe that he had been living at the one address for seven years (according to his evidence) and that he should not have to move, overcomes the concerns that the Tribunal has about why, if the applicant was being targeted by authorities for his activities [in Occupation 1], he would remain in the same residential address.
Fifth, the applicant did not raise in his protection visa application form, or his initial statement, that he used a ‘people smuggler’ so he could depart Iran. The first time that this was raised was during the course of the delegate interview. Although the Tribunal acknowledges that the applicant declared in the protection visa application form that his Iran passport was taken away by people smugglers, he did not detail any assistance that he had from people smugglers to depart Iran. The Tribunal is satisfied that if the applicant used ‘people smugglers’ to depart Iran, he would have specifically declared this in his protection visa application form and would not have been able to describe his departure from Iran as ‘legal.’ His claim about using people smugglers as discussed with the delegate, involved checking whether the applicant is on the ‘blacklist’ and helping the applicant ‘get through the airport.’ The fact that the applicant did not detail these claims in his protection visa application form suggest that the applicant did not engage in a ‘people smuggler’ to depart Iran and that he left Iran without any issue. The Tribunal is satisfied that the applicant was able to depart Iran without any issue because he was not of any adverse interest to the Iran authorities. The Tribunal is satisfied that he is not of any adverse interest to the Iranian authorities because he did not [do work in Occupation 1] as claimed.
Sixth, the Tribunal struggles to accept that the applicant is a witness of truth when he has demonstrated a past willingness to lie to achieve a visa to remain in Australia. He told the delegate that he had attended protests in Iran on three or four occasions when he was interviewed by the delegate on 31 January 2018, and when the inconsistency about whether he attended, the protests was put to the applicant by the delegate. He suggested that this must be an error with translation because he did attend those protests. The delegate decision makes it clear that after reviewing the materials, the applicant specifically said that he did not attend protests because he was busy with his job. By the time of the Tribunal review, the applicant conceded that he had not attended protests in Iran, and that what he said to the delegate was a lie.
The Tribunal struggles to accept the applicant’s explanation that he attended church and was advised not to lie. The explanation suggested that the applicant had decided to confess the untruth to the delegate voluntarily. The Tribunal is not satisfied that this is the case. Rather, the applicant appears to have been caught out in a lie by the delegate and decided to press on regardless. It was only at the Tribunal hearing that the applicant admitted that the claim that he attended protests was untrue. The Tribunal reasons that if the applicant is prepared to lie about some things in order to achieve a favourable migration outcome, then he may be equally prepared to lie about other things to achieve a migration outcome. In combination with the other concerns that the Tribunal has about the applicant’s claims, it comes to the conclusion that the applicant is not a witness of truth.
The Tribunal is not satisfied that the applicant has any profile as a [Occupation 1] in Iran, or that there is a real risk of serious harm to the applicant in Iran due to his claimed conduct [in Occupation 1]. The Tribunal is also not satisfied that there is a real risk of significant harm to the applicant in Iran based on [doing work in Occupation 1] because the Tribunal is not satisfied that the applicant has done so. The Tribunal is satisfied that this claim was manufactured in order for the applicant to be granted a protection visa.
Claimed fear of harm in Iran due to ‘outspoken opposition’ to the Islamic Republic of Iran online and attending protests in Australia
In the protection visa application form, the applicant declared that he had been outspoken by strong opposition towards the Islamic Republic of Iran both online on his social media accounts and by attending protests in Sydney and Canberra. He believes that he would be harmed by Iranian authorities because of this opposition.
In his written statement, the applicant detailed that a protest in Canberra against the Foreign Minister of Iran that he attended in 2016 was televised and reported on multiple news outlets in Australia and Iran.
The DFAT Country Information Report on Iran details at 5.29 that the authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 Revolution and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by Immigration Police at the Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are travelling on a laissez-passer. Questioning usually takes between 30 minutes and one hour but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect criminal behaviour on behalf of the returnee. Arrest and mistreatment are not uncommon during the process. A well-placed source was not aware of voluntary returnees being persecuted for criticising the Islamic Republic, converting to Christianity or proselytising while aboard on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
The report goes on at 5.30 to detail that international observers report that the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in in relation to protection claims. This includes posting social media comments critical of the government, posting protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such case, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activist. The treatment of returnees, including failed asylum seekers, dependent on the returnees’ profile before departing Iran and their actions on return. The report further assesses that, unless a person was subject to adverse official attention prior to departing Iran, returnees are unlikely to attract official attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.
The Tribunal is not satisfied that the applicant has engaged in any significant online activity in opposition to the Iranian government (independent of the online activity discussed later in this decision record concerning the applicant’s claims relating to his claimed conversion to Christianity). The applicant did not provide the Tribunal with any social media post to corroborate this claim, and given the applicant claimed in his protection visa application form that he has been ‘outspoke in my opposition towards the Islamic Republic of Iran both online on my social media accounts’ and directed in that form directs the applicant to provide any supporting documentation to support those claims, it is curious that the applicant would be able to provide no such corroboration. The Tribunal also observes that the applicant has not provided corroborative evidence concerning his claimed attendances at protests in Sydney in Canberra. The Tribunal is unsure whether the applicant has engaged in any of that activity, and suspects that the applicant claimed he had done so in order to support the narrative about his profile in Iran, which the Tribunal ultimately rejected.
In any event, as discussed with the applicant at the Tribunal hearing, the DFAT Country Information Report details the little interest that Iranian authorities have in relation to failed asylum seekers being critical of the Iranian Government while outside of that country. In the event that the applicant was able to show evidence of online posts or that he had protested against the visit of an Iranian Government official to Australia, the Tribunal is not satisfied that the applicant would be of any adverse interest to the authorities in Iran upon his return to that country because of his activities in Australia. This is because, as previously found by the Tribunal, the applicant was not harmed in Iran as he claimed. The Tribunal is satisfied that the applicant would return to Iran as a person who has no experience of harm or adverse attention of the authorities of that country. The Tribunal is not satisfied that the applicant would engage in any online posting critical of the Iranian Government’ or attending any protests in that country because he has not done so previously while in Iran, and the Tribunal is satisfied that upon his return to Iran, the applicant would resume how he lived his life in that country prior to departing which, as the Tribunal found the facts of the case, did not include [doing work in Occupation 1], or coming to the attention of the Iranian authorities.
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Iran due to his claimed activities in Australia that could be classified as opposition to the Iran Government. The Tribunal is also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Iran, there is a real risk he will suffer significant harm as a result of his claimed ‘political activities’ in Australia. Given the totality of the evidence, the Tribunal is not satisfied that the applicant will engage in any activity in Iran that would be considered to oppose the Iranian Government upon his return to that country.
Claimed fear of harm in Iran due to attendance at Christian churches in Australia, conversion of faith, rejecting of Islam, and online presence concerning these matters
In the protection visa application form, the applicant declared that his religion as ‘Christian.’ In that form, the applicant wrote that he has been introduced to the Christian Church in Australia, has been outspoken about his religion on social media, and that his friends and family are aware of his conversion. He believes that he would face harm in Iran because of the attitudes held by Iran authorities regarding his imputed political opinions and apostacy.
In his written statement, the applicant claimed that he became so faithful in Australia since he converted to Christianity, and noted that he was baptised [in] January 2013, participated in his Christian community, and is open about his conversion on social media. He wrote that he did not believe that he could practice his Christianity freely in Iran or live without discrimination in that country.
In support of his claims, the applicant provided various documents, including:
·     A letter dated 6 March 2022 from [Pastor B], who is identified as a Pastor of [Church 1], [Suburb 1], advising that the applicant was known to the author from around November 2012, advising that the applicant attended the author’s church services from November 2012 until March 2013 when the applicant transferred to a Persian Church in [Suburb 2]. The letter confirmed that the applicant was baptised [in] January 2013. The author also detailed what the author had taught the applicant about the ‘mistakes’ of the Quran, and that the applicant feels that if he is returned to Iran, the Islamic Government would persecute, imprison, torture and kill the applicant for rejecting Islam and embracing Biblical Christianity. This document was provided to the Tribunal after the applicant had been invited to appear at the Tribunal hearing.
·     A letter dated 28 January 2018 with a signature from an unidentified person advising that the applicant has been participating in [Church 2] since 2013. This document was provided to the delegate prior to his interview and was not included in the protection visa application form.
·     A screenshot of the ‘[Church 2]’ [social media] page which shows various people, including the applicant. This document was provided to the Tribunal after the applicant had been invited to appear at the Tribunal hearing.
·     A letter dated 24 April 2022 from a person who is identified as a senior member of the [Suburb 2] Iranian Church who wrote that he met the applicant in 2013 and offered the applicant the chance to study the Word of Life course. The author wrote that the applicant continued to attend the Church until the closure of the Church due to the pandemic. This was provided to the Tribunal after the Tribunal hearing.
·     A Certificate for the applicant for completing the ‘Word of Life’ Correspondence Course dated [in] July 2015 from [Organisation 1]. This was provided to the Tribunal after the Tribunal hearing.
·     A Certificate for the applicant for completing the ‘Bible in Outline’ Correspondence Course dated 11 August 2015 from [Organisation 1]. This was provided to the Tribunal after the Tribunal hearing.
·     A letter dated 22 April 2023 from a person who is identified as the applicant’s partner. At the Tribunal hearing, he indicated that they had been together for four years. In the letter, she wrote that she has known the applicant since February 2018 and agreed to meet with the applicant when she knew he had Christian faith. She took him to [a] Catholic Cathedral on one of their first dates. She is Catholic. She wrote that the applicant joined her at Church, and that they attended Catholic masses at other churches and on other occasions. She wrote that the applicant is a good Christian, partner and friend. She noted the applicant attends Farsi speaking services, while she attends Catholic services. This was provided to the Tribunal after the Tribunal hearing.
·     A letter dated April 2022 from a person who confirmed that the author has known the applicant for over seven years and is one of the author’s religious friends at the Persian church in [Suburb 2]. The author details the applicant’s study of the Bible and speaking of the qualities of the applicant’s Christianity. This was provided to the Tribunal after the Tribunal hearing.
·     A letter dated 25 February 2022 from a person who identifies as the secretary of [Church 2], which the author noted as permanently closing due to the pandemic. The author wrote that the applicant was part of the Church from 2013 to 2022 and regularly attended church services, Bible studies and other programs organised by the Church, as well as volunteering for other duties.
·     A Certificate of Baptism for the applicant dated [in] January 2013 signed by [Pastor B] of [Church 1]. This was provided to the Tribunal after the Tribunal hearing.
·     Six screenshots of what appear to be [social media] posts showing the applicant standing next to Santa Claus, posts that the applicant has shared from [Church 2], as well as posts relating to Jesus. This was provided to the Tribunal after the Tribunal hearing.
·     Nine photographs of the applicant which he identifies as being taken at [Church 2], as well as an attendance at a Catholic Church and at [Church 1]. This was provided to the Tribunal after the Tribunal hearing.
At the Tribunal hearing, the applicant said that he had been attending Church about 3 or 4 months prior to being baptised in January 2013. The Tribunal discussed with the applicant why he had not raised his protection claims concerning his conversion to Christianity as part of his POD of 14 March 2012, or his IPA of 14 August 2012. The applicant told the Tribunal that none of this was raised because he was either not a Christian convert at the time of those applications, or due to the fact that a week before a hearing for the IPA matter his representative could not attend the hearing, and he attended by himself.
The Tribunal noted that the applicant was baptised one month before he commenced judicial review proceedings in February 2013, asked about the timing of his baptism. The Tribunal wondered whether the applicant had only become a Christian convert in Australia in order to be granted a protection visa. The applicant told the Tribunal that in 2012 he could see his friends being granted protection visas, which he was not, and did not know what to do. His friends suggested that he attend Church as well. Once the applicant started attending Church, he claimed he was treated very well, and he was swift to convert. He denied only engaging in activity related to Christianity in Australia in order to be granted a protection visa and suggested that if he was not genuine, he would have started attending Church services in immigration detention as lots of people did that. He went to Church because he was feeling down as when he was in Australia, he had no job and had not been accepted as a refugee, and his life was very hard.
In a written statement received on 29 April 2022 after the Tribunal hearing, the applicant wrote that he did not his interest or following of Christianity in 2012 as part of the POD or IPA because his interest in Christianity started in middle 2012, which he said was after August 2012, but claimed that he started to deviate from Islam prior to that. The wrote about his journey to Christianity after discussing with colleagues and friends in Australia about religion and started to attend [Church 1] in [Suburb 1] with them. He detailed what he learned from [Pastor B] at that Church and his attendances. He changed to the [Suburb 2] Church in March 2013 because it offered Persian services. The applicant wrote that he did not mention Christianity or going to Church at that time and did not raise Christianity in his judicial review applications because it was judicial review and not merits review. He detailed his belief in Jesus and why he became baptised in January 2013. The applicant requested the Tribunal take reasonable steps to contact the people who provided supporting statements about his Christianity.

The applicant also wrote that Christians and Christian converts face serious harm in Iran, and directed the Tribunal to the following articles that he suggested his representative had provided and were attached to the statement, namely:
·     ‘Iranian Christians sentenced to give years in prison for apostacy,’ 9 March 2021, Asia Today online
·     ‘The Islamic Republic’s Intolerance to Christian Converts, Explained,’ 25 August 2021, Iranwire online.
·     ‘Iranian election set to intensify Christian persecution,’ 22 June 2021, Anglican.ink online
·     ‘Iran’s Islamic regime wages ‘full-on attack’ against Christians,’ 22 August 2021, OpendoorsUSA online
·     ‘Iran is squeezing Christians and other minorities out of the Middle East, researcher says,’ 22 February 2022, Catholicnewsagency, online
·     ‘Iran’s Christians facing systemic persecution,’ 23 May 2013, Baptistpress, online
·     ‘Persecution of Iranian Christians Accelerated in 2021 as part of broader repressive trend, 26 January 2022, NCRIran, online
·     ‘Iran seeks regional eliminationism of Christians,’ 3 July 2022, Persecution, online.
The Tribunal observes that there was no accompany submission from the representative addressing how the contents of those articles were to be evaluated by the Tribunal against the content of the DFAT Country Information Report.
Following the change of representative after the Tribunal hearing, the applicant provided the Tribunal with the following on and 13 May 2022 respectively:
· Six pages of what appear to be posts on a [social media] account in the name of the applicant, sharing posts from [date] December 2012, [date] May 2013, [date] July 2013 and [date] October 2013 from Jesus Daily, as well as photos with the applicant with people who the Tribunal assumes are fellow parishioner of his Church, and sharing a link of [Church 2] on [date] March 2018.
· Seven pages of what appear to be posts on a [social media] in the name of the applicant, sharing posts from [date] June 2017, [date] February 2018, [date] June 2019 and [date] May 2017 in Farsi, accompanied by English translations, demonstrating that the posts relate to Christianity.
On 1 August 2022, following what the Tribunal assumes was the receipt by the new representative of the documents requested under the FOI application, the applicant provided the Tribunal with the following:
·     ‘Iran continues to persecute Christians in violation of international law,’ 21 January 2020, Jpost, online
·     ‘Persecution forces some Iranian Christians to flee,’ 30 July 2021, Mnnonline, online
·     ‘Iranian Christian converts face violation of their rights,’ 31 January 2022, Iran Human Rights Monitor, online
·     ‘Freedom in the World 2022 – Iran,’ Freedom House, online
·     ‘Iranian Christian Coverts Interrogated and Imprisoned,’ 26 April 2022, Persecution, online.
·     ‘No place for Converts: Iran’s Persecuted Christians Struggle to Keep the Faith,’ 5 May 2022, RadioFree Europe
·     ‘World Watch List – Persecution in Iran – Open Doors USA,’ 1 August 2022, Open Doors USA
The applicant’s new representative also provided the Tribunal with an eight-page submission, referring the articles and submitting that persecution against Christian and Christian Converts continue in Iran, the Iranian regime continues to target and harm ex-Muslims, and that converts from Islam to Christianity face real risk of harm.
The Tribunal considered all the evidence provided in support of the applicant’s claims related to his renunciation of Islam, conversion to Christianity in Australia, and public profession of this conversion, including his online activity.
The Tribunal accepts that people may genuinely abandon their faith or embrace another religion (or none). The Tribunal accepts that the applicant has engaged in Christian services in Australia, been baptised into Christianity, has not undertaken any religious observance as a Muslim in Australia, and has publicly posted on social media evidence that he participates in Christian services (or is associated with Christianity) in Australia.
However, given the other concerns the Tribunal has about the applicant’s credibility as detailed in the claimed experiences of past harm, and in combination with the following, the Tribunal is not satisfied that the applicant is a genuine Christian convert in Australia. The Tribunal is satisfied that the applicant’s claimed conversion, his baptism, and his attendances at various Christian churches and activities, as well as his online social media posts, were done singularly to be granted a protection visa. It follows that because the Tribunal is not satisfied that he is a genuine Christian convert, he will not participate in any activities associated with Christianity in Iran. The Tribunal is satisfied that whatever his religious practice was in Iran prior to his departure from that country (if any), he will resume that practice upon his return to Iran. There is no evidence that the applicant’s previous religious practice (if any) in Iran resulted in him being harmed and the Tribunal is satisfied that the applicant will not be harmed in Iran in the future in connection with his religious practice in that country (if any).
The Tribunal accepts that there are a number of letters of support from various authors which attest to the applicant’s attendance at Christian churches in Australia. The Tribunal accepts that the applicant has attended and participated in the activities as claimed. The Tribunal also accepts the genuineness in the beliefs expressed in the letter that the applicant is a genuine Christian-convert. The Tribunal accepts that if it spoke to all of the authors, they would repeat the contents of their written statements and their belief in the fact that the applicant is a genuine convert to Christianity. As genuine as the authors’ belief may be, the Tribunal is not persuaded that their beliefs about the genuine nature of the applicant’s conversion and participation in various Christian activity in Australia overcomes the Tribunal’s assessment that the applicant is not a genuine Christian convert.
In the circumstances of this particular applicant, the timing of the applicant’s claimed developing interest in Christianity, when evaluated with the other concerns that the Tribunal has about the applicant’s credibility, satisfy the Tribunal that once his protection claims were finalised unfavourably to him in August 2012, he decided to become a Christian convert as a way of achieving a protection visa. The Tribunal is satisfied that the applicant’s explanation about why he did not talk about his Christianity in the course of his PDO and IPA is consistent with the fact that he was not a Christian-convert during that time, and only became interested in the idea of converting to Christianity after that time when he became aware, as he suggested at the Tribunal hearing, of friends who were obtaining protection visas on the basis that they had converted to Christianity.
Concerning the various articles that were provided by the applicant and his representatives during the visa application process and the course of the review, none of those articles appear to undermine the DFAT Country Information Report about the risk of harm faced by claimed converts to Christianity who had undertaken conversion in another country and returned to Iran but not practised or engaged in activities that relate to Christianity. As best the Tribunal can understand the articles provided, the articles relate to Iranians who have converted to Christianity inside Iran and practice their new faith in that country. This is different from the facts as the Tribunal has found them concerning the applicant.
Based on the Country Information Report, the Tribunal is not satisfied that the Iranian authorities will have any interest in the applicant’s activities associated with Christianity in Australia, including his social media posts. As the Tribunal is not satisfied that the applicant engaged in any of the conduct in Australia for a genuine purpose, the Tribunal is satisfied that the applicant’s conduct will cease in Iran, and he will be of no adverse interest to the authorities in that country.
Concerning the claims that the applicant is an apostate, or a person who has renounced Islam, those claims are intertwined with his claimed conversion to Christianity in Australia. The DFAT Country Information Report makes it clear that there is little interest by the Iranian authorities in the apostacy or renunciation of Islam of its citizens while overseas. The Tribunal is not satisfied that the applicant would be of any adverse interest to any person, authority or group in Iran because of the activities in Australia.
The Tribunal is satisfied that upon returning to Iran, the applicant would resume whatever religious practice he had in that country (if any) prior to his departure. There is no evidence that his religious practice (if any) resulted in him being harmed in that country previously, and it is remote in the extreme to suggest that if the applicant returned to Iran and resumed whatever religious practice he had in that country prior to his departure (if any) that there would be a real chance or real risk of harm to him in that country.
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Iran due to his claimed conversion to Christianity, or the imputations arising from the claimed conversion to Christianity, such as a rejection of Islam, or a rejection of the politics of Iran, apostacy, or any other integer of that claim. The Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Iran, there is a real risk that he will suffer significant harm because of his activities in Australia associated with Christianity.
Claims related to being a failed asylum seeker returning from a Western country
In the protection visa application form, the applicant does not make any claim that he will be harmed because he is a failed asylum seeker returning from a western country. The Tribunal became aware of that claim when the applicant’s former migration agent made a submission on 3 March 2022 raising this claim for the first time. In that submission, it was suggested that this would ‘open the doors of probable accusations of wrongdoings, both in regard to political and social fields imposed by the regime to failed asylum seekers.’
The DFAT Country Information Report on Iran details at 5.29 that the authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 Revolution and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by Immigration Police at the Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are travelling on a laissez-passer. Questioning usually takes between 30 minutes and one hour but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect criminal behaviour on behalf of the returnee. Arrest and mistreatment are not uncommon during the process. A well-placed source was not aware of voluntary returnees being persecuted for criticising the Islamic Republic, converting to Christianity or proselytising while aboard on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
The report goes on at 5.30 to detail that international observers report that the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in in relation to protection claims. This includes posting social media comments critical of the government, posting protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such case, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activist. The treatment of returnees, including failed asylum seekers, dependent on the returnees’ profile before departing Iran and their actions on return. The report further assesses that, unless a person was subject to adverse official attention prior to departing Iran, returnees are unlikely to attract official attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.
At the Tribunal hearing, the Tribunal discussed the above information from the DFAT report, but the applicant disputed the contents of the report, suggesting that the authorities in Iran would be interested in him because of his profile in Australia. Turning to question about how the applicant would return to Iran, the applicant accepted that he would be issued an Iranian passport, given that he had been issued one previously.
The applicant’s claim concerning the harm he would face as a returnee from a Western Country was limited to the harm that he would face by virtue of his activities in Australia, which the Tribunal has dealt with separately. The question is whether the applicant would be harmed in Iran by virtue of the fact that he would return to Iran as a failed asylum seeker from a Western country.
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Iran due to the fact that he sought asylum in a Western country based on the material in the DFAT Country Report indicating that Iranian authorities have little interest in returnees who had no previous profile in Iran. The Tribunal is also satisfied that there is no real chance of serious harm to the applicant in Iran due to the fact that he sought asylum in a Western country because, apart from making that bald claim, he did not particularise any claimed fear of harm independent of the harm he claimed to face in Iran independent on his claimed profile in Australia. The Tribunal is also not satisfied that the applicant would return to Iran without an Iranian passport being issued to him, given that has held one previously. This would mean that the applicant would avoid any of the questioning suggested in the DFAT Country Information Report. The Tribunal is satisfied that the applicant would apply for an Iranian passport to allow his return to Iran because the Tribunal is satisfied that the applicant’s protection claims are not genuine, and he applied for a protection visa for reasons not connected with Australia’s protection obligations. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Iran as a failed asylum seeker from a Western country, there is a real risk he will suffer significant harm.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Iran due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Iran, there is a real risk that the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies either s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

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

[2023] AATA 3287

7 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction