1809582 (Refugee)

[2022] AATA 2330

1809582 (Refugee) [2022] AATA 2330 (13 May 2022)

Corrigendum

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sara Khodajoo (MARN: 1467027)

CASE NUMBER:  1809582

COUNTRY OF REFERENCE:                   Iran

MEMBER:Justin Meyer

DATE OF DECISION:  13 May 2022

DATE CORRIGENDUM

SIGNED:6 July 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Substitute the word Iran for the word Malaysia at paragraph 13.

Justin Meyer
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Ms Sara Khodajoo (MARN: 1467027)

CASE NUMBER:   1809582 COUNTRY OF REFERENCE:   Iran

MEMBER:  Justin Meyer

DATE:  13 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy

s 36(2)(a) of the Migration Act.

Statement made on 13 May 2022 at 10:17am

CATCHWORDS

REFUGEE – protection visa – Iran – religion – conversion to Christianity – imputed political opinion – royalist family member – cultural festival – torture – employment – killing in detention – physical assault – extra-marital relationship – honour killing – returned asylum seeker – mental health issues – decision under review remitted

LEGISLATION

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

CASES

MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220

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.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicants or any relative or dependant of the applicants.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The applicants who claim to be citizens of Iran, applied for the visas on 29 May 2017. The delegate refused to grant the visas on the basis that he was not satisfied that the first applicant was a refugee as defined by s5H(1) of the Act and also not satisfied the first applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. He was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iran, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act. Therefore, the first applicant was not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.

3.The applicants appeared before the Tribunal on 25 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [the first applicant] and [the second applicant].

4.The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5.The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6.A purported s.438 non-disclosure certificate was on the department file which specified only client file number and not numbered folio documents, therefore its validity is not accepted. Documents however are marked in the department file individually as non-disclosure matters. These are department file matters warranting to be withheld (and thus they have not been disseminated by the Tribunal), but they have no bearing on the outcome of this case as they concern other persons not linked to this matter.

CRITERIA FOR A PROTECTION VISA

7.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.

8.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.

9.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).

10.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.

11.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

12.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

13.The issues in this case are whether the applicants have a well-founded fear of being persecuted in Iran for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that they will suffer significant harm.

14.For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Identity

15.The applicants’ identities are established as [an age]-year-old female, and her [age]-year-old daughter, as evidenced by Iranian passports. There is passport evidence before the Department and the Tribunal confirming identity and nationality.

Mental Health

16.I have taken into account the first applicant’s mental health bearing in mind the psychological/ psychiatric opinion and evidence submitted.

17.I have given consideration to the first applicant’s mental state at the time of the hearing. She was mostly lucid throughout the hearing and could answer questions with some confidence. She was given time to compose her thoughts. She was informed of her opportunity to call for a break at any time. Although the hearing was possibly stressful, she was capable of giving evidence competently. I have taken into account her GP’s report detailing mental or psychological health illnesses and the treatment that she requires, and that she is taking

[medication] daily for her Depression and chronic anxiety disorder. The hearing was conducted in accordance with breaks where needed and having questions repeated if necessary, and limiting the likelihood of forceful exchanges in the hearing.

18.The Tribunal’s Migration and Refugee Division’s Guidelines on Vulnerable Persons were applied in this case. The representative assisted the first applicant with her case by providing written submissions and written evidence to the Tribunal. The first applicant appeared to have a good understanding of the obligation to be truthful in her communication of evidence.

Procedural Background to the Case Before the Tribunal

19.The case has a protracted history which is summarised as follows:

[Date]/07/2010	Unauthorised Maritime Arrival, detained under s189(3)
29/08/2010	Refugee Status Assessment commenced
18/09/2010	Placed in Community Detention
10/12/2010	Negative Refugee Status Assessment
31/12/2010	Independent Merits Review requested
02/09/2011	Negative Independent Merits Review
[Date]/11/2011	Appealed to the (then) Federal Magistrates Court
[Date]/02/2012	Minister withdraw at the (then) Federal Magistrates Court
23/03/2012	Positive Independent Merits Review
26/07/2012	Temporary Humanitarian (subclass 449) visa granted
29/09/2015	Department initiated Ministerial Intervention under s46A(2) to allow an application for a Temporary Protection (subclass 785) or a Safe Haven Enterprise (subclass 790) visa
31/05/2017	Valid application for a Safe haven Enterprise (subclass 790) visa

20.Claims, as stated to the department

·     Her previous claims of being a stateless Faili Kurd were a fabrication. She is [ethnic group specified], from Ahwaz, and an Iranian citizen. Her name is [the applicant’s name], not [Alias A], and her family composition is as that detailed in her statement of 10 November 2017. She left Iran using a genuine passport. She provided incorrect information on the advice of her people smuggler, and other Iranian detainees.

·     Her family hosted an annual Shahnameh reading ceremony (festival). Her father was the main organiser. The Shahnameh is the national epic of Iran. About 20,000 to 30,000 would attend the festival each year. The authorities perceived the festival to be against the Islamic Republic (as it celebrated a narrative of the pre-Islamic conquest Persian kings) and gave the applicant’s family trouble for hosting it. In 2008 or 2009 her father and her [Brother A] were detained for organising the festival. After his release her father was afraid and he told the applicant and another brother, [Brother B], to go to Australia. Her father was concerned that if all the family left at once it would arouse the suspicions of the authorities.

·     Her father founded [a product business] prior to the 1979 revolution. He was out of favour with the current regime, and was barred from public sector employment. His children, including the applicant, were also barred from public sector employment.

·     Her [Brother C] was a politically active royalist. He was imprisoned for his activities. The authorities gave him injections which over time led to his death. He died in prison in 2004.

·     She has been attending a Christian church since April 2017. She recently converted to Christianity.

·     If she returns to Iran she fears being killed because she is her father’s daughter, and because She also fears persecution for her membership of a particular social group, ‘failed asylum seeker or returnee from a Western country’.

·     Her daughter, the second applicant, has lived in Australia since she was [age]. She speaks little Farsi.

21.The applicants made these written submissions to the Tribunal:

Family’s political activities

While the delegate accepted that the applicant’s father had some involvement in a festival that celebrated Iran’s national epic, the Shahnameh, he had the following concerns about the applicant’s claims regarding her family’s political activities in Iran:

·     She had limited knowledge of the Shahnameh despite her family’s involvement in organising the festival.

·     Her description of the raid on her father’s home was unconvincing and she did not readily recall all the injuries she suffered at the hands of the Basij.

·     There was a delay in her departing Iran after being assaulted and her flight preceded her father’s departure from Iran by three years.

·     She first raised these claims in November 2017 despite most of her family members having departed Iran by 2013.

·     Her lack of knowledge about her father’s past and employment history and that he was viewed unfavourably by the authorities.

·     That neither she or nor her other family members who had sought asylum in Australia had previously mentioned that her [Brother C] had been murdered by the authorities for his royalist activism.

·     The applicant has provided responses to these issues in her statutory declaration and does not wish to make further statements in relation to her family’s political activities. an anti-government opinion. Also, it cannot be concluded with confidence that the applicant will not face harm because of her family’s previous activities in Iran.

It should be pointed out that shortly after the applicant’s arrival in Australia, she did in fact mention that she was advised by the people smuggler not to make political claims because her family in Iran would be put at risk and that the interpreter might sell the information to the government of Iran. She also described her house being attacked by the Basij. Therefore, these claims are not entirely new.

We submit that the ‘What if I am wrong?’ test from MIEA v Guo (1997) 191 CLR 559 should apply. This test was further explained by the Full Federal Court in MIMA v Rajalingam (1999) 93 FCR 220, which held that there may be circumstances in which the decision maker must take into account the possibility that alleged past events occurred even though those events probably did not occur.

We also refer to the following extracts from the Administrative Appeal Tribunal’s

Guidelines on the Assessment of Credibility:

A person may not be able to remember all the details of his or her personal history or reconstruct the chronological order of particular events. A person may remember events that affected him or her most in emotional or physical terms but not the time sequence. Such confusion and forgetfulness do not necessarily imply that a person is not telling the truth. However, contradictions, inconsistencies and omissions in evidence may, although not necessarily, mean that a person’s evidence is unreliable and, therefore, lacks credibility. The lack of credibility of a person’s account because it is unreliable does not necessarily imply that the person is dishonest.

A person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons. A person may not reveal the whole of his or her story because of feelings of shame, for fear of endangering relatives or friends or because of mistrust of persons in positions of authority.

The tribunal should be mindful not to impose too high a standard when assessing an individual person’s level of knowledge. The tribunal should not require a person to provide an unrealistic degree of precision and detail in statements if this knowledge would not be expected of a person in the position claimed by a person.

Conversion to Christianity

The delegate was not persuaded that the applicant’s conversion to Christianity is genuine. He was particularly concerned that her engagement with the Christian faith and church appear to be perfunctory and that her other asylum-seeking siblings have also converted to Christianity while her Australian citizen sibling has not. The delegate further asserted that the chance of the applicant’s activities coming to the attention of the authorities in Iran is remote and that there will not be any ongoing risk to her.

The applicant has provided a recent letter from her Pastor at [Church 1], [Leader A], which confirms that she began attending church in February 2017 and that she was publicly baptised [in] September 2017 after being interviewed about her knowledge of the Christan faith by him and the Senior Pastor of the church, [Leader B]. [Leader A] also describes how the applicant has a close relationship with other members of the Iranian congregation and how she actively participates in the children’s program and in prayer groups.

It is noted that the applicant has now been regularly attending church for a continuous period of over 5 years, which implies that she has a genuine commitment towards the Christian faith and no longer regards herself as a Muslim. Contrary to the

delegate’s claims, we submit that the applicant had a reasonable amount of knowledge about Christianity during her SHEV interview in December 2017, considering that she had been attending church for less than a year at that time.

It is submitted that the applicant’s previous misrepresentations to the Department and the fact that her other asylum-seeking siblings also attend church should not be used to make an adverse credibility finding or to dismiss the applicant’s claim that she has converted to Christianity. It appears that the delegate did not arrive at his decision with an open mind and was selective in his treatment of evidence which created an apprehension of bias. Overall, based on the evidence provided by the applicant, her reasonable knowledge of the Christan faith, her regular attendance at church, and involvement in church activities, we submit that the applicant’s conversion of Christianity is genuine and sincere. It submitted that the applicant’s renouncement of Islam and conversion to Christianity will expose her to a real risk of significant harm in Iran. We refer to the following extracts from the most recent DFAT Country Information Report on Iran

Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy…The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors.

DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.

Amnesty International’s recent report on Iran also provides the following:

Freedom of religion and belief was systematically violated in law and practice. The authorities continued to impose on people of all faiths, as well as atheists, codes of public conduct rooted in a strict interpretation of Shi’a Islam. The authorities refused to recognize the right of those born to Muslim parents to convert to other religions or become atheists, with individuals seeking to exercise this right risking arbitrary detention, torture and the death penalty for “apostasy.” With consideration to the relevant country information, the Administrative Appeals Tribunal has previously on several occasions found that an applicant from Iran who has converted to Christianity in Australia would be exposed to a real chance of harm by the authorities if they returned to Iran.

Furthermore, under section 5J(3)(c) of the Act, the Applicant cannot be required to modify her behaviour including altering her religious beliefs, or renouncing a religious conversion, or conceal her true religious beliefs, or cease to be involved in the practice of her faith; or alter her political beliefs or conceal her true political beliefs.

Family violence claims

Should the Tribunal not accept that the applicant is owed protection on account of satisfying s.36(2)(a), it is submitted that protection is owed as a result of the applicant satisfying s.36(2)(aa). This section requires that the applicant be a person in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk he or she will suffer significant harm. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment

The applicant wishes to raise a new claim in relation to an issue which occurred after her visa application was refused. In her statutory declaration dated 18 March 2022, the applicant describes how around 8 years ago, she began an extra-marital relationship with man of Iranian background, [Mr A]. In 2021, the applicant decided to end the relationship, a fact which [Mr A] refused to accept. He consequently informed the applicant’s husband in Iran about the relationship and continually threatened and harassed the applicant, which resulted in her going to the police. A family violence final intervention order was made against [Mr A] [in] July 2021, and this is valid until [July] 2023. The applicant’s husband has threatened to kill her and her daughter if they return to Iran. Based on his previous behaviour and cultural values, the applicant is genuinely concerned that he will carry out his threat and they will be the victims of an honour killing.

We refer to the following extract on honour killings in Iran from the most recent DFAT report:

There are no reliable statistics on the prevalence of ‘honour killings’ in Iran. Honour killings are defined as a murder committed or ordered by a relative as a punishment to a family member who is seen – or suspected – to have damaged the family’s reputation by their actions. Such actions can include extramarital sex, refusal of an arranged marriage, choosing one’s own spouse without the family’s approval, becoming a victim of rape, homosexual acts, or liberal behaviour and dress.

International human rights observers note that honour killings are an established phenomenon in many of Iran’s outermost provinces, particularly in areas where state infrastructure is scarce and tribal traditions strong.

The Penal Code does not specifically criminalise honour crimes and, in line with sharia principles, provides for reduced sentences for those who commit them. For example, Article 630 includes provisions on the husband’s right to kill his wife and her lover if they are caught in the act, while Article 303 states that judges cannot issue a ‘retribution crime’ punishment against fathers or grandfathers who kill their children.

In cases where authorities have attempted to stop the phenomenon of honour killings by sentencing some perpetrators to long prison terms (as has reportedly occurred in Khuzestan Province), new strategies have quickly evolved to circumvent these punishments, including through hiring third parties to commit the murder. In cases of honour killings, it is extremely unlikely for the head of the victim’s family to demand punishment. Most perpetrators of honour killings therefore serve only a short prison sentence or avoid punishment altogether. Another report6 on honour killings and violence against women in Iran also provides the following: The incidence of violence against women has increased worldwide since lockdowns to prevent the transmission of COVID-19 were implemented. Iran already had high levels of violence against women, with a reported 8000 so-called honour killings between 2010 and 2014.

A possible link between honour killings and various demographic factors, such as poverty, low social status, and rapid modernisation, has recently been suggested.4 Within Iran, provinces with the highest rates of honour killings also have the highest rates of unemployment and poverty. Unemployment, desperation, and anger might predispose a man to violence.

In February 2022, a 17-year-old girl from Ahvaz, Iran (the same city which the applicant is from) was beheaded by her abusive husband in a so-called honour killing after she had run away to Turkey to live with a man she had met online.

Mental health issues

The applicant has been diagnosed with depression and chronic anxiety disorder and has been prescribed anti-depressant medication, as evidenced by the attached letter from her general practitioner, [Doctor A]. In [Doctor A’s] opinion, the applicant would suffer irreversible, life-threatening psychological damage if she were to now return to Iran.

We refer to the following extract from the most recent DFAT report regarding mental health services in Iran:

The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are prohibitive financially for the average person. A small number of NGOs work in the field of mental health, but these outfits are generally under-resourced. It is submitted that the stress associated with returning to her home country after almost 12 years and her inability to access adequate mental health treatment would inevitably worsen the applicant’s mental health conditions and that of her daughter’s. Given the exceptional circumstances of the applicant’s situation, it can be argued that the exacerbation of her mental health conditions for these reasons would amount to torture, or cruel, inhuman or degrading treatment.

It is acknowledged that the applicant recanted her original claim of being a stateless Faili Kurd in late 2017 and made a new set of claims, and as such, her credibility is a serious consideration for the Tribunal. Nonetheless, it is our submission that benefit of doubt should be afforded to the applicant and her credibility should not be automatically dismissed based on the responses she gave to the questions in the 2017 interview. We submit that the applicant’s personal circumstances and level of education and sophistication, as well as fact that the incidents took place several years ago, should be taken into consideration when assessing her credibility.

Although the applicant did not raise these claims earlier and was unable to provide detailed information about the Shahnameh and her father’s employment during the interview, this does not refute the assertion that the applicant and her family

22.[Leader A], a Pastor of an Iranian Congregation of [Church 1], wrote in support of the applicants: He has known them since February 2017 when they started attending Iranian church services. The first applicant attended baptismal classes, given in Farsi, for fourteen weeks at his church. She was interviewed on her understanding of the Christian faith and Jesus, and he heard her testimony. She demonstrated an appropriate understanding of the questions to which she must assent to at baptism and was willing to publicly commit, and was baptised [in] September 2017.She was described as having a very friendly and close relationship with other members in our Iranian congregation and voluntarily serves in a children’s program during church services. She participates in prayer groups at the end of worship services to pray for others.

23.The first applicant also submitted an intervention order of 2021 from a Victorian court against her former boyfriend.

24.The first applicant’s evidence in the hearing was in these terms:

25.The first applicant said she came to Australia because she had a problem with the Iranian government.

26.In regard to the Shahnameh she said her father read it once a year. The government did not like people reading it. They tried to stop it. The father wanted to continue doing it. She said she faced the same problem

27.I asked the first applicant whether there was any other reason that made her want to depart Iran. She said the authorities were bothering her and her friend. They were bothering her against reading the Shahnameh. They were attacking their reading. I asked the first applicant what attacking the session involved. 20,000 people attending the ceremony and people were attacking it trying to stop the situation and bothering her family.

28.I asked if she was among the 20,000 people to which she replied yes. This was in 2009. She was pregnant at the time. The father was at the village. The authorities invaded her house. This is while she had just given birth, she had left hospital four days before. She recalled the month [in] 2009. She said one day after the gathering of 20,000 people they came to her house. She was at home. The first applicant listed a number of things. There was a ceremony performed in the village. The first applicant then changed her evidence and said that she was not in the Shahnameh as she was giving birth.

29.The first applicant said 2013 her brother arrived by boat in Australia.

30.The first applicant said that she first became interested in Christianity 2016. She was depressed at that time and she started attending English classes. A friend asked her why she was depressed and offered to take her to church. She started attending church and liked it. She said she had faith in it. She got baptised in 2017. The first applicant named the church’s Iranian congregation. The first applicant could name the friend who introduced her. She attended church regularly, however during the pandemic she joined online.

31.The services are on Saturdays between [specified times]. There is a Persian speaking pastor named [Leader A]. The first applicant said that she had been attending for six years. There are approximately 40 people attending which is a reduced number due to the pandemic.

32.I asked the first applicant about what appealed to her about church and Christian faith. She said she had a good feeling. She said praying is a good energy. She said she works in [a specified group] and “looks after the church’s kids”. She has prayed for persons in this church in a group. I asked the first applicant about what things she prayed for. She said that she prayed for people whose relatives were sick. She has asked people to pray for her a lot. This was because she was sick. She also said her mother had [a medical condition] three years ago and she faced the same problem. She had a small surgery as well. However, she ended her treatment. She did not like to think about it. She could remember the name of the friend to pray for her and the names of other people.

33.The central figure in Christianity was Jesus Christ the first applicant said. To her this meant that he is God. She said that she needed Jesus because she was in a deep depression. She believed in him and said that Jesus Christ had done a lot for her.

34.The Tribunal asked about the first applicant about Jesus’ role and she said he was crushed due to our sins. She first started reading the Bible in Farsi. She discussed the gospel introduction of God being the word and in the world. She could recount the story of Christmas and knew that it was celebrated in the Christian calendar on 25 December. She described Mary as Jesus’s earthly mother and how Christ had risen from the dead.

35.Other people who knew were family in Australia. No one knows about her faith in Iran except her husband. This was an explanation for why her ex-husband was angry. Her daughter attended church as well. Her daughter went to a government school. If she had to go back to Iran she would still read the Bible and would still pray. She said she would talk to other people about Christianity. The first applicant said that while working full-time she talk to other people about Christianity. She talked to clients as she was in the [specified] sector. She would encourage people. She said she had faith in Christianity. She said that she distributed pamphlets. The Tribunal noted that the department’s delegate said that she was a low risk if she returned to Iran and she was not very active. She replied that her Christian faith is a personal matter. She said that she did not go to church to strengthen her case. She said that her sister was a Muslim and also turned Christianity. She said that being silent is not true Christianity and it was insulting for the department to claim what it had. She would not back out of Christianity.

36.The first applicant said that her daughter had been in Australia since a young age and could not read and write in Persian. She has never met her father in real life and cannot remember him. She does not want to meet him.

37.The first applicant suffers from depression and anxiety. She received prescription medication from her GP. It helps and makes her more alert.

38.I asked the first applicant if she was interested in politics or whether that was only other members of her family. The first applicant said that her sister was a royalist as well.

39.The first applicant said that she had no trouble leaving Iran using her Iranian passport.

40.Her husband remained in Iran. This was because the first applicant had the problem and not him. I asked the first applicant whether her husband would have had problems by virtue of being married to her. She told her husband that she was going and not coming back. He accepted this. Her last contact with him was a year ago.

41.The first applicant previously had a boyfriend in Australia but the relationship had ended badly. Her former boyfriend sent photos to her husband of him together with her and told stories about her.

42.I asked whether the first applicant had experienced violence from her first husband when she was living with him in Iran. She said he had a bad attitude. He hit her. He had not hit their daughter, however. She was still married to him, because getting a divorce was problematic – she could not see how. He is an angry and vengeful man.

43.Her brother had obtained protection in Australia, but she did not know the grounds.

44.She is Persian-speaking majority Iranian and had invented an earlier claim that she was a Faili Kurd when trying to arrive in Australia by boat, on the advice of people smugglers and other boat arrivals.

45.She has no other relatives in Iran, her parents having passed away.

46.The first applicant said she had previously been an adherent of Islam because of her parents, but they did not really believe in it. She has no Christian ancestor and only one relative is a Christian – her brother in Australia.

47.She knew little of her late father’s work - he had been in [a specialist area]. It was put that she had invented a claim that he had started [a product business]. She said that he had been working in [this area] after the revolution, but she knew little about this because he did not speak of it to the children. The first applicant could not say whether her late father worked for [a product business] (presumably a post-revolution nationalised one) or for himself and was vague on detail.

48.The first applicant said her late brother and her sister were royalists – they wanted the monarchy to return and were against the Islamic republic.

49.The Tribunal enquired about the first applicant’s brother’s cause of death. She said that she was in Iran at the time - her brother was sent there for distributing royalist pamphlets. A call was then received that her brother had died in prison. He was [age] years old.

50.The first applicant considered it possible that her brother was tortured in jail and died as a result.

51.The Tribunal asked if the first applicant recalled what she had told the department as to how he died. She said she could not remember and had memory difficulties, adding: “I cannot remember what I did two days ago” The Tribunal notes from the decision record that she had in past said that the authorities gave her brother injections which over time led to his death. Although memory problems can of course occur and there has been a passage of time and prescription drugs prescribed for the first applicant’s mental health issues, the Tribunal was still unable to reconcile how the first applicant did not recall her theory as to death of her brother. This would have been a life-changing event for a wider family and would make a large impact. Even when prompted there was little acknowledgement of the earlier belief or theory as to the brother’s death. The first applicant said that she had not suggested poisoning, only that the coroner had said that he had died of “too much injection”. It was surprising that this prompting led to a memory but then there was an attempt to make a fine distinction between an injection and a poisonous substance. It was never cleared up as to whether this was a deliberate overdose, poisoning or something else and matters were not reconciled despite the first applicant being given the chance. In all, the Tribunal developed severe doubts about this evidence.

52.The second applicant’s evidence in the hearing was in these terms:

·     She is not good in speaking Persian and does not understand it. If she had to go to Iran she would be sent back several years in education have to start prep. She has never met her father. Before the pandemic she was playing with friends and her father called her. He asked who her friend was to which the second applicant said it was a boy. Her father started screaming at her that she will not speak to talk to boys. The friend comforted her. She considered her father to be a selfish brat with his requirement that she only talked a female friends.

Evaluation and findings

53.The Tribunal has considered the claims and evidence of the applicants and the other information submitted. For these purposes the Tribunal has also considered all of the evidence made and produced by the applicants. Based on consistent claims, the Tribunal accepts the following fundamental facts about the applicants:

·The first applicant is [an age] year-old married female from Iran. The second applicant is her [age]-year-old daughter.

·The applicants were nominal adherents of Shia Islam in Iran.

·There is a family violence order (final) against the first applicant’s former boyfriend in [Court 1].

·The first applicant has suffered, and is suffering, from mental conditions and issues such as anxiety and depression.

·The first applicant is estranged from her husband who remains in Iran.

·The first applicant left Iran after telling her husband face to face, with his acquiescence.

54.The Tribunal has concerns about the following evidence and claims and finds it not to be genuine:

·The first applicant’s recollection of being at a Shahnameh reading ceremony (festival) and participating in it wavered from time to time and she adjusted her evidence apparently when realising that her involvement could not be what was claimed, as she was about to give birth or gave birth. Her recollection was poor and undetailed. I find that her family did not host such an event. Her father was not a main organiser. I find officials did not give the first applicant’s family trouble for hosting it.

·The first applicant’s recollection of her father’s involvement in [a product business] prior to the 1979 revolution was vague, contradictory and unsatisfactory. She abandoned claims that he founded a company. I have no reason to find that he was out of favour with the current regime, or barred from public sector employment, or that his children, including the first applicant, were also barred from public sector employment. The first applicant I find knew practically nothing of what her father did specifically and has either incorrectly believed or embellished her claims.

·The first applicant’s reasoning as to her brother going jail and being tortured and dying there was thin and unsatisfactory. She had poor recall of her earlier claims on this matter and their details. She had in past said that the authorities gave her brother injections which over time led to his death. For the reasons outlined earlier I cannot accept that such a life changing event for a family cannot be consistently recounted. It was never cleared up as to whether there was a belief about a deliberate overdose, poisoning or something else and matters were not reconciled despite the first applicant being given the chance. I developed such severe doubts about this evidence that I reject it and any purported events.

Country information

55.The Tribunal discussed the following DFAT country information1 with the first applicant and has given it consideration, as is required:

3.49

Unrecognised Christian Groups (House Churches)

1 DFAT Country Information Report Iran, April 2020

The Penal Code strictly prohibits proselytisation by religious minority groups — it is a capital crime for non-Muslims to convert Muslims. Against this background, the three recognised minority religions do not proselytise or accept converts. Strict instructions not to minister to Iranians apply to all recognised churches, including the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. To enforce this prohibition, authorities closely monitor recognised churches (see Christians). DFAT understands that recognised churches regularly receive telephone enquiries from individuals falsely claiming to be interested in converting, as a way of testing their adherence to the prohibition on converts.

3.50

Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. The secrecy surrounding house churches makes it impossible to provide an exact number of house churches or unrecognised Christians in Iran. The Special Rapporteur on the situation of human rights in Iran estimates there are between 300,000 and 350,000 Muslim converts to Christianity, with international Christian advocacy groups citing significantly higher numbers. While precise figures are elusive, Iran has a growing unrecognised Christian population.
DFAT understands a high percentage of unrecognised Christians are Farsi-speaking converts from Islam, or the children of converts. Some converts reportedly travel to Turkey (with which Iran has visa-free travel arrangements) to be baptised, then return to Iran and practise in private. Local sources claim many converts are unhappy with being designated Muslim at birth and wish to explore their religious identity. Others see adopting Christianity (albeit surreptitiously) as a form of protest against the government.

3.51

According to international observers, house churches exist across Iran, particularly in major cities. DFAT understands that most house churches follow evangelical Protestant teachings and tend to be situated in more affluent and liberal parts of major cities (including north Tehran). House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi-regular basis to pray, worship, read the Bible and/or watch Christian television programs broadcast via satellite or discs smuggled from abroad (including in Farsi). Other house churches may be larger, and may grow organically as members share their faith with family and friends. While some groups do not have any formal links with other Christian groups, others are part of house church networks within a particular city or area. Some house church leaders are trained in Christian theology (either online, via Christian satellite television or through residential courses completed outside Iran). A growing number of house churches have ‘Internet pastors’, where a foreign-based preacher leads the church and provides instruction remotely via the Internet. DFAT understands that house church congregants regularly change houses to avoid detection.

3.52

Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Raids focus particularly on house churches that actively proselytise or seek out new members. DFAT is unable to verify if the frequency of raids of house churches is increasing or whether a DFAT Country Information Report IRAN (April 2020) 33 warrant is required to execute a raid. Local sources were unaware of any raids in the first half of 2019, although raids may not necessarily be publicised. According to the UK Home Office, the authorities use

informants posing as converts to infiltrate house churches. Where the authorities receive a report of a house church, they may initiate a monitoring process to survey and collect information about its members. Local sources told DFAT that the authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours.

3.53

The judiciary has handed down long sentences in relation to house church activities. In July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’, and sentenced the group to between 10 and 15 years’ imprisonment. Among those sentenced were Victor Bet-Tamraz, an Assyrian Christian pastor and former head of the Assyrian Pentecostal Church in Iran, and a Christian convert arrested during a private Christmas gathering in Bet- Tamraz’s Tehran home. In January 2018, Bet-Tamraz’s wife was sentenced to five years in prison for ‘acting against national security by organising house churches, attending Christian seminars abroad and training Christian leaders in Iran for the purpose of espionage’. Bet-Tamraz and his wife have been released on bail, but reportedly remain the subject of close surveillance. A priest, Ebrahim Firouzi, was arrested in 2013 on allegations of ‘promoting Christian Zionism’ and handed a five- year prison sentence on charges of acting against national security.

3.54

According to media reports, nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released). Christian advocacy groups claim that authorities pressure some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents or forcing them out of their jobs).

3.55

DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment.

Members of larger congregations that engage in proselytisation activities and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. Of particular interest to the authorities are the leaders of house church congregations, who, according to local sources, face a higher risk of arrest and prosecution than ordinary congregants.
According to these sources, while there have been instances of ordinary congregants being prosecuted, this is not common — most are released.

3.56

Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to

the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities.

Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low (see Religiously-Based Charges).

3.57

International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 DFAT Country Information Report IRAN (April 2020) 34 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees). DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed.

Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment.

3.58

DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.

56.The Tribunal evaluates the Christianity claims of the first applicant. It considers that the first applicant is a long-standing and regular churchgoer in Australia. Her inclination is towards a more evangelical and evangelistic faith judging by the denomination she has joined and the individual activities of the Iranian congregation that she is a member of. The letter from her pastor corroborates this.

57.The first applicant gave a plausible account of her faith to the Tribunal. She could explain the main aspects of the Christian faith, what they meant to her and key figures in the Bible.

58.I find that she engages in evangelising in daily life, including in her workplace as she described. It appears that her life has had several challenges and she finds meaning in her beliefs. The Tribunal concluded that if returned to Iran she would continue her Christian practice and would continue to talk to others about her faith. She does not have Christian ancestry or traditions and would be unlikely to attend one of the ‘established’ denominations in Iran and would be most like to be in a home-church style group.

59.The Tribunal in considering the DFAT report would not consider her to be a convert who would avoid harm by maintaining a low profile, and not openly proselyting. It does not consider her to be low risk in this regard. Her conversion may well become widely known. She has an estranged husband who I find has acted in a hostile fashion towards her and may add this to his grievances against her, thereby exacerbating her risk.

60.The first applicant’s daughter is entirely dependent on her and is a minor, I conclude would have her mother’s active Christianity imputed to her as she would her accompany her mother.

61.Therefore, I find that the applicants have a well-founded fear or persecution on the grounds that they are evangelistic Christians (their religion).

62.The risk they face is a moderate risk and is a real risk now and in the foreseeable future if they are returned to Iran. There is no evidence they can live elsewhere as a safe third country.

63.Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. The Tribunal finds that there are no effective protection measures available to the applicants, within the meaning of s.5J(2).

64.Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. However, this does not apply to a modification that would (among other things), require the person to alter a 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: s.5J(3)(c)(i)

65.In the present case, the applicants cannot be required to conceal their religious practice or forego the option of worshipping, in order to avoid a real chance of persecution. Section 5J(3) therefore does not apply to his circumstances.

66.The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of religion. For these reasons the Tribunal accepts the applicants have a well-founded fear of persecution in all areas of Iran for the reasons stated.

67.It follows that the Tribunal accepts that the applicants have a well-founded fear of persecution for the purposes of s.5J. In considering whether they come within the definition of a refugee contained in s.5H, it accepts that they are outside the country of nationality and unable to return to it owing to their well-founded fear of persecution. Therefore, they meet the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicants. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicants are refugees.

68.For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

69.The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Justin Meyer 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.

…