1815047 (Refugee)

1815047 (Refugee) [2023] AATA 3219 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815047
COUNTRY OF REFERENCE:                   Iran
MEMBER:Member Nathan Goetz
DATE:29 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 June 2023 at 10:14am
CATCHWORDS
REFUGEE – protection visa – Iran – member of atheist group – atheist tattoo – anti-religious activities – arrest – torture – ex-wife granted protection visa – divorced – delay in protection application – criminal offences – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424A, 424AA, 425(1), 438, 499
Migration Regulations 1994 (Cth), Schedule 2, r 1.12
CASES
EZC18 v MHA [2019] FCA 2143
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
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 report on Iran is dated 14 April 2020.
BACKGROUND
The applicant identifies as [age]-year-old male citizen of Iran presently located in Australia.
[In] May 2012 the applicant arrived in Australia holding a vocational education and training sector visa with his then-wife and son. The applicant and his son held those visas as ‘dependents’ on the applicant’s then-wife’s visa. The applicant’s visa was valid until 15 September 2015.
On 26 June 2015 the applicant applied for a postgraduate research sector further stay visa with his then-wife and son. On 28 September 2015 the applicant was granted the visa. The applicant and his son held those visas as ‘dependents’ on the applicant’s then wife’s visa. The applicant’s visa was valid until 30 December 2017.
On 19 October 2015 the applicant applied for a protection visa with his then-wife and son. His wife was making claims for protection, but the applicant and his son sought to be granted the protection visa only on the basis that they were members of the same family unit: s 36(2)(b) or (c).
The applicant told the Tribunal hearing that he and his wife separated [in] May 2016 and the coupled divorced sometime in 2017.
On 9 December 2016 the applicant, his wife and child were found by a delegate to meet the criteria for a grant of protection.
On 6 July 2017 a delegate made an ‘addendum’ to the protection visa assessment. The applicant was found not to meet the requirements for the grant of the protection visa because he was no longer a member of the same family unit.
On 19 July 2017 the applicant’s former wife and son were granted protection visas by a delegate of the Minister.
On 24 July 2017 the delegate wrote to the applicant and noting that he was not a member of the same family unit, the applicant was invited to submit his own claims for protection. On 26 September 2017 the applicant submitted documents to the delegate raising his own protection claims.
On 13 October 2017 the applicant was interviewed by a delegate concerning his protection visa application. On 15 May 2018 the delegate refused to grant the applicant the protection visa on the basis that he did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act. On 23 May 2018 the applicant applied to the Tribunal for review of the decision to refuse to grant the applicant the protection visa.
On 8 February 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing commencing at 10:30am on 24 February 2022 via Microsoft Teams. The Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the issues under review because the Tribunal had considered the material and was unable to make a decision favourable to the applicant.
On 24 February 2022 the applicant appeared by audio-visual link at the Tribunal hearing via Microsoft Teams. The Tribunal was satisfied that an appearance by audio-visual link was appropriate because the applicant resided in Queensland and the Tribunal Member was based at the Sydney registry.
CONSIDERATION OF CLAIMS AND EVIDENCE
Three protection visa application files were provided to the Tribunal.
The first file concerned the protection visa applications of the applicant, his wife and his son. After the applicant and his wife had separated, it appears two new files were created. One file was for the applicant, and the other for the applicant’s wife and son. The Tribunal has considered the content of those three files.
The Tribunal notes that the earlier department file contains a notification regarding the disclosure of certain information under s 438 of the Act. The notification purports to prohibit the disclosure of the information contained in folios 59-68, 71, 83, 85, 92-96 of the earlier files. It was submitted that the information contained in those folios should not be disclosed to the applicant because it contained information provided in confidence by the applicant’s now ex-wife since the couple’s separation.
The Tribunal made the applicant aware of the existence of the certificate at the Tribunal hearing.
The Tribunal accepts that the information was provided in confidence. Broadly speaking, it details a change in the family circumstances, the fact that a domestic violence order had been made in favour of the applicant’s now former wife against the applicant, the addendum to the earlier protection visa assessment (which the applicant would have been aware of given what the delegate wrote to him about no longer being a member of the same family unit, the applicant’s now ex-wife’s national police certificate, and the applicant’s ex-wife’s and son’s successful protection visa assessment.
There was nothing contained in the folios that would be a reason, or part of the reason, for affirming the decision under review to enliven the statutory obligations under s 424A/424AA of the Act. Likewise, there was nothing contained in the folios that undermined the applicant’s claims or concerned the Tribunal to mean that, as a matter of procedural fairness, the Tribunal was required to discuss its concerns with the applicant. If there was any such evidence, and the Tribunal proposed to rely upon those concerns, the Tribunal would have raised the concerns arising from the material with the applicant and discussed those concerns with him at the Tribunal hearing.
Applicant’s personal particulars
The applicant’s personal particulars are detailed in the protection visa application form dated 15 October 2015 and was completed with the assistance of a registered migration. The form declared that the applicant’s statements and other information was read back to him in his own language.
The applicant detailed that he was born in Tehran, Iran and that he is an Iranian citizen. He declared his ethnicity as ‘Persian,’ his religion as ‘Atheist’ and his occupation as ‘[deleted].’ He detailed that he was married [in] October 2004 in Iran. At the Tribunal hearing, the applicant told the Tribunal that he and his wife were now separated and divorced. They separated [in] May 2016 and were divorced sometime in 2017. He was unsure of the date in 2017 because the only information he had that he was divorced was what his now former wife told him. The applicant said that the couple had not applied for their marriage to be recognised as divorced in Iran.
The applicant declared that he left Iran legally from Emam Khomeini Airport [in] February 2012 on an Iranian passport that was issued [in] 2009 and expiring [in] 2014. He left Iran lawfully noting his last arrival in Australia as May 2012. At the Tribunal hearing the applicant said that he replaced that passport when it expired and that he was issued a new Iranian passport that was valid until 2019. He has not applied for another Iranian passport.
Claims raised in protection visa application form - 2015
In that protection visa application form, the applicant was asked whether he was making his own claims for protection. He declared he was not. Accordingly, he did not identify his reasons for leaving Iran, what he thought would happen to him if he returned to Iran, identify whether he had experienced harm in that country, what help (if any) he sought within Iran if he did experience any harm, whether he moved or tried to move to another part of Iran to seek safety, or identify the harm he claimed he would face if he returned to Iran.
Claims raised in statutory declaration – 2017 and Tribunal discussion
In an email from the applicant’s migration agent to the delegate on 15 August 2017 (clearly in response to the applicant no longer being a member of the same family unit as his wife and child), the agent identified that the applicant was raising his own claims for protection. He requested time for the applicant to detail his protection claims.
A statutory declaration was made by the applicant dated 26 September 2017. In that statement, he detailed that while his father was a student at [University] (and before the Ismail revolution), he was arrested for holding religion sceptics meetings and was imprisoned. The applicant’s father spent time in prison on other occasions after the Revolution, but the applicant’s father was able to get him out of prison. The applicant claimed that he was questioned often about his father, himself and his family. He claimed to have been arrested twice for speaking to girls before he was [age] years of age and taken to police stations.
He claimed that while at university, he met likeminded people and had religion and Islamic government critique meetings. He claimed he was summonsed several times by the University Basij Forces regarding his activities, and in 1997 he was banned from attending university until the end of term due to taking part in speech and chanting anti-religious slogans. He returned to the University and joined in an uprising at the University concerning murders committed by the Ministry of Information and closure of reporting newspapers. This led to his arrest, and he was detained and tortured for one week. His [was] injured as a result of the torture. He was released through family friends and had surgery. He did not receive a certificate of completion of his university studies and was only handed a confirmation of completion of the course. He wrote that this left him extremely depressed, and he was prompted to do more research about religions and attend more secret meetings. He was arrested during at the 2001 anniversary of a student uprising and was beaten and detained. During this detention he was attacked by a person with a knife and [was] injured. He claimed he was detained for one month and was beaten by an official which resulted in fractures. He was released for hospitalisation and had complex surgery. After he was recovered, he decided to relocate to northern Iran.
After meeting his wife, the couple decided to return to live in Tehran. He applied to complete his Masters degree but his application was denied because he had a ‘political record.’ He and his wife had discussions and decided to leave Iran and study abroad. They studied in [Country 1]. The applicant said that during all his years in [Country 1], he introduced himself as an atheist but did not freely express his views because of the religious atmosphere in that country. The couple decided to move to Australia to take advantage of the political and religious freedoms in Australia.
The Tribunal noted that in the applicant’s protection visa application form he did not make any claims for protection. The Tribunal observed that this was discussed between the delegate and the applicant at the interview. The applicant attributed the fact that he was not making any protection claims due to his lack of English and because he did not have any lawyer to assist him. The Tribunal observed that the protection visa application form indicated that he had used a migration agent to complete the form, which appeared suggest the contrary. The applicant responded by saying that the person who assisted to complete the form was his wife’s representative, and when he and his wife separated, he was referred to another representative, which was the representative who he used to raise the claims submitted to the delegate. When the Tribunal indicated that it was struggling to understand why, if the applicant’s claimed past experiences and his fear of future harm were true, he would not put those claims in his protection visa application form. The applicant said that he did not need to do this because he was dependent on his wife’s claims.
The applicant told the Tribunal that his wife was the ‘main applicant’ for the protection visa out of ‘respect to her.’ He thought his wife would put his protection claims in the form, but she did not. The applicant claimed that he did not read the protection form, despite signing it. The applicant suggested that any claim that had subsequently raised that was not included in the protection visa application form was attributable to the fact that his wife was responsible for the protection visa application.
According to the statement, he joined [an atheist group] in November 2014 and attended several meetings. He claimed that prior to coming to Australia, he looked on the internet for information concerning Atheism and also published statements concerning atheism. He allowed his name to be associated with Atheism because he believed in atheism. He continued to publish information while studying in [Country 1]. During all the years in Iran and overseas he expressed that he does not belong to any religion, and he is an atheist. He has either done so in person or on the internet.
He wrote that he believed that he will be arrested and punished by the Iranian authorities because he is a strong believer in Atheism which is seen as a serious crime and is punishable by death as a penalty. He claimed that members of his wife’s family would question his belief in atheism and try to persuade him not to be an atheist, and that many members of his wife’s family are members of Sepah (which the Tribunal understands to be the Islamic Revolutionary Guard Corps) and will be eager for him to be arrested and killed for his belief.
The applicant wrote that when his father came to visit the applicant in Australia, he told him that the applicant’s wife’s father had become aware of their atheist beliefs and said that the applicant and his wife were not return to Iran because the couple would be arrested and put on trial for being an enemy of Islam. The applicant fears for his life in Iran because he had expressed his views publicly and would be in danger because of his political record.
In the applicant’s statement, he detailed that the applicant and his wife had separated, and he noted that an Apprehended Violence Order (AVO) had been granted against him. He noted that he had a son and that he had limited access to his son. The Tribunal makes it clear that whether an AVO was made against the applicant, or any allegations about the circumstances of the end of the applicant’s marriage is irrelevant to whether the applicant has a well-founded fear of persecution in Iran, or whether there is a real risk of serious harm to the applicant in Iran.
At the Tribunal hearing, the Tribunal noted that in the course of the review, the applicant provided medical reports to show that he had a newborn child, a boy [born] on [date]. The applicant identified that the mother of the child was a woman named [name] and that they were not married or presently in a relationship. He confirmed that the birth of this child did not relate to his protection claims.
The Tribunal advised the applicant that it had his protection visa application form that was completed in 2015, and that it wanted to make sure that the information was still correct, given the passage of time. In the course of the Tribunal hearing, the applicant confirmed that he arrived in Australia dependent on a student visa, that he had no right to enter and reside in any third country.

He told the Tribunal that he was divorced sometime in 2017 in Australia. He had not received any paperwork about this, but his wife had told him of this. He said that the divorce was not finalised in Iran and according to Iranian law, he and his wife were still married.
The Tribunal noted that the applicant declared that he had no criminal history and asked if this was still the case. The applicant said that was correct, but he had a car accident and was remanded in custody for a period of time (which he later suggested was 2 months duration) but suggested that he had not been charged with any offence. He then suggested he was taken to the [Local] Court and pleaded not guilty and was let go. When the Tribunal indicated that it was not possible to be remanded in custody and appear before a court and be found not guilty if he had not been charged with an offence, he responded by telling the Tribunal that he was charged with predatory driving. He said that this was the only charge he had, and that he had no outstanding criminal cases.
The Tribunal indicated that it was concerned that the applicant would tell the Tribunal that he had not been charged with a criminal offence, but that in the resulting discussion it would appear that he had been charged with predatory driving (as the applicant described it). The applicant said that this was a driving offence and he had been released, in response to the Tribunal’s question about why he told the Tribunal that he had not been charged with any criminal offence.
The Tribunal also indicated that it had concerns about the applicant’s truthfulness because in January 2017 the applicant provided the delegate a National Police Certificate which showed that he was found guilty at the [second] Local Court [in] October 2016 of common assault. The fact that the applicant told the Tribunal at the Tribunal hearing that he had not been charged with any criminal offence suggested that the applicant had a flexible approach to the truth. The applicant responded to the Tribunal’s concern about his truthfulness stating that he could not remember this. When the Tribunal indicated that it was struggling to understand how the applicant could not remember such a thing, the applicant said that he did not read the papers and just went to court where he received a good behaviour bond. He put the inconsistency down to a language barrier and contrasted this with the driving offence, which he told the Tribunal about.
Turning to his migration to Australia, the applicant was asked what his intention was when he arrived in Australia in 2012. The applicant said that he and his wife were living in [Country 1] but found that country very dangerous because of his atheist opinion, but they also moved for his wife’s studies in Australia. In terms of what he and his wife planned to do when his wife completed her studies, the applicant said that they did not plan to return to Iran as they felt very unsafe there. When asked whether he intended to remain in Australia permanently at the time of his arrival here in 2012, the applicant did not answer the question directly, but said that he could not lodge a protection visa at the time because they held student visas. They planned to apply for protection visas at the end of his wife’s studies. He attributed the delay of three years to a desire to avoid any ‘conflict’ with the student visa. When asked to explain what the ‘conflict’ would be, he said that he heard that this would occur from a friend, but he could not remember who the friend was.
The Tribunal noted that the applicant held a student visa that was valid until 30 December 2017. Given his explanation that he did not apply for a protection visa when he arrived in Australia in 2012 because he was on a student visa, the Tribunal asked why he applied for the protection visa in 2015, some two years before the student visa was to cease. The applicant said that he did so because he was aware that it took some time for a protection visa to be granted.
In the delegate decision record, there is reference to the applicant having an Atheist tattoo. The applicant showed the Tribunal his tattoo. It is located on [deleted]. The applicant claimed that he got the tattoo in [Country 1]. He did not have any documentary proof to show when he got the tattoo (such as a tax invoice or photographs) and told the Tribunal that he got the tattoo touched up in Australia because it was fading. This was done on the Gold Coast in either late 2012 or the start of 2013.
Given that the applicant claimed to have gotten the tattoo in [Country 1], the Tribunal asked the applicant why there was no reference to the tattoo, and the risk he faced in Iran because of the tattoo, in his written statement in September 2017. The applicant said he did not detail this because he was ‘unaware of the rules’ and just ‘let the agent do everything.’ He suggested that the risk he faced from the tattoo was raised by his wife in her protection visa application form.
The applicant claimed he practised his atheist beliefs by not taking part in any religious activity and questioning religious activity. When asked about whether he was a member of any groups connected with atheism, he indicated that he was, identifying [online] groups. He also told the Tribunal that he was a member of [an atheist group] in Australia and joined that group about 6 months after he arrived in Australia, but that he had stopped being a member of that group recently because he was struggling financially. He had not paid his membership fee since 2021. He also found that there was no need to be a member of that group because it started to look like a church. The Tribunal notes that in his wife’s protection visa application she claimed to have been introduced to atheism by the applicant, but otherwise does not detail her husband’s claimed fear of persecution in Iran, or claimed real risk of significant harm in Iran.
The Tribunal noted to the applicant that in his protection visa application form, he detailed travel to [Country 1], and [Country 2]. The history provided by the applicant in the form is as follows:
·     From [December] 2006 to [April] 2007, he was in [Country 1].
·     From [April] 2007 to [April] 2007, he was in [Country 1].
·     From [August] 2008 to [April] 2009, he was in [Country 1].
·     From [April] 2009 to [April] 2009, he was in [Country 2]
·     From [April] 2009 to [January] 2011, he was in [Country 1].
·     From [November] 2011 to [April] 2012, he was in [Country 1].
·     From [April] 2012 to [May] 2012, he was in [Country 1].
The gaps in the between dates demonstrated that the applicant had returned to Iran on numerous occasions. At the Tribunal hearing, the Tribunal asked the applicant why he would return to Iran from [Country 1] on various occasions if he had experienced the harms he claimed. The applicant responded that he once had to return to Iran because of visa issues, and another time was because his grandfather died, and he had to show respect. He claimed that each time he returned his parents were waiting at the airport to ‘bail him out’ if required, and that he had a few friends at the airport with connections to protect him. The Tribunal indicated that this suggested that the applicant was safe in Iran, but the applicant disputed this. He told the Tribunal that he did not make any inquiries about remaining permanently in [Country 1] because it was a religious country, and he did not feel safe there. He told the Tribunal that he completed his Masters in [Country 1]. The Tribunal asked the applicant why he would remain in [Country 1] if he did not feel safe there. The applicant said that he did so because it was not as extreme as Iran. The Tribunal noted that the frequent return to Iran suggested that the applicant did not face a risk of harm in that country. The applicant put his ability to return (and depart) from Iran to a friend of his father being able to ‘clear the records.’
The applicant told the Tribunal that if he returned to Iran ‘bad things’ would happen to him. He claimed that atheists are executed in Iran. When the Tribunal noted to the applicant that the DFAT Country Information Report on Iran indicated that the last time a person was executed for atheism was in 1990, the applicant disputed that this was the case. He claimed that the government and religious family members would harm the applicant, noting that his wife’s aunt’s husband was an executioner and they had received ‘threats.’
The Tribunal asked the applicant to identify how he would practice his atheism in Iran if required to return to that country. He said nothing about this, other than to assert that he would be arrest because his Iranian passport is now expired and his name and that of his wife are on a backlist. He claimed if required to return to Iran he will kill himself.
Noting to the applicant that he had provided various copies of [social media] pages to the delegate, the Tribunal asked the applicant whether he had done any posts since the copies he provided to the delegate. He said he had.
In response to the suggestion that the applicant had only gotten a tattoo, posted on [social media] and become a member of [an Atheist group] in Australia to obtain a protection visa (and not because of any genuine belief of support of atheism), the applicant disagreed. He claimed he lived his whole life as an atheist and grew up that way because of his father.
During the course of the visa application process, the applicant provided a number of documents. Not all documents are relevant to whether the applicant has a well-founded fear of persecution or whether there is a real risk the applicant will suffer significant harm. As best as the Tribunal can identify, the documents relevant to the claims include:
·     Confirmation of a payment made [in] September 2017 to the Atheist [group] for the sum of [amount].
·     Confirmation of a booking made on 28 September 2017 of an event with Simon Longstaff in association with the Atheist [group].
·     An email from the [atheist group] dated [October] 2017 confirming renewal of his membership.
·     A receipt made out to his wife dated [August] 2012 from the Atheist [group], for the sum of [amount] for ‘I year double membership.’
·     A letter dated [October] 2017 from [name deleted] who was identified as [a] manager at the applicant’s employer, which detailed that the applicant had no religious affiliation and spoke of his qualities as a worker.
·     A letter dated [October] 2017 from [name deleted], who was identified as a team leader at the applicant’s employer, which detailed that the applicant had expressed to the author that he is an atheist, as well as detailing the applicant’s qualities as an employee.
·     A letter (undated) from [name deleted], who was identified as [a] team leader at the applicant’s employer who wrote that the applicant does not practice any religion but respects every person’s right to do so, as well as detailing the applicant’s qualities as an employee.
·     A screenshot of a [website] page for the applicant, indicating that he had been a member since [January] 2017 and attended 1 [event].
·     Screenshots of the applicant [social media] page where he is described as a ‘[deleted] Atheist.’ The page provides various photos of the applicant and others. The period of posting is from 2009 until October 2017. The delegate summarised the posts (which the Tribunal accepts as an accurate summary) as follows:
Prior to 18 December 2012 there are no posts concerning atheism.
In 2012, the applicant made two posts concerning atheism on 8 December and 18 December
In 2013, the applicant made four posts concerning atheism, on 7 October, 28 October and 29 October
In 2014, the applicant posted the atheism symbol
In 2015 the applicant made eight posts concerning atheism on 21 January, 11 February, 12 February, 14 May, 16 December, 16 February, 6 March and 8 May.
In 2016, the applicant made one post concerning atheism on 3 November
In 2017 the applicant made eleven atheism posts on 3 August, 5 August, 6 August, 18 August, 12 September, 28 September, 1 October, 14 October, and 21 October.
In 2018 the applicant made no posts concerning atheism.
·     An Instagram account for the applicant [which] is noted as private. However, the applicant provided photos that are posted on that private account.
·     A letter dated [October] 2-16 advising that the applicant’s wife has been a member of that [atheist group] since August 2016.
·     A statutory declaration from the applicant’s father, dated 7 April 2015 detailing that he met with the applicant’s father-in-law in March 2015 in Tehran, and he advised the author that family and relatives noticed that the applicant’s daughter has a new religion, and they talk about it. The author suggested that this made Iran too dangerous, and a new home must be found. The author also wrote that he was asked to tell the applicant and his wife to note return or visit Iran under any circumstances because it would be a risk to their life.
FINDINGS AND REASONS
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 a person who holds a protection visa because they are a refugee or meet the requirements for complementary protection.
Having considered all of the evidence, and weighing it up, the Tribunal has ultimately concluded that the decision under review should be affirmed.
Identity and country of reference
The Tribunal is satisfied that the applicant is a male citizen of Iran with no other citizenship or right to enter and reside in any third country. The Tribunal is satisfied as to the applicant’s identity and citizenship based on the applicant’s Iranian passport that was produced to the department as part of the visa application to come to Australia.
Therefore, the country of reference for the protection visa assessment is Iran.
Protection claims
In a submission to the delegate by the applicant’s then migration agent on 16 January 2018, it was noted that the applicant had (at that time) one child and the delegate was referred to Article 3 of the United Nations Convention on the Rights of the Child. The representative wrote that if the applicant’s child has become an Australian Permanent resident this is of great concern to the applicant because the child may lose his father if returned to Iran through serious harm. It was contended that the child would be emotionally and psychologically and be detrimental to the child’s wellbeing and maturation. It was suggested that the decision-maker should consider the bests interest of the child in this matter.
The question is whether the applicant has a well-founded fear of persecution in Iran because of his race, religion, nationality, membership of a particular social group, or political opinion, or in the alternative, whether 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 chance he will suffer significant harm. Consideration of the ‘best interests’ of a child is irrelevant to the statutory test. The Tribunal is not satisfied that in the event the applicant is not in Australia and separated from his child, protection obligations are enlivened.
The applicant claimed at the Tribunal hearing that if he is required to be removed from Australia to Iran, he will kill himself. That does not mean 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. Concerning whether the applicant’s self-harm would be significant harm for the purpose of complementary protection obligations, EZC18 v MHA makes it clear that the risk of suicide upon return does not amount to a real risk of the appellant being arbitrarily deprived of his life.[1] The Tribunal is not satisfied that risk of suicide by the applicant means that he will be arbitrary deprived of his life, or suffer any of the other definitions of significant harm provided by the complementary protection criterion.
[1] EZC18 v MHA [2019] FCA 2143, upholding the judgment at first instance in EZC18 v MHA [2019] FCCA 464. The Federal Court held that, in the alternative, there was nothing arbitrary about the removal of the appellant from Australia and the receiving of him by the UK, there being nothing to suggest that the appellant’s removal under s 198 of the Act would be other than lawful: at [47].
Turning to the claims that, if the Tribunal accepted were true, would be capable of either demonstrating that the applicant meets either the ‘refugee’ or ‘complementary protection’ criterion, the Tribunal makes the following findings.
The Tribunal is not satisfied that the applicant is a genuine atheist. The Tribunal is satisfied that it can make these findings despite the applicant’s wife and son being found to be owed protection obligations by a delegate. The Tribunal is not bound by a finding by a delegate concerning either the facts or the statutory criterion for anyone else’s protection claims.
The Tribunal did not find the applicant to be an impressive witness. The Tribunal found the applicant to be prepared to hide truths from the Tribunal concerning his criminal history in Australia, and in combination with the delay in applying for protection (having arrived in Australia in 2012), the fact that no protection claims were advanced on behalf of the applicant when he applied for protection (October 2015) and the other concerns that the Tribunal has concerning the applicant’s credibility, it comes to the ultimate conclusion that the applicant is not a genuine atheist and has only engaged in posting atheism material on [social media], joining the [atheist group] and engaging in its activities, or advising people at his place of employment that he was an atheist in order to lend credibility to his claims.
The Tribunal is not persuaded by the applicant’s explanation about why he initially told the Tribunal that he had not been charged with criminal offences. While the Tribunal accepts that English is the applicant’s second language and that allowances must be made for that, the Tribunal’s assessment is that it was only when the illogicality of the applicant being remanded in custody for two months despite his assertion that he had not been charged with a criminal offence became apparent to the applicant that he belatedly acknowledged that he had been charged with predatory driving. The Tribunal’s assessment is that the applicant wished to hide this charge from the Tribunal because the applicant presumed it would negatively impact on his protection claims. The Tribunal notes that this would not be the case. The issue is the fact that the applicant tried to hide the fact he had been charged, which demonstrates to the Tribunal that the applicant was prepared to not be truthful in order to be granted the protection visa.
The determination that the applicant is prepared to be untruthful is also demonstrated by the fact that, even after there was a discussion concerning the driving offence, with an apparent acknowledgement that the applicant had in fact been charged (and acquitted), the applicant told the Tribunal he had not had any other criminal charges. This was clearly not true. The applicant’s own evidence provided in support of the protection visa application to the delegate was that he had been charged and found guilty of an assault on his wife. Yet, when he appeared at the Tribunal hearing, he claimed that he no criminal charge. The Tribunal is not persuaded by the applicant’s explanation that he thought that he had no criminal record because he received a bond meant that he had not been charged. The Tribunal’s assessment was that the applicant presumed the Tribunal would not be aware of the assault charge and hoped to hide this from the Tribunal because he thought it would negatively impact whether he received a protection visa. The Tribunal is not concerned about whether the applicant has a criminal history or not, because that is not relevant to whether the applicant satisfies s 36(2)(a) or (aa) of the Act. The Tribunal was only concerned about the fact that the applicant was not truthful and prepared to hide the fact he had been charged. This demonstrates to the Tribunal that the applicant is prepared to say whatever he thinks will help him obtain a protection visa, regardless of whether it is true or not.

Concerning the specifics of the applicant’s claims, the Tribunal first turns its mind to the applicant’s claimed past experiences of harm in Iran.
To the Tribunal’s way of thinking, if the applicant had experienced any of the claimed past harm in Iran, which included multiple arrests, assaults, a hinderance to his academic achievement, and being put on some sort of list, the applicant would have detailed those past experiences of harm when he completed his protection visa application form which was submitted in October 2015. He did not do so. The Tribunal finds it curious in the extreme that the applicant would only seek to be granted a protection visa based on his membership of the same family unit as his wife if he had experienced the harm he claimed. The Tribunal is not persuaded by the applicant’s explanation that he made his wife the main applicant out of ‘respect for her.’ Rather, the Tribunal suspects that when it appeared to the applicant that he was not going to be granted a protection visa because he was now no longer a member of the same family unit, the applicant fabricated the backstory of what he claimed had occurred to him in Iran in order for him to be granted a protection visa.
While the Tribunal accepts that the applicant’s wife did write that she was introduced to atheism by the applicant in her protection visa application form, given the totality of the evidence and the facts as the Tribunal finds them, that assertion by the applicant’s wife does not overcome the Tribunal’s concerns that the applicant’s claims for protection based on his atheism were fabricated in order to grant a protection visa.
The Tribunal also struggles with the applicant’s explanation about the delay lodging the protection visa. If the applicant were to be believed, he had arrived in Australia in 2012 after experiencing serious harm due to his profile in Iran. Curiously, he was able to depart Iran ‘legally’ as claimed in his protection visa application form despite being a person of interest to the authorities in Iran. However, that evidence later changed to being assisted by family connections at the airport. That claim was not detailed in the protection visa application form and the Tribunal assesses that if the applicant departed Iran (on any of the occasions he did so) it could not be argued that he departed legally from that country, as he has had assistance to bypass whatever restrictions would have been in place. Otherwise, there would be no need for assistance from family connections.
The applicant initially told the Tribunal that the reason for the delay in applying for the protection visa was because he was on a student visa, and the plan was to lodge a protection visa at the end of the studies. This was despite the applicant claiming that he had come to Australia and did not plan to return to Iran. It is not persuasive that the applicant would come to Australia on a temporary visa that required the applicant (save for other successful visa applications which is in no way guaranteed) to depart Australia at the conclusion of the visa. The applicant’s own conduct in lodging the protection visa application some two years before the last student visa expired demonstrates that the end date of the student visa was not the reason for the delay, despite what he said to the Tribunal. The Tribunal is satisfied that the delay in applying for protection is indicative of the applicant not having a genuine fear of harm in Iran.
The Tribunal also struggles to accept that if the applicant had any adverse profile in Iran, he would voluntarily return to that country as detailed in his protection visa application form. The death of a grandfather, or visa requirements for [Country 1], would not, in the Tribunal’s view, lead the applicant to take a risk to return to a country where he had apparently previously been harmed, and was of adverse interest to the authorities in Iran. The Tribunal is satisfied that the applicant’s return travels to Iran are indicative that he was able to do so because he was of no adverse interest to authorities in Iran, despite what he claimed. The Tribunal also finds it odd that the applicant would not explore options to remain in [Country 1] instead of returning to Iran. The Tribunal’s assessment is that the applicant’s evidence that [Country 1] was a Muslim country, and he had no desire to remain there because of that was fabricated to explain the reason why the applicant voluntarily returned to Iran, despite it appearing to be a worse country for him. The Tribunal also finds the applicant’s explanation about the oppressive nature of [Country 1] as a Muslim country to be at odds with his claim that he was able to obtain an atheist tattoo in that country, as well as advocate his beliefs there. The Tribunal finds that this inconsistency is due to the contrived nature of the applicant’s evidence about his situation in [Country 1].
The Tribunal accepts that there is evidence from fellow employees that the applicant has described himself as an atheist. The Tribunal gives that corroboration no weight due to the totality of the Tribunal’s concerns. The Tribunal is satisfied that while the applicant may have said that to fellow employees, it was done only to lend credibility to his claims, not because it is a genuinely held belief that results in the applicant genuinely fearing harm in Iran because of that belief.
There is no doubt that the applicant has an atheist [tattoo]. It is odd that such a detail was not included in his written statement of September 2017 for it to either demonstrate his commitment to atheism, or to raise the risk that the applicant would face in Iran as a person who has an atheist tattoo on their body. Given that there is no independent evidence of when the applicant obtained this tattoo, the Tribunal is not satisfied that the tattoo was obtained in [Country 1] as the applicant claimed. The Tribunal suspects that the tattoo was obtained sometime in Australia, and probably after September 2017 because it had not been detailed in the applicant’s written statement. The Tribunal is not satisfied due to the totality of the evidence, that the tattoo is a manifestation of his genuine belief. The Tribunal is satisfied that the tattoo was obtained to lend credibility to his claims, and for no other reason.
The Tribunal accepts that the applicant has been, at various times, a member of [an atheist group] in Australia. Membership of a particular group may be a manifestation of a genuine belief in, and commitment to, a particular cause or belief. However, membership of a particular group may only have been obtained to lend credibility to claims, not because of a genuine belief in the group’s purpose. The corroborative evidence concerning the applicant’s membership of the [atheist group] is intermittent, with the applicant not producing any recent correspondence from that organisation concerning the duration of his membership since his arrival in Australia. Further, the applicant’s oral evidence is that he is no longer a member of the [atheist group] as of 2021.
While there may be reasons for membership lapsing, or no longer continuing, such as financial pressure or disillusionment with the organisation (and the lack of membership not meaning that the beliefs espoused by the organisation have been rejected by the former member), in the present case the Tribunal is not satisfied that this is what has occurred. Rather, due to the totality of the evidence, the Tribunal is satisfied that the lack of corroborative evidence to demonstrate that the applicant was a member of that organisation from 2012 to date is indicative of the applicant not being a genuine atheist, and that he has not maintained consistent and ongoing membership of the [atheist group] because he only joined that organisation to lend credibility to his protection claims.
The Tribunal is not satisfied that the applicant would be arrested or the subject of any adverse interest in Iran from his wife’s family. While the Tribunal acknowledges the statutory declaration from the applicant’s father in 2015 asserts that the applicant’s wife’s family and relatives were aware of her atheism (and by extension, the applicant’s atheism), the Tribunal gives that document no weight. It is not an independent source of corroboration and in the context of the Tribunal’s assessment that the applicant’s claimed experiences of past harm in Iran were fabricated in order to achieve a protection visa, the Tribunal is not satisfied that the contents of the statutory declaration are true. The Tribunal is comfortable making that assessment when it considers the totality of the evidence, such as the delay in applying for the protection visa and the failure of the applicant to detail his protection claims in his visa application form.
What the Tribunal can positively be satisfied about concerning this applicant is that he has an atheist tattoo, been a past member of [an atheist group] in Australia, including attending meetings, and posted atheist content on his [social media] page for the period of time summarised by the delegate. The Tribunal is satisfied that the applicant has only participated in this activity in Australia in order to be granted a protection visa.
Concerning his return to Iran as a person who has an atheist tattoo, the Tribunal observes that the tattoo is not visible when the applicant is clothed. As the Tribunal is not satisfied that the applicant got the tattoo as a manifestation of his belief in atheism, it is reasonable to expect that the applicant would continue to cover the tattoo in his clothing when he is in Iran. The Tribunal that it would be in the most remote chance that the applicant would come to the attention of the authorities in Iran because of his tattoo.
Concerning the applicant’s posts about atheism on [social media], which the Tribunal assesses as occurring sporadically after the applicant’s arrival in Australia, the Tribunal is not satisfied that the posts are know to the authorities in Iran. As found by the Tribunal, the Tribunal is not satisfied that the applicant was a person of interest to the Iranian authorities, as is not satisfied that there is any truth to the content of the applicant’s father’s statutory declaration. As made clear by the DFAT country information report, DFAT assesses those Iranian authorities pay little attention to failed asylum seeks on their return to Iran, with a well-placed source not being away or any voluntary returnees being prosecuted for criticising the Islamic Republic on their return to Iran. That same report details that as far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad, and that unless a returnee to Iran was subject of adverse official attention prior to departing Iran, returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.
Whatever the applicant’s religious practice was (if any) in Iran before he departed that country is the likely practice, he will resume upon his return to Iran. The Tribunal is not satisfied that the applicant has previously been harmed in Iran for this practice (or non-practice), or for any other reason. As the applicant has only engaged in conduct associated with his claimed atheism in Australia in order to be granted a protection visa in Australia, the Tribunal is not satisfied that the applicant would engage in posting atheism material on [social media] in Iran, be a member of any group connected to atheism in Iran, or attend any meetings associated with atheism in Iran.
The Tribunal is satisfied that the applicant will return to Iran as a person with no adverse profile to the Iranian authorities. As found by the Tribunal, the Tribunal does not accept that the applicant is on any sort of ‘list’ and is not satisfied that there is any truth to the claim that his wife’s family are aware of the claimed atheism or wish to do him harm. The Tribunal is not satisfied that as a result of the applicant’s conduct in Australia, there is a real risk of serious harm to the applicant in Iran due to his race, religion, nationality, membership of a particular social group, or political opinion. Likewise, the Tribunal is not satisfied that as a result of his conduct in Australia, 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 defined in the Act.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Iran due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, satisfied that the applicant is 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 he will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) if the Act.
Member of the same family unit
The applicant’s evidence is that he is no longer with his wife and that they are now divorced. He is therefore no longer a member of the same family unit per 1.12 of the Regulations.
Therefore, the applicant is not a member as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in 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 3219

29 June 2023

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