1818811 (Refugee)

1818811 (Refugee) [2022] AATA 2817 (28 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1818811
COUNTRY OF REFERENCE:                   Iran
MEMBER:Tamara Hamilton-Noy
DATE:28 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2022 at 8:59am
CATCHWORDS
REFUGEE – protection visa – Iran – ethnicity and religion – stateless Faili Kurd and Sunni Muslim – leaked confidential military information to Kurdish political party – detained and beaten – extended family members’ political activities in Iran and brother-in-law’s in Australia – applicant’s participation in demonstrations and social media activity – mental health and treatment – credibility – inconsistent claims and evidence – citizenship, passport and departure – initial claim of statelessness made on advice of people smugglers – sister’s returns despite brother-in-law’s claimed profile – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 46A(2), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Claims and Evidence
Evidence before the Department
The applicant arrived in Australia by boat codenamed [Name] [in] April 2010 (Boat ID [Number]).[1]
[1] All migration history details taken from Protection Visa Decision Record dated 1 June 2018, a copy of which was provided by the applicant to the Tribunal.
On 5 May 2010 the applicant undertook an entry interview with the Department. The Tribunal had access to a summary of the interview, contained in a Stateless Status Assessment.[2]
[2] Department file folio 128.
On 29 June 2010 the applicant undertook a Refugee Status Assessment interview. The Tribunal has listened to a recording of this interview and has referred to relevant parts further below.
On 22 November 2010 the applicant attended an Independent Merits Review interview. The Tribunal has listened to a recording of this interview and has referred to relevant parts further below.
On 6 April 2011 the applicant was found by the Independent Merits Reviewer to not be owed protection. The reviewer found that there were no individual factors that distinguished the applicant from the general Faili Kurd population; that the evidence he had given about negative Basij attention had been inconsistent; that there was no credible evidence he would be persecuted for a Convention reason as a returnee or because he left the country illegally or that he would be suspected of being a Western spy. The reviewer accepted that Faili Kurds experience discrimination and hardship in Iran, but found that the applicant’s circumstances do not amount to persecution and there is not a real chance he faces harm for a Convention related reason.
The applicant lodged an appeal with the then-Federal Magistrates Court [in] March 2012 and [in] July 2012 the matter was remitted by consent.
On 20 September 2012 the applicant attended a second Independent Merits Review interview. The Tribunal did not have access to the recording of this interview and has relied on a summary of the interview set out in the reviewer’s decision, relevant parts of which are referred to further below.
On 5 November 2012 the applicant was found by the Independent Merits Reviewer to not be owed protection. The reviewer accepted the applicant is a Faili Kurd but did not accept his evidence that he was an undocumented Faili Kurd. The reviewer did not accept the applicant or his family had been unable to access public services and benefits in Iran, or that there was any reason for the applicant to have needed a false passport to leave Iran. The reviewer found that the applicant has identity documents and used his own legal Iranian passport to depart Iran. The reviewer did not accept the applicant faces persecution in Iran for reasons of being an actual or imputed non-citizen, stateless, undocumented, a displaced Iraqi/Kurd refugee or a child born to displaced or stateless parents from Iraq. The reviewer did not accept the applicant suffered past serious harm in Iran for reasons of his ethnicity and did not accept he suffered harassment and ill-treatment at the hands of the Basij for reasons of his ethnicity. The reviewer did not accept the applicant, as a Faili Kurd, would be denied basic rights, including the capacity to subsist, or that he would be harassed because he would be imputed to be non-Iranian or Iraqi. The reviewer found that, as the applicant claimed to have no interest in politics, and as a Shia Muslim, the applicant would not be imputed with an anti-regime political opinion and he would not face persecution for reasons of his ethnicity, nationality or actual or imputed political opinion. The reviewer found that the applicant would need to obtain a replacement travel document to return to Iran but found that he would not face harm because he had departed legally on his own passport and the fact that he used a people smuggler would not cause him difficulties upon return. The reviewer found that, while the applicant has medical issues, his medical condition would not cause him to be vulnerable to persecution in Iran. The reviewer found the applicant is not owed complementary protection as he would be able to travel to his home area, reside in his local community and work and live there and would not face a real risk of significant harm if removed from Australia to Iran.
On 16 April 2013 the applicant attended a statelessness interview. Based on information put to the applicant during the interview, and information provided by the applicant at the interview, the assessors found the applicant was not stateless but is an Iranian national.
On 13 May 2015 the applicant made a Ministerial Intervention request which was unsuccessful.
On 14 April 2016 the Minister lifted the s.46A(2) bar and the applicant was invited to lodge a protection visa application.
The applicant applied for a Safe Haven Enterprise Visa on 22 December 2016. In the application, the applicant stated that he was born in Urmia, West Azerbaijan, Iran and that he is an Iranian citizen. He stated that both of his parents are Iranian citizens. He stated that he speaks Kurdish and Turkish and speaks, reads and writes Farsi. He stated he is a Sunni Muslim and is of Kurdish ethnicity. He stated he departed Iran through Tehran airport, illegally using a fake passport, that a smuggler had confiscated the passport in [Country 1] and that he had held a previous Iranian passport in his own name which had expired and that the document was now lost. He stated that his father is deceased, his mother is residing in Iran, he has [brothers] and one sister in Iran, [brothers] in [Country 2] and [sisters] and one brother in Australia. The applicant stated he lived at one address in Urmia from the time of birth until 2011 when he left Iran.
In support of the Safe Haven Enterprise Visa application, the applicant provided a statement setting out the following:[3]
[3] Subheadings and paragraph numbering deleted.
The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the Australian Department of Immigration and Border Protection.
Shortly after my arrival in Australia, I was interviewed on my protection claims by Department of Immigration and Border Protection.
I would now like to disclose that I did not disclose my actual identity and protection claims during that assessment.
While in [Country 1] I was advised by a people smuggler to make specific refugee claims once I arrived in Australia. This smuggler, who happened to be Kurdish, overheard me speaking Kurdish with Faili Kurds who were also travelling to Australia. The smuggler approached me and asked about my plans in Australia, to which I explained my circumstances, including my claims. He then indicated that making political claims in Australia be futile, because the Australian government was not accepting on these grounds. He further mentioned many Iranian Persians had been accepted in Australia by falsely claiming to be Kurdish Faili. The smuggler underlined I should try and blend in with other Kurds and claim to be a stateless Kurdish Faili or else I would risk deportation.
The smuggler’s advice caused me great stress and anxiety because I thought I would be deported back to Iran. I did not have any other Kurds from my community to speak with and so when I sat the entry interview I was fearful and misinformed. This led to me making false claims at this interview.
After the entry interview I reflected on my claims and felt guilty and remorseful. However, I was fearful that altering my statement would have consequences and did not revise my claims. I had made a declaration in which it was stipulated that making false claims could result in ten years’ imprisonment.
I did not trust my lawyer during my protection claims because I thought the entire process was a charade based on advice I received from other detainees that our lawyers were not independent of the Department of Immigration. Furthermore, the lawyer I met with was senior and his manner was serious which did not set my mind at ease. The environment I was, in Immigration detention on Christmas Island, contributed to my stress and anxiety and inhibited my thinking skills.
Accordingly, I make this statement in good faith and in order to disclose the truth about my personal circumstances. In doing this, many discrepancies will transpire between my initial claims and this application.
I am a citizen of Iran. I do not have a right to citizenship or a right to reside in any other country.
I am an ethnic Kurd and Sunni Muslim.
I was born in Urmia, West Azerbaijan, Iran to parents who were also citizens of Iran. In our home area, there was a mix of two ethnicities, Kurds and Azeri. In our family home we spoke Kurdish and as a result I am a fluent Kurdish speaker. My parents were born in an area which is entirely populated by Kurds known as [Village].
I have provided copies of both my Citizenship and National ID Cards.
I fear returning to Iran.
In the years 2004 and 2005 I undertook compulsory military service in Iran. During my final placement, I was placed in an admin role at [Workplace]. I was placed in this position for two main reasons, my handwriting skills and also because the Sepah (Army of the Guardians of the Islamic Revolution) member who interviewed me assumed I was Turkish because I spoke with him in Turkish fluently. This was during a skills assessment conducted in the Azeri majority city of [City].
In the [Workplace] exists extremely sensitive and confidential information held by Sepah for national security. Normally a Kurd would not be placed in an area where such sensitive information was readily accessible as we are considered a problematic minority.
I recall that on one occasion I almost lost my job for not following strict rules and protocols at this workplace. I was instructed by my supervisor to deliver a folder of information containing the names of local Basij members to another section within our branch, once I delivered the document the recipient looked at me in surprise. He informed me to return to my supervisor and inform him that next time I was given this responsibility both my supervisor and I would be in serious trouble.
During my work I discovered more and more extremely confidential and sensitive information. This included the personal details of the government’s Kurdish informants, persons we knew as Jash. I made copies of this information.
I leaked this information to a trusted childhood friend who was affiliated with [a Kurdish political party]. I mentioned to him to only pass this information on once I finished military service to avoid becoming exposed.
Towards the end of my placement, I was responsible for training my replacement, a young Azeri named [Mr A]. I trained [Mr A] for approximately one month before my military service came to an end.
In 2006 I met [Mr A]’s brother [Mr B] in Urmia during a local [Sport] match. [Mr B] informed me that his brother had been taken into custody by the Basij, and that he was suspected of some serious crimes but did not let on about this any further.
I was concerned because I felt this was connected to the leak to the [Kurdish Political party]. I was also fearful because [Mr A] had no affiliations with dissidents or separatists. I worried the Basij were policing persons working in this area and it would transpire he had no motivation for leaking information regarding the Jash, as he was a Turk. Further, any in-depth investigation into the roster of workers at the [Workplace] would show that I was Kurdish which would have ramifications for me.
I lived in fear after hearing about [Mr A] and regretted leaking the information. During this period (between 2007 and 2010) there were many arrests in our area of Kurdish dissidents and separatists, many were executed. I was extremely fearful that I would be apprehended by the Sepah or Basij and meet the same fate. In fact, I unsuccessfully attempted to flee Iran before 2010.
As a Sunni Muslim I come from a vulnerable minority in Iran who are subject to persecution. The government is insecure about the nations religious minorities for political reasons and the nations Sunni Muslims are subject arbitrary detainment on obscure charges, used as a pretext to suppress us. Furthermore, the nation’s Sunnis come from ethnic minorities, and this exacerbates our situation.
During my time in Iran I felt that my rights were being encroached on due to my Kurdish ethnicity. This inspired me to learn about the plight of our people and I now consider myself a Kurdish activist. During the past few years I have undertaken social media usage in support of this cause, which is also adverse towards the regime in Iran. In particular, I have been using my personal [Social media] page in order to express and publicise my beliefs. I fear that Iranian authorities would have intercepted this information as they have a cyber-crime unit, which will be used against me if I am forcibly returned.
I also fear harm because my brother-in law [Mr C] is a well-known Kurdish activist currently living in Australia. [Mr C] has written public articles regarding the plight of Kurdish Iranians, giving him a high profile with Iranian authorities. I fear that my relationship with him would also come to their attention and this will have significant ramifications for me.
The government of Iran has a history of human rights abuse. The Iranian government has executed persons from my ethnicity for simply suspecting them of dissidence. It does not afford members of ethnic minorities a fair trial. This includes members of my extended family.
I believe the cumulative claims I have raised suggest there is little doubt I will either be forced into working as an informant or be persecuted by Iranian state authorities.
I fear harm from state authorities for reasons of leaking sensitive information the [Kurdish Political party]. I also fear harm because of my minority status, as a Sunni Muslim Kurd. This will all be used against me if I were to return and are reasons why the government will persecute, rather than protect me.
I fear harm from state authorities, who have a sophisticated intelligence network across the nation which they can locate me anywhere in Iran.
The applicant attended an interview with the Department on 23 April 2018. The Tribunal has listened to a recording of the interview, relevant parts of which are discussed further below.
On 1 June 2018, a delegate of the Department found that the applicant was not owed protection. The delegate accepted the applicant is a Sunni Muslim of Kurdish ethnicity from Urmia, West Azerbaijan and found he is not a stateless Faili Kurd. The delegate accepted the applicant is the brother-in-law of [Mr C], that he has shared pro-Kurdish social media content online, that he departed Iran using his own genuine passport, that he will be a failed asylum seeker returning from the West if he returns to Iran and that he has [brothers] in [Country 2]. The delegate did not accept the applicant facilitated his illegal departure through Imam Khomeini Airport with the help of a people smuggler, that he was summonsed by the Iranian authorities, that he had a warrant issued for his arrest by the authorities, that he was a person of interest to the authorities at the time of departure from Iran, that he leaked secret Iranian military documents to persons connected with the [Political party], that he has been involved in Kurdish rights protests in Australia, that his [brothers] in [Country 2] hold a profile of adverse interest to the Iranian authorities or that two of his relatives are or have been political prisoners in Iran.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
The applicant lodged an application with this Tribunal on 28 June 2018.
Evidence before the Tribunal
The conduct of this matter before the Tribunal has been significantly impacted by the COVID-19 pandemic and for other reasons as set out below.
On 5 February 2021, the Tribunal wrote to the applicant stating that it had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing to give evidence and present arguments on 23 February 2021.
On 22 February 2021, the applicant provided to the Tribunal a written statement dated 18 February 2021, the relevant parts of which are discussed further below.
On 23 February 2021, the applicant provided to the Tribunal a psychology report, a written statement dated 22 February 2021, documents relating to his brothers’ residency in [Country 2], documents (untranslated) that he states are summonses and documents (also untranslated) which he states are ‘sample sensitive documents’.
The applicant attended the Tribunal’s premises on 23 February 2021. Prior to the hearing commencing, the applicant indicated that he would be unable to proceed with the Kurdish interpreter who had been arranged for the hearing. The hearing was adjourned to a further date so that a Persian interpreter could be arranged to assist with the hearing.
On 23 March 2021, the applicant was invited to a resumed hearing on 27 April 2021.
On 27 April 2021, the applicant attended the Tribunal’s Melbourne Registry to speak to the Tribunal and his representative participated by MS Teams video. The Tribunal was assisted at the hearing by a Persian interpreter.
On 3 May 2021, the applicant was invited to a resumed hearing to be held on 31 May 2021.
On 27 May 2021, the Tribunal wrote to the applicant, noting that given Melbourne had entered a further lockdown, the hearing scheduled for 31 May 2021 would not be able to proceed in person.
On 28 May 2021, the applicant’s representative wrote to the Tribunal stating that the applicant was seeking that the resumed hearing be held in person given the documents and other evidence he was seeking to present to the Tribunal. On the same date, the Tribunal wrote to the applicant stating that the hearing scheduled for 31 May 2021 would be postponed.

On 21 June 2021, the Tribunal wrote to the applicant inviting him to a resumed hearing on 21 July 2021.
On 19 July 2021, the Tribunal wrote to the applicant stating that the hearing scheduled for 21 July 2021 would not be able to proceed given the extension of the lockdown in Melbourne.
On 13 August 2021, the Tribunal wrote to the applicant inviting him to a resumed hearing on 30 August 2021.
On 16 August 2021, following an announcement of an extension to the Melbourne lockdown, the Tribunal wrote again to the applicant stating that the hearing scheduled for 30 August 2021 would not be able to proceed.
On 8 October 2021, the Tribunal wrote to the applicant stating that, given ongoing restrictions in Melbourne, the Tribunal would be closed for all in-person hearings for the foreseeable future and, given its obligation to conduct the review in an informal and quick manner, the resumed hearing would take place via video. The applicant was invited to a resumed hearing on 3 November 2021. The Tribunal considered it appropriate to conduct a hearing by video given the length of the restrictions in Melbourne and the Tribunal’s obligations to provide a mechanism of review that is informal and quick. The applicant’s representative did not object to the resumed hearing being held by video.
The resumed hearing was held on 3 November 2021. The applicant spoke to the Tribunal by MS Teams video and his representative also participated by video. The Tribunal was assisted by a Persian interpreter. The Tribunal took evidence from the applicant’s brother-in-law [Mr C], by telephone, during the hearing.
On 15 November 2021, the Tribunal wrote to the applicant inviting him to a resumed hearing to be held on 30 November 2021 by MS Teams video.
On 29 November 2021, the applicant provided to the Tribunal copies and translations of a summons and court order, a link to a video about a Kurdish prisoner in Iran and a link to an article about the prisoner.
The resumed hearing was held by video on 30 November 2021, on which date the Tribunal spoke to the applicant with the assistance of a Persian interpreter. The applicant’s representative was present at the hearing. The Tribunal took further evidence from [Mr C] by phone during the resumed hearing.
On 15 December 2021, the applicant’s representative provided to the Tribunal written submissions, details about the applicant’s [Social media] page and a further statement prepared by the applicant (undated).
On 2 February 2022, the Tribunal wrote to the applicant under s.424A, inviting him to comment on a number of matters, discussed further below.
On 9 February 2022, the applicant’s representative sought additional time to respond to the Tribunal’s correspondence.
On 2 March 2022 the applicant’s representative provided a response to the s.424A letter and requested ‘further information or clarification’.
On 10 March 2022, the Tribunal wrote to the applicant’s representative granting an extension of time to reply to the s.424A letter and stating that the Tribunal would not be sending out any further particulars and that the applicant was invited to provide any further submissions he sought to rely on by 25 March 2022.
On 28 March 2022, the applicant’s representative provided further submissions to the Tribunal in response to the s.424A letter.
Consideration of claims and evidence
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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.
Findings about the applicant’s crediblity
The Tribunal did not find the applicant to be a credible witness regarding his background, his claimed reasons for leaving Iran or his claimed reasons for fearing return to Iran. In so finding, the Tribunal has had regard to the applicant’s early claims to be a stateless Faili Kurd, the inconsistencies in the applicant’s evidence about his background and about his claims, as well as other reasons detailed further below.
First, the applicant has given varying evidence about his family’s background.
At a Refugee Status Assessment interview on 29 June 2010, the applicant told the interviewer that his parents were born in Baghdad, Iraq, that they were not Iraqi citizens and that they had not applied for Iranian citizenship and had not made inquiries about citizenship in Iran because Faili Kurds are not allowed to apply for citizenship. The applicant said that his parents did not go to a camp when they first arrived in Iran and, because they had not been in a camp, they didn’t have any identification in Iran.
At a second Refugee Status Assessment interview on 20 September 2012, the applicant told the reviewer that his father was born in Iraq but that he didn’t know where and that his mother had been born in Iraq but he didn’t know which city she was born in. The applicant said that his father never had documents and was stateless and so the applicant is too. The applicant said that his father told him that his parents walked into Iran from Iraq and so did not go to a camp.
At a Stateless Assessment interview on 16 April 2013, the applicant told the interviewers that his parents speak only Faili Kurdish and, because they are illiterate, they couldn’t learn Farsi Persian. The applicant told the interviewers that both of his parents were born in Iraq in a village around Baghdad, that his father had lived in Iraq for 30 years before moving to Iran and that his mother didn’t talk too much about her difficulties in Iraq because people don’t want to repeat bad memories. The applicant told the interviewers that his father passed away in around 2007 and that he had worked in agriculture.
In his Safe Haven Enterprise Visa application, dated 15 December 2016, the applicant stated that his father and mother are both Iranian citizens. At the Tribunal hearing, the applicant gave evidence that both of his parents were born in Urmia and are Iranian citizens. The applicant gave evidence that his father was [an Occupation] and that he [worked] at a [workplace] in [Village].
The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in the applicant’s claims about his family’s background and about his father’s occupation may lead the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept that the applicant is of Kurdish ethnicity and may cause the Tribunal to not accept the applicant’s claimed reasons for having left Iran or that he fears returning to Iran as a Kurdish failed asylum seeker, as an individual opposed to the Iranian regime or as a Sunni Kurd in Iran. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
The applicant was invited to comment on the above information. The applicant’s representative submitted that the applicant had provided correct information about his family’s background in his application in December 2016, that is, that his parents are Iranian citizens, born in Urmia and are Kurdish. The representative submitted that given the applicant had disclosed his parents were not Faili Kurd, the claims he had made about his parents being Faili Kurds in Iraq did not need to be considered. The representative submitted that there was no longer varying evidence about the applicant’s parents’ claimed ethnicity. The applicant’s evidence given about his parents’ citizenship, following repeated and extensive information provided to the contrary, does not alleviate the concerns the Tribunal has about the applicant’s general credibility or its concerns about the credibility of the applicant’s claims.
Second, the applicant has given varying evidence about his citizenship.
At a Refugee Status Assessment interview on 29 June 2010, the applicant told the interviewer that he had not applied for Iranian citizenship. He stated that he is stateless and has no identification, is not allowed to study, is not allowed to enter a hospital and that he lived in Iran for [number] years as a Faili Kurd and had no education and had nothing.
At a second Refugee Status Assessment interview on 20 September 2012, the applicant told the reviewer that his father was stateless and so he is too.
At a Stateless Assessment interview on 16 April 2013, the applicant said he is an Iranian citizen and has a birth certificate, national identification card, passport and military service card.
In his Safe Haven Enterprise Visa application, dated 15 December 2016, the applicant stated that his citizenship at birth was Iranian and that he is an Iranian citizen.
At a Safe Haven Enterprise Visa interview on 23 April 2018, the applicant told the interviewer that he is an Iranian citizen and is Kurdish.
The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in the applicant’s claims about his citizenship may lead the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept that he is of Kurdish ethnicity, and may cause the Tribunal to not accept the applicant’s claimed reasons for having left Iran or that he fears returning to Iran as a Kurdish failed asylum seeker, as an individual opposed to the Iranian regime or as a Sunni Kurd in Iran. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
The applicant was invited to comment on the above information. The applicant’s representative submitted that the applicant had provided correct information in his application in December 2016 that he is an Iranian citizen. The representative submitted there was no longer any need to consider any claim or discrepancies in regards to the applicant being stateless and that, from the time the applicant ‘disclosed’ he is an Iranian citizen, there was no longer varying evidence about his claimed citizenship.
The representative submitted that the Tribunal had not provided sufficient information as to why the applicant’s claims that he is an Iranian citizen might not be accepted by the Tribunal. The Tribunal notes that it was not put to the applicant in the s.424A letter that the Tribunal may not find the applicant to be an Iranian citizen. The applicant’s explanation that there was no longer any need to consider the discrepancies in the applicant’s evidence does not alleviate the concerns the Tribunal has about the veracity of the applicant’s evidence or his claims.
Third, the applicant has given varying evidence about his family composition.
At a Stateless Assessment interview on 16 April 2013, the applicant told the interviewers that he has a brother [Mr D] and a sister [Ms E] and that he does not have any other brothers or sisters. The applicant said that [Mr D] is not married and works in [various roles] and that his sister [Ms E] is not married and is living with his mother in Iran. The applicant said that he does not have any nieces or nephews.
Later in the Stateless Assessment interview, when the interviewers asked the applicant who [Ms F] is, the applicant then stated that she is his niece and that her parents, [Mr C] and his sister [Ms G], are living in Australia. The applicant then said that he has a sister [Ms H] and a brother [Mr I] living in Australia and that there were no other family members living in Australia.
Also at the Stateless Assessment interview, later in the interview, the applicant told the interviewers that he has [brothers] and [sisters] and that [Number] brothers and [number] sisters are in Australia.
The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in his claims about his family composition may lead the Tribunal to doubt the truthfulness of his claims, and may cause the Tribunal to not accept the applicant’s claimed reasons for having left Iran or that he fears returning to Iran as a Kurdish failed asylum seeker, as an individual opposed to the Iranian regime or as a Sunni Kurd in Iran. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
The applicant was invited to comment on the above information. The representative submitted that the applicant had provided correct information in his application in December 2016, that he had put the Department ‘on notice’ since December 2016 that the information he had previously provided was incorrect and that he claims that the information he provided in his December 2016 application is correct. The Tribunal is prepared to accept that the evidence given by the applicant in his December 2016 application was the correct information about his family members. However, the failure of the applicant to provide this information at an earlier stage of his claims leads the Tribunal to have significant doubts about his general credibility and about the credibility of his claims.
Fourth, the applicant has given inconsistent evidence about coming to the attention of the Basij as a Faili Kurd.
At a Refugee Status Assessment interview on 29 June 2010, the applicant told the interviewer that he was stopped by the Basij on the way to work and was asked questions and, because he didn’t hold identification, he was arrested and detained for two days. The applicant said to the interviewer that on another occasion he was in the car with his sister and was stopped by the Basij and, because he and his sister are Faili Kurds, he didn’t have cards; the Basij did not believe she was the applicant’s sister and he was attacked and abused physically after being taken to the Basij station. The applicant said that he was held for six to seven hours and was released after he paid a bribe.
At an Independent Merits Review interview on 22 November 2010, the applicant told the reviewer that he was stopped a few times, detained and beaten because he is a Faili Kurd and that he couldn’t complain to anyone because he was not considered Iranian. The applicant told the reviewer that he and his sister were stopped and, because they didn’t have any documents to prove that, they were kept for six to seven hours and were then released after paying a bribe.
At a second Independent Merits Review interview on 20 September 2012, the applicant told the reviewer that he had come to the adverse attention of the Basij two times and that on the second time he was detained for two days and was released after the village headman came to the station to vouch for him.
At the Tribunal hearing, the applicant gave evidence that he is an Iranian citizen and is not a stateless Faili Kurd.
The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in the applicant’s claims about why he came to the attention of the Basij may lead the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept that the applicant received any adverse attention from the Basij while he was living in Iran, that he was detained or questioned or that he was released either after paying a bribe or after a person from his village came to vouch for him. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant’s claimed reasons for having left Iran or that he fears returning to Iran as a Kurdish failed asylum seeker, as an individual opposed to the Iranian regime or as a Sunni Kurd in Iran. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
The applicant was invited to comment on the above information. The applicant’s representative submitted that ‘all of the information about [the applicant] being Faili Kurd born in Iraq and stateless is not correct and no longer part of his claims’. The representative did not specify whether any negative attention from the Basij remained part of the applicant’s claims, but reiterated that there was ‘no need to consider any claim in regards to being stateless’.

The detailed information the applicant gave to the Department about his contact with the Basij, which he is no longer relying on, adds to the doubts the Tribunal has about the credibility of his claims.
Fifth, the applicant has given varying evidence about the passport he claims to have left Iran on and who was involved in his departure from Iran.
At a Refugee Status Assessment interview on 29 June 2010, the applicant told the interviewer that he had left Iran on an Iranian passport, that the details in the passport were not his but that the photograph was his. He said that he knew he would get through security at the airport because the smuggler made the passport for him and told his uncle there would be no problems.
At an Independent Merits Review interview on 22 November 2020, the applicant told the interviewer that his uncle on his father’s side organised his passport and airline ticket. He told the reviewer that his uncle, who lives in Urmia, took him to the airport in Tehran and that he had gone by public bus from Urmia to Tehran, and then had gone in a taxi in Tehran to the airport.
At a second Independent Merits Review interview on 20 September 2012, the applicant told the reviewer that he had travelled out of Iran on a passport with his photo on it but in the name of ‘[Alias]’. He said that the smuggler had told him that he could make a legal passport but it would not be in his name, only with his photo.
At a Stateless Assessment interview on 16 April 2013, the applicant told the interviewers that he travelled to Australia on his own passport and that he could not remember when it was issued.
In his Safe Haven Enterprise Visa application, dated 15 December 2016, the applicant stated that he had left the country illegally and stated, ‘I left the country using a fake passport’. He stated in the application that he had held another passport in the name [the applicant], issued in Iran, that expired around 2009 and is now lost.
At a Safe Haven Enterprise Visa interview on 23 April 2018, the applicant told the interviewer that his passport was officially issued and was in his name and is the only passport he has been issued and is the document that he left Iran on. The applicant said that his brother organised for him to leave through a smuggler who promised that he would leave the airport without facing any problems. When the interviewer noted that his application had said ‘illegally’ and ‘fake passport’, he said that he had probably made a mistake.
In a Statement provided to the Tribunal, dated 18 February 2021, the applicant said that he left Iran on a ‘genuinely obtained passport but fraudulently obtained from the authorities’, that the passport was genuinely issued but was a fake passport in that it used the name of [Alias], and that the photo on the passport belonged to him. The applicant said that his brother obtained this passport for him through his connections.
At the Tribunal hearing, the applicant gave evidence to the Tribunal that he had travelled out of Iran on a passport in the name of [Alias] with his photo on it. The applicant gave evidence to the Tribunal that his brother had organised his documents for travel and that his brother [Mr J] had gone to the airport with him.
The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in the applicant’s claims about what passport he left Iran on, who organised his departure documents, how many passports he has owned and who travelled to the airport with him when he left Iran may lead the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept the applicant was subject to any attention from Iranian authorities when he left Iran, after he left Iran or that he would be subject to any attention from the authorities upon return to Iran. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant’s claimed reasons for having left Iran or that he fears returning to Iran as a Kurdish failed asylum seeker, as an individual opposed to the Iranian regime or as a Sunni Kurd in Iran. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
The applicant was invited to comment on the above information. The applicant’s representative submitted the following in their response:
[The applicant] states that the passport used to leave Iran is a fraudulently obtain [sic] passport. It was a genuine Iranian passport, but it has false information in it.
The name in the passport was another name – [Alias] – not his real name. The photo on the passport was his photo
Thus, the passport was a genuine passport with a fraudulent identity. It was not biometric since it was obtained prior to February 2011
[The applicant] states that his brother made all the arrangements for him to leave Iran through a smuggler. The smuggler organised the passport.
The variations in the evidence given by the applicant about the passport he left Iran on leads the Tribunal to have significant doubts that he left on a false passport because he was concerned about the authorities in Iran, or that the applicant’s brother or his uncle were required to obtain a false passport, or a genuine passport with false information, in order for the applicant to leave Iran.
Sixth, the applicant has given varying evidence about his education and employment prior to leaving Iran.
At an Independent Merits Review interview on 22 November 2010, the applicant told the interviewer that he had started working at [age range] years of age as a shepherd, which was seasonal work, and had then started working in [Work sector] at 16 or 17 years of age. The applicant said that he had different employers in [Work sector] because people didn’t dare give ‘people like him’ a job because he was not from Iran. The applicant said that, instead of being paid 15,000 tomans a day, he was paid 7,000 to 10,000 tomans a day. The applicant told the reviewer that this was the true story of his life.
At a second Independent Merits Review interview on 20 September 2012, the applicant told the reviewer that he had not been to school but had been taught by an Imam and that he spoke Kurdish at home but cannot read and write in Kurdish. The applicant told the reviewer that he had started working in the village and was looking after sheep and then at [age range] years of age, he had started going to the city to work.
At a Stateless Assessment interview on 16 April 2013, the applicant told the interviewers that he had started high school and had then undertaken military service, then after military service he had continued his high school education and then [worked].
In his Safe Haven Enterprise Visa application, dated 15 December 2016, the applicant stated that he had worked [during] school holidays from 2000 to 2003, that he was in the military from December 2003 to December 2005 and then had worked as a private contractor undertaking [another line of] work from December 2005 to May 2011 in Urmia.
At the Tribunal hearing, the applicant gave evidence that he completed high school at [age range] years of age, then played [Sport] and worked for a year and then undertook military service. The applicant stated that he then worked in Iraq for several years, before returning to Iran.
The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in the applicant’s claims about what education he undertook in Iran, what age he started working in Iran and whether he completed high school before or after undertaking military service may all lead the Tribunal to not accept the applicant’s claimed reasons for having left Iran or that he fears returning to Iran as a Kurdish failed asylum seeker, as an individual opposed to the Iranian regime or as a Sunni Kurd in Iran. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.

100. The applicant was invited to comment on the above information. The applicant’s representative submitted that all of the information the applicant provided at the time he was claiming to be Faili Kurd is not correct. The inconsistencies in the applicant’s evidence about his education and employment in Iran adds further doubt for the Tribunal about the veracity of his claims.
101. Seventh, the applicant has given inconsistent evidence about the dates he states he was undertaking compulsory military service.
102. Attached to his request for Ministerial Intervention, dated 13 May 2015, the applicant provided a card evidencing his compulsory service, stating that he served for 18 months from [January] 2003 to [July] 2004.
103. In his Safe Haven Enterprise Visa application, dated 15 December 2016, the applicant stated that he undertook compulsory military service from [December] 2003 to [December] 2005.
104. At a Safe Haven Enterprise Visa interview on 23 April 2018, the applicant told the interviewer that he had been in the Army in [City] in 2004 or 2005 and that he had been living in Urmia on [Street] from [year] to 2004 and was then in the Army from 2004 to 2005.
105. The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistencies in the dates he had provided about when he was undertaking compulsory military service may lead the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept that the card relating to his military service is a genuine document and may cause the Tribunal to not accept that the applicant had undertaken compulsory military service in Iran or that, while undertaking any service, he had access to confidential information that he provided to a third party. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept that the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
106. The applicant was invited to comment on the above information. The applicant’s representative submitted that the information contained in the military service card is correct and that the applicant served for 18 months, from [January] 2003 to [July] 2004. The representative stated that the information in the safe haven enterprise visa application dated 15 December 2016 is not correct and that the information in the safe haven enterprise visa interview on 23 April 2018 is not correct. The representative submitted that aside from the varying dates, no other reasons had been given by the Tribunal as to why it may not accept the military card was genuine and that the applicant was concerned that no other analysis of the military card would be sought by the Tribunal and, further, that the Department had accepted the document as genuine.
107. The Tribunal notes that the applicant’s service in the military is central to the claims he has raised in his Safe Haven Enterprise Visa application and before the Tribunal. The varying evidence given by the applicant about the dates he states he served in the military adds further doubt for the Tribunal about the credibility of the applicant’s claims.
108. Eighth, the applicant has given inconsistent evidence about how long he was in Iran for before he left for Australia.
109. At a Safe Haven Enterprise Visa interview on 23 April 2018, the applicant told the interviewer that he had worked for four years in Iraq, from 2007 to the end of 2009, and that he had returned to Iran for three to four days and then left for Australia.
110. At the Tribunal hearing, the applicant gave evidence to the Tribunal that after working in Iraq, he returned to Iran for one to two months, during which time he was not living in Urmia but was living at a relative’s house in [City].
111. The Tribunal wrote to the applicant under s.424A regarding the above inconsistencies in his claims. The Tribunal’s correspondence noted that the information was relevant because the inconsistences in the time the applicant claimed to have returned to Iran, before leaving for Australia, may cause the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept he had left Iran because he was concerned he was of interest to the authorities and may cause the Tribunal to doubt that he undertook compulsory military service during which time he had access to confidential information which he provided to a third party. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant has a well-founded fear of persecution if he returns to Iran now or in the reasonably foreseeable future or that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
112. The applicant was invited to comment on the above information. The applicant’s representative submitted that the applicant lived in Iraq for approximately two years after finishing military service and before coming to Australia, that he could not recall how long he was in Iran for prior to returning from Iraq and leaving Iran but it was a period of weeks rather than days as his brother was organising for a smuggler to help him leave Iran. The variations in the applicant’s evidence as to how long he was able to remain in Iran for, before claiming to flee Iran, adds further doubt for the Tribunal about the credibility of his claims.
113. Ninth, the applicant has given varying and inconsistent evidence about his access to confidential information while undertaking compulsory military service.
114. At a Stateless Assessment interview on 16 April 2013, the applicant told the interviewers that when he was undertaking military service, he was working in a section where he received confidential letters because his Turkish was very good. When asked for details about this, the applicant said he was in [City] and, because his Turkish was good, the official people there were Sepah and not Etelaat. The applicant said that the letters received were mostly about Kurds who lived in that area, and were about different Kurdish tribes and they had cases there and letters that would go to files. The applicant said that, because his Turkish was good, they didn’t doubt he was a Kurd. He said that he could read the letters and he took them and copied them and knew the Kurdish people.
115. In a letter to the Minister for Immigration for ministerial intervention, dated 13 May 2015, the applicant stated that he had copied confidential documents about Kurdish Basiji while in the Iranian Army [division], that he had attempted to provide these to the [Political party] through a third party and that this had been exposed to Iranian authorities. The applicant said that there had been requests for him to present himself to the police and that an arrest warrant had been sent to his home following his departure from Iran.
116. In his written Statement dated 15 December 2016, submitted in support of his Safe Haven Enterprise Visa application, the applicant stated that during his final placement he was placed in an admin role at [Workplace] due to his handwriting and because the person who interviewed him had assumed he was Turkish because he spoke Turkish fluently, which had been during a skills assessment conducted in [City]. The applicant said that in the [Workplace] there was sensitive and confidential information and that during his work he discovered more sensitive and confidential information including the personal details of the government’s Kurdish informants and that he had made copies of this information. The applicant said that he leaked this information to a trusted childhood friend who was affiliated with the [Kurdish Political party]. The applicant said that towards the end of his placement, he was responsible for training [Mr A] and that in 2006 he had met [Mr A]’s brother [Mr B] in Urmia during a [Sport] match. [Mr B] said that his brother had been taken into custody by the Basij and was suspected of serious crimes. The applicant said he was concerned because he felt this was linked to the leak to the [Kurdish Political party].
117. At a Safe Haven Enterprise Visa interview on 23 April 2018, the applicant said he had undertaken training in [Location] which belonged to the Kermanshah district and after three months of training he was then sent to [City] in a place where files were stored. The applicant said he was in [City] for four to five months and then was sent to Urmia for around 1.5 years until he finished his Army service. Later in the Safe Haven Enterprise Visa interview, the applicant said that he was put in a ‘files place’ because he could speak Azeri and Turkish and at the time his handwriting was very good and people there thought he was Azeri. The applicant said that he was there for three to four months and got experience how to write letters and after that he was sent to Urmia. The applicant said that he was put in the same kind of place in Urmia and that when he was in [City] he had seen many documents about people working for the government and about the government assassinating Kurdish freedom fighters. The applicant said that he got copies because they were very important documents and kept copies for himself, then handed these to a friend whose brother was a freedom fighter for the [Political party 1]. The applicant said he had told him not to send them until the applicant had finished his military service and then send them to the office of the party. The applicant said that he thinks that three or four months after he had finished his military service, these were sent to the head of the party.
118. The applicant told the interviewer in the Safe Have Enterprise Visa interview that in 2006 his friend sent the documents to the party and one day he went to play [Sport]. The applicant said that one month before his service finished, he had trained a new solider, [Mr A], to write letters and save files and that five months after his service finished, he went to play [Sport] and saw [Mr A]’s brother [Mr A] who said [Mr A] was facing a problem in the military and had been detained. The applicant said that [Mr A] had been in the military with him. The applicant said he had not kept copies of the documents but had handed them all to the party because he was afraid to keep them. The applicant said the documents were written by Kurdish people who were working for the government against Kurdish freedom fighters. The applicant said that he didn’t know what the DPK did with the documents. When asked by the interviewer whether he was in [City] or Urmia when he had leaked the documents, he said it was in Urmia.
119. At the Safe Haven Enterprise Visa interview on 23 April 2018, the applicant told the interviewer that the person he had given the documents to was [Mr K] and that he didn’t know [Mr K]’s surname. The applicant said that [Mr K] was from his suburb, that he had known [Mr K] a long time from around [age] years of age and that [Mr K] was his friend. The applicant said that [Mr K] was two years older than him and that his house was in another village and his brother was in the [political party].

[13] DFAT Country Information Report Iran, 14 April 2020, at 2.24 – 2.25.
174. The Tribunal discussed the above information with the applicant during the hearing and he responded that he doesn’t know where this information was gathered from and he was healthy when he arrived in Australia. He believes that if he returns with mental health issues, people will stigmatise him and call him ‘dumb’.
175. The Tribunal finds that the applicant has not been taking medication on any of the dates the Tribunal spoke to the applicant at hearing. The Tribunal finds that the applicant would be able to access private psychological counselling in Iran which would limit any deterioration in his mental health condition upon return to Iran and would alleviate any impact on his ability to access employment upon return. The Tribunal finds there is not a real chance the applicant faces serious harm in Iran as an individual who has suffered anxiety and depression in Australia.
176. The Tribunal has considered the cumulative claims of the applicant but is not satisfied he faces a real chance of persecution for any reason.
177. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The applicant’s complementary protection claims
178. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
179. The Tribunal has considered the cumulative claims raised by the applicant relating to his [Social media] activity in Australia, the length of time he has been in Australia, the data breach that occurred by the Department in 2014, the mental health counselling he has undergone in Australia, his ethnicity, religion, his relationship to [Mr C] and his status as a failed asylum seeker.
180. The country information considered by the Tribunal, discussed with the applicant at hearing, indicates that he may face a level of stigma due to his mental health issues, will face questioning by authorities upon return to Iran and that his political comments and representation on his social media in Australia are unlikely to be seen by Iranian authorities upon his return. The Tribunal is not satisfied from this information that the applicant faces a real risk of arbitrary deprivation of his life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if he is removed from Australia to Iran.
181. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
182. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit 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).
DECISION
183. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2817

28 June 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction