1821586 (Refugee)

1821586 (Refugee) [2024] AATA 2653 (21 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Behrooz Ehsani
CASE NUMBER:  1821586
COUNTRY OF REFERENCE:                   Iran
MEMBER:Member Nathan Goetz
DATE:21 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 February 2024 at 11:55am
CATCHWORDS
REFUGEE – protection visa – Iran – affair with a married woman – credibility concerns – religion – conversion to Christianity – genuineness of conversion – particular social group – failed asylum seeker from a western country – Australian citizen child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 35A, 36, 65, 425, 438
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review by registered migration agent 1576790.
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.
On 31 May 2017 the applicant applied for a Safe Haven Enterprise visa which a class of a protection visa per s 35A of the Act. A Safe Haven Enterprise visa is a temporary protection visa designed to ‘provide protection and encourage enterprise through earning while strengthening regional Australia.’
On 6 March 2018 the applicant attended an interview with the delegate concerning the protection visa application. On 29 June 2018 the delegate refused to grant the protection visa on the basis that the applicant failed to meet s 36(2)(a), (aa), (b) or (c) of the Act.
On 25 July 2018 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa.
On 18 July 2022 the Tribunal wrote to the applicant under s 425(1) of the Act to invite him to appear at a Tribunal hearing commencing at 10:30am on 2 August 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review.
On 2 August 2022 the applicant appeared at the Tribunal hearing. The applicant’s representative also attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The Tribunal hearing was conducted at the Sydney registry. At the time of the decision, the Member was located at the Melbourne registry. The Tribunal apologises for the delay in determining the matter.
CONSIDERATION OF MATERIAL AND FINDINGS
The Tribunal considered all the material provided on the delegate file and the Tribunal file, including the oral evidence provided to the delegate at interview and the Tribunal at hearing.
The Tribunal considered the applicant’s protection claims individually and cumulatively.
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 relevant DFAT reports are the Country Information Reports on Iran dated 14 April 2020 and 24 July 2023.
Evidence about the applicant’s migration history
Arrival in Australia
The applicant declared that he arrived in Australia [in] November 2011 as an unauthorised maritime arrival at Christmas Island, one of Australia’s ten territories.
Previous migration history
According to the Department’s records, the applicant’s migration history is detailed as follows.
On 19 April 2012 he applied for an s 195A Ministerial Intervention which was granted on 8 May 2012. On 8 May 2012 he was then granted a Humanitarian Stay (Temporary) (subclass 449) visa and a Bridging Visa E.
On 6 November 2012 the applicant applied again for an s 195A Ministerial Intervention which was granted on 12 November 2012. He was granted a Bridging Visa E on 12 November 2012 which ceased on 12 February 2013.
On 11 February 2013 the applicant applied again for an s 195A Ministerial Intervention which was granted on 14 February 2013. He was granted a Bridging Visa E on 14 February 2013 which ceased on 14 May 2013.
On 9 May 2013 the applicant applied again for an s 195A Ministerial Intervention which was granted on 15 May 2013. He was granted a Bridging Visa E on 15 May 2013 which ceased on 15 August 2013.
On 17 May 2013 the applicant applied again for an s 195A Ministerial Intervention which was granted on 28 August 2013. He was granted a Bridging Visa E on 28 August 2013 which ceased on 28 September 2013. The applicant was then onshore unlawfully from this date until 19 October 2016.
A Protection Obligations Determination commenced on 22 November 2011 which was assessed as ‘no obligations’ on 23 March 2012. As the Tribunal understands it, this resulted in an automatic referral to a reviewer with the Independent Protection Assessment Office (IPAO). The IPAO recommendation on 23 October 2012 was that the applicant was not owed protection. The applicant commenced Judicial Review on 2 October 2013, which the Minister won [in] July 2014. On 1 April 2016 the applicant applied again for an s s46a Ministerial Intervention which was granted on 13 April 2016, lifting the s 46a bar.
On 3 August 2016 the applicant applied again for an s 195A Ministerial Intervention which was granted on 19 October 2016. He was granted a Bridging Visa E on 19 October 2016 which ceased on 19 January 2017.
On 14 October 2016 the applicant commenced a Humanitarian Stay (Temporary) (UJ 449) visa application, which was granted on 19 October 2016. It ceased on 26 October 2016.
On 6 March 2017 the applicant applied again for an s 46a Ministerial Intervention which was granted on 6 March 2017, lifting the s 46a bar.
Current visa application
The applicant commenced a Safe Haven Enterprise Visa application (SHEV) on 31 May 2017. He was granted an associated Bridging Visa E on 9 June 2017 which remains in effect.
The SHEV was refused by the Department on 29 June 2018. The applicant commenced the current review on 25 July 2018.
Evidence about the applicant’s identity, country of reference, and family
The applicant identified in his protection visa application form that he is a male citizen of Iran who was born in [year], meaning that he is now aged [age] years of age. He claimed that he was born in Tehran, Iran and holds Iranian citizenship. He did not claim to be a citizen or a national of any other country or have the right to enter and reside in any other country.
He declared in the protection visa application form that he departed from [the] Airport in Iran [in] November 2021 on an Iranian passport. He did not provide the document number, the date of issue, or date of expiration. He told the Tribunal hearing that he held an Iranian passport because he wished to go on pilgrimage with his mother, but this did not eventuate. He was in transit in [Country 1] and then in [Country 2] from [date] November 2011 to [date] November 2011 as a tourist.
In the protection visa application form, the applicant declared he had a mother and father in Iran. He confirmed at the Tribunal hearing they remain in that country and that they live in Tehran. He also identified that he had [number] brothers and [number] sisters who live in Iran.
He told the Tribunal that immediately prior to departing Iran, he lived in Tehran with his family who all lived together.
In the protection visa application form, the applicant did not identify that he was married or in a de facto relationship. At the Tribunal hearing, the applicant told the Tribunal that he commenced living with [Ms A] in 2017 and that they had a child named [Child B] who was born on [date]. The applicant and [Ms A] separated about 9 months prior to the Tribunal hearing. They were not married. At the time of the Tribunal hearing, he did not possess a birth certificate which demonstrated that he was the father of this child. He told the Tribunal that the child had a birth certificate but that he was not named as the father. It was only later that he realised he was not identified as the father on the certificate. He had made attempts to rectify that situation. The Tribunal explored at the Tribunal hearing whether the applicant was the father of that child, and the Tribunal was told that he was.
Subsequent to the Tribunal hearing, the applicant provided the Tribunal with a New South Wales Birth Certificate that was issued [in] November 2022 that identified the applicant as the father of [Child B]. The applicant also provided the Tribunal with a report dated [in] September 2022 from DNASolutions which identified his probability of parentage to be 99.999997%. The interpretation of the results from the author was that the test results support that the applicant is the biological father of [Child B]. Records demonstrate that [Child B] is an Australian citizen.
Notification regarding the disclosure of certain information under section 438 of the Act
On the delegate’s file there is notification that ‘certain information’ contained in Department reference [number] should not be disclosed to the applicant or the representative. The notification states that s 438(1)(b) of the Act applies to the information covered because it was provided to the Department on a confidential basis.
Where the Tribunal is given a document or information and is notified that this section applies in relation to the Tribunal, the Tribunal may, for the purpose of its powers, have regard to any matter contained in the document or the information; and may if the Tribunal thinks it appropriate to do so, having regard to any advice given about the significance of the document or the information, disclose any matter contained in the document, or the information, to the applicant.
The Tribunal is satisfied that the certificate is valid as it complies with the requirements of s 438 of the Act. The material should not be disclosed to the applicant for the reasons given in the certificate, namely that it was provided confidentially and would impact on the operation of the Department’s lawful methods for preventing, detecting and investigation breaches of the law. However, the applicant was already aware of the contents of the document because it was discussed with the applicant at the delegate interview and in the decision record.
The information related to financial transactions that the applicant had participated in while in Australia to send funds back to Iran. The relevance of that information is detailed in the assessment of claims. The Tribunal discussed the certificate at the Tribunal hearing and the representative wished to make no submissions about the validity of the certificate but accepted that the applicant was aware of the contents being financial transactions.
Evidence about the applicant’s departure from Iran, reasons for departing that country and no longer claiming to fear harm in Iran based on previous experiences of claimed harm in that country.
In the applicant’s written statement dated 3 February 2012, he detailed that in April or May 2011 he met a woman named [Ms C]. They arranged to meet and eventually formed a relationship. They would sleep together. After he returned from being away from work they met up at where [Ms C] lived. [Ms C]’s mother saw the applicant going to her room, but at the time the applicant did not know this. The applicant claimed that he and [Ms C] were discovered by [Ms C]’s mother and brother. The applicant was beaten by [Ms C]’s brother and her mother asked the applicant if he was ashamed because he was having an affair with a married woman. The morality police arrived and the applicant told them that he did not know that [Ms C] was married. [Ms C] told the applicant that she did not tell him that she was married because she loved the applicant and had been forced to marry her husband. The statement detailed that the applicant was taken to a government office that dealt with morality breaches. He was asked to sign a document to say that the police had not done anything wrong to him which he signed because at that stage, the police had not done anything to him. The applicant wrote that after that he was beaten in front of [Ms C]. He would be beaten repeatedly during his time being held by the authorities and was sprayed with tear gas and had to run in his cell to avoid the burning sensation.
During his time being held, [Ms C]’s husband came, and the applicant said that he did not know she was married but the husband did not believe him. The husband threatened to send the applicant to a place where no one would find him.
The applicant wrote that he was able to tell his family where he was because a sympathetic guard advised the applicant’s family where he was. The applicant was taken to a Sharia Court and the applicant’s mother attended the hearing. The court did not believe the applicant’s explanations about the abuse he suffered while being detained by the authorities. The prosecution could not prove that the applicant and [Ms C] had sex, so the applicant avoiding stoning. He spent two a half month in prison because he could not meet the bail requirements, before finally being released.
After the applicant’s release, he returned to court for sentencing. He was sentenced to 99 lashes. [Ms C]’s husband sought a review of the sentenced three times but the sentence was not increased. After four months, the sentence was carried out and the applicant received the 99 lashes. [Ms C] was sentenced to 10 lashes, with 79 lashes deferred.
The applicant wrote that after the sentenced was carried out he thought the matter was finished, by [Ms C] wanted to continue the relationship. However, [Ms C] said that if the applicant did not continue the relationship with her, she would show her husband naked photos of the applicant and [Ms C] together, so he resumed the relationship and saw her two or three times each week at a friend’s house, and they had sex.
The applicant wrote that [Ms C]’s husband accused him of having an affair with [Ms C]. The applicant claimed that he convinced her husband that he was not, but [Ms C] rang him later and said that her husband remained suspicious. The applicant was then able to use a friend to assist him to leave Iran, which he did on his own passport.
At the Tribunal hearing, the Tribunal was told that the applicant was no longer claiming that he feared harm in Iran based on the claims arising from the relationship with [Ms C]. His protection claims were only those raised in the submission provided to the Tribunal, namely persecution based on his religious conversion to Christianity and as a failed asylum seeker returning from a western country. The Tribunal was told that he was no longer persisting with this claim because it was a ‘long time ago’ and his parents had ‘moved out of the area’ so no one knows where they are. The applicant also speculated that [Ms C] may have now been separated from her husband.
The Tribunal asked the applicant whether the claim concerning the relationship was no longer being pursued because of credibility concerns concerning the truth of those claims that the delegate detailed in the decision record. The applicant disputed that this was the case and asserted that the claims were true but that he may have got dates incorrect.
Some of those credibility issues were as follows:
The applicant initially claimed that he had no contact with [Ms C] after he left Iran. He initially repeated this claim to the delegate at interview. The delegate confirmed that the applicant had no contact in any form with [Ms C]. In the course of the interview, after the applicant provided this unequivocal response to the delegate, the delegate discussed the fact financial transactions demonstrated that the applicant had in fact been sending money to [Ms C] in Iran after his arrival in Australia, as demonstrated by the information that the delegate subsequently covered by a s 438 certificate. The applicant’s response to the delegate was that he opened a bank account for [Ms C] while in Iran and was sending money into that account but had not spoken to her and did not know whether any money was taken out by her. He was doing this out of his heart. His evidence suggested that he was blindly sending money to that account in the event that [Ms C] was to access it. Despite this explanation to the delegate, a subsequent submission suggested that [Ms C] had contacted the applicant’s family to get the telephone number of the applicant in Australia which was provided, and [Ms C] spoke to the applicant about the difficulties she was having in Iran and asked him to send money. He then claimed that he only spoke to her the one time since being in Australia.

The applicant initially claimed that [Ms C] received 89 lashes as punishment. She was made to receive 10 and the balance was deferred. However, at the delegate interview the applicant said that [Ms C] received the sentence of 89 lashes but she did not receive any because she was given a good behaviour bond on account of having a mental problem and that if she didn’t repeat offending, the lashes would go away. The applicant responded to the Tribunal’s concern but saying that [Ms C] was sentenced to receive 10 lashes with the 79 deferred but he was not sure whether she received the 10. He knew the order that she had received because it was given to him in a letter from the court. He disputed that he told the delegate that [Ms C] received no lashes, but a listening to that recording demonstrates that is what he did say.
The applicant told the Tribunal that he may have got the time and dates about his previous claim wrong. This was obviously in reference to the delegate decision record where the delegate wrote that the timeline for the relationship with [Ms C] did not add up. Specifically, the delegate detailed the following:
“The applicant’s POE application states that his problems began just after his birthday, in about mid-July 2011, and that he was initially imprisoned for two and a half months. This means he was released from prison roughly in September 2011. The applicant claims that he did not receive any lashes until four months after he was released from prison, because [Ms C]’s husband was appealing the sentence. This means that he would not have received those lashes until January 2012. He claims that one month after he was lashed, he recommenced the relationship, which would have been February 2012. He claims that he saw her for a number of weeks, until he received a phone call from [Ms C]’s husband, approximately 20 days before he left the country, accusing him of still seeing [Ms C]. This would make it about March or April 2012. However, the applicant arrived in Australia in November 2011, which is five months before he would have actually left Australia if his timeline is to be believed.”
“In the SHEV application, the applicant claims claims he was imprisoned for seven months because of his relationship with [Ms C]. This seven month roughly corresponds to the two and a half months the applicant claims to have been imprisoned and the cour months the appeals process allegedly took while he was out on bail. If it is to be assumed that his issues because of this relationship began in mid-July 2011, as he has previously claimed, this means he was imprisoned until February 2012, at which pint he then resumed the relationship for a time and left 20 days after receiving the call from [Ms C]’s husband. Once again, this means that the applicant could not have left Iran until March or April 2012.”
The applicant told the Tribunal that he may have increased the time he was imprisoned because time was going slowly and when he was in Australia, he did not know that ‘a case would be developed against him.’ He told the Tribunal that when he was being asked about times, he gave approximate information. He claimed that because he had been imprisoned and tortured, his timing was not accurate and that he had not told lies.
The Tribunal also raised with the applicant the illogicality of [Ms C] threatening to show her husband photos of her and the applicant naked together as a means of getting him to resume the relationship, which he told the Tribunal was because [Ms C] kind of forced him to do so. The Tribunal wondered why the applicant would put himself at risk again in those circumstances, but the applicant attributed this to wanting to have a relationship with [Ms C] against a small percentage of fear. The applicant explained to the delegate that he did so because he knew that [Ms C] would never actually show her husband these photos. The illogicality of [Ms C] potentially showing her husband photos of her and the applicant which would demonstrate an illicit relationship is difficult to reconcile.
The delegate decision also noted that the applicant had provided three documents dated [date] December 2011, [date] February 2012 and [date] May 2012 which purported to be summonses for him to attend the Iranian Revolutionary Court in response to a complain by [Ms C]’s husband, but as noted previously the applicant told the Tribunal that he no longer had any protection claims concerning the relationship he allegedly had with [Ms C]. In the protection visa application form signed 23 May 2017, the applicant did not claim that he was subject of a criminal investigation or had criminal charges pending against him.
In the Tribunal’s assessment, the reason that the applicant did not continue with the protection claims concerning his claimed relationship with [Ms C], the harmed he claimed to have suffered in Iran because of that relationship which involved beatings, detention, prison and corporal punishment, is because the delegate decision record made it very clear that there were significant credibility issues concerning those claims in light of the inconsistent evidence provided by the applicant, and in the case of whether the applicant had spoken to [Ms C] since leaving Iran, an outright lie. Even when the applicant was confronted with the fact that he had been sending money to [Ms C] at the delegate interview, the applicant maintained that he did not speak to her and instead was sending money to an account that he had opened for her while in Iran. It was only later via a written submission that he said he had spoken to her but only once since coming to Australia.
The Tribunal has no idea why the applicant would not provide consistent evidence about as basic as whether he had spoken to [Ms C] since coming to Australia. Speaking to her did not appear to undermine his protection claims. The Tribunal’s assessment is that the applicant saw some advantage in hiding this from decision-makers and then inventing a story about opening an account for her while in Iran to explain the financial transactions while still initially saying that he did not have any contact with her and then admitting after some time to reflect on what he had asserted about their contact while he was in Australia, admitting that he had spoken to her on the telephone. The Tribunal’s assessment is that this demonstrates that the applicant has a flexible approach to the truth and was prepared to say whatever he thought would assist him to be granted a protection visa, regardless of the truth of it.
The Tribunal is also satisfied that the reason there has been inconsistent evidence about dates is not due to the fact that the applicant gave approximate information, but because the applicant’s evidence has changed over time because the protection claims concerning the applicant’s relationship with [Ms C], and the resulting harm he claimed to have suffered as a result of that relationship necessitating him departing Iran for Australia, were manufactured in order to be granted a protection visa. The Tribunal is not satisfied that there is any truth to those protection claims and is satisfied that the reason the applicant did not continue to advance those claims at the Tribunal hearing was not due to his acceptance that time had passed since his departure from Iran and he was not longer submitting that the risk of harm to him was real, but because he knew that there was serious credibility issues with those claims, and was concerned that if the Tribunal explored those claims at the Tribunal hearing, the resulting credibility issues may impact on his other protection claims.
For the sake of completeness, the Tribunal finds that there is no real chance the applicant will suffer significant harm in Iran due to the claimed narrative about what the applicant asserted happened to him in Iran and is not satisfied that there is a real risk the applicant will suffer significant harm in Iran due to his claimed narrative about what the applicant asserted happened to him in Iran. The Tribunal comes to those conclusions because the Tribunal is not satisfied that the claimed harm experienced is credible. The Tribunal is not satisfied that the applicant departed Iran because of those experiences of fear of future harm and is not satisfied that the applicant departed Iran in anything other than a usual ordered lawful exit.
Evidence about the applicant’s conversion to Christianity and claimed fear of harm in Iran based on this conversion.
In a written statement dated 3 February 2012, the applicant did not claim to have converted to Christianity. According to the delegate decision record for protection visa application made on 31 May 2017, when the applicant made a request to the Minister to intervene in the applicant’s case on 20 August 2014, the applicant included a certificate of baptism dated [in] July 2013. In the protection visa application form that was subsequently lodged by the applicant, he detailed his religion as Christian. He wrote in that form that since his arrival in Australia, he was introduced to the Christian church and was warmly welcomed. He wrote that he was an active member of his church and outspoken about his religion on social media. He claimed that his friends and family were well aware of his conversion. He claimed that because of attitudes held by the Iranian Government regarding apostasy, he is certain that he would face significant harm if he returned to Iran.
At the delegate interview, the applicant said that when he called his sister to congratulate her for her wedding, she would not speak to her because he had converted to Christianity. The applicant attributed this to the belief that if a person converts to Christianity, that person rips the Koran and disrespects Islam. Even though the applicant told family that was not the case, they do not believe him. He said that his mother speaks to him despite the conversion, although the conversation is not much. His father does not talk to him. He described their conversations as just greetings. He told the delegate that he learned about religion in school but in high school religion gradually cools off. He had a religious belief in Iran but it was not strong, and he just followed his family. In Iran, he knew that Jesus was a prophet and was crucified, but that was it because in Iran no one has access to a Christian Bible or is permitted to go to Christian churches so there are limited ways to learn about it. The delegate asked about the role of Jesus in Islam, and the applicant said he was a prophet and that it is all about Islam and nothing else. The delegate asked about whether Jesus had an important role in times to come. The applicant said that there were 12 imams in Islam and that one of the prophets will return. When asked about Jesus’ relationship to Mohammad, the applicant said that Jesus sacrificed his life, whereas Mohammed took peoples lives if they did not belief in him. The applicant said that the Christian God and Muslim God were different in his mind, because in Islam people see themselves as high and humanity is low, meaning that you can do what you like and still go to heaven. He cited examples of Muslims inviting a person to convert and being justified killing the potential convert if the convert refused to accept. The applicant contrasts that with Christianity, which he described as the other way round, with Jesus giving up his life for humanity.
The delegate then went on to assert that Islam and Christianity believe in the same God, noting that they are both Abrahamic religions. The delegate then went through the descendants of Abraham, and pointing to the fact that Mohammad and Jesus were both descendants. The delegate also asserted that Jesus is the most mentioned person in the Koran, foretold the arrival of Mohammad, and that he was pretty important in the Koran. The applicant responded that his understanding of Islam was that Jesus is considered a prophet, and that Shia Muslims believe that Jesus will return.
The applicant told the delegate that he became interested in Christianity when he was released from immigration detention, because he felt hopeless. He said that there was a friend in immigration detention who was an Iranian Christian, and the friend took the applicant to Church. The applicant told the delegate that he found the Bible story in Matthew Chapter 8 particularly compelling because it demonstrated that people will be healed by Jesus if they believe in him. He also liked the story in Luke Chapter 10 about the Good Samaritan, and Matthew Chapter 13 about spreading seeds because it spoke about the impact of a person’s actions. The delegate contrasted the applicant’s Christianity with sending money back to Iran about which he had not told his current girlfriend, which in the delegate’s assessment meant that the applicant was ‘not a very good Christian.’ The delegate also explored how a person who did not have strong faith in Iran would have such strong religious beliefs in Australia, which the applicant addressed by saying that in Australia he had received much love and compassion which changed him a lot. He told the delegate that in Iran, there was a belief in his head that you should have a relationship with God and that it was through Christianity that he found that contact.
The delegate asked the applicant about his Christian denomination and the applicant identified that he was a Baptist and that this was a protestant religion. He identified that the protestant religion came from protesting. The protest related to disagreement about teachings. The applicant said that he first went to a Farsi speaking church and then chose his current church. He identified that he likes the Baptist because a Baptist needs to announce that you are a Christian and a believer. He told the delegate that at church the week before the delegate interview there was a discussion about Moses parting the Red Sea. He identified the differences between the Old Testament and the New Testament being prophecies and Jesus completing those prophecies, teaching love and humanity. He identified that there were four books that made up the Gospels, and that the story of Jesus’ birth is contained in Mathew and Luke.
The applicant also told the Tribunal that [Church 1] teaches that Genesis is the literal truth, and when asked to tell the Tribunal about God, Jesus Christ and the Holy Spit, the applicant said that Jesus is God through the human body who came to save humankind.
At the Tribunal hearing, the applicant confirmed that his parents did not support his conversion and that his relationship has gone cold as a result. Two of his brothers do not speak to him, and one sister does not have a good relationship with him, but he speaks much more to an older sister, but does not discuss religion with them at all. He confirmed that he speaks to his family in Iran, as was suggested in the protection visa application form, but the calls are very short. He repeated to the Tribunal how he became a Christian as told to the delegate. The Tribunal observes that the delegate decision record details that the applicant said at the interview that the applicant’s first exposure to Christianity was through his girlfriend in Sydney, but the applicant made no such claim in the recording of that interview. The Tribunal accepts that the applicant gave consistent evidence that it was a person in an immigration detention centre that introduced him to Christianity.
The applicant told the Tribunal that he practises Christianity by going to church, studying the Bible and having discussions with friends. He told the Tribunal that he started attending church from 2012 and started attending [Church 1] after initially attending church services in [Suburb 1]. He started attending [Church 1] from the start of 2013 and was baptised in July 2013.
The applicant provided the Tribunal with a letter from [Church 1] dated 26 July 2022 from [Pastor D]. In that letter, [Pastor D] wrote that he had known the applicant since July 2013 when he visited that church. That letter confirmed that the applicant was baptised [in] July 2023. The Tribunal asked how the applicant was attending [Church 1] from the start of 2013 if the Pastor only knew the applicant from 13 July 2023. The applicant attributed this to [Pastor D] not knowing him well, and that the applicant was in touch with [Mr E], who would take the applicant to the Church. The applicant told the Tribunal that he was in touch with [Mr E] and they had discussions about Islam and Christianity and the applicant was told that after that, he can become baptised. [Mr E] holds discussions in a small room and the big room is where [Pastor D] does the service. The applicant told the Tribunal that his child is not baptised because he has no influence of the family of the mother of his child and they are Mormons who go to a Mormon Church in [Suburb 2], New South Wales. The applicant had suggested that his child get baptised, but he did not want to create any issues. The applicant also sad that he went to a Church named [Church 2] in [Suburb 3] for a while and that church wanted to baptise the child, but the child’s mother said something different, so this did not occur. The applicant said that if he was the only person responsible for his child, he would have baptised the child.
The letter from [Pastor D] detailed that the applicant attended the church until October 2013 when the applicant was placed back into immigration detention, and that he resumed attending the church from November 2016. The letter noted the applicant’s activities with [Church 1], including attendances, bringing other people to the church and completing various courses. It also suggested that the applicant put Bible truths on his Facebook page, and that the applicant had been mocked by 10 Muslims in Iran and Australia. The Pastor’s assessment was that the applicant was a genuine Christian convert.
The applicant told the Tribunal that if he returned to Iran, he would not practice his Christianity publicly, because if he practiced publicly, he would be arrested. He told the Tribunal that he would practice Christianity privately. The applicant said that he had not become baptised and only participated in Christian activity in Australia to get a protection visa.
The Tribunal accepts that the applicant has participated in Christian activity in Australia and that he has given consistent evidence about how he came to be a practising Christian. The Tribunal accepts that the applicant has been baptised by [Church 1] but is not satisfied that the applicant was involved in any Christian activity prior to 2013 when he started attending that Church. The Tribunal is also satisfied that the letter of [Pastor D] demonstrates that the applicant only started attending that church shortly before his baptism. The Tribunal is not satisfied that the Pastor would not be aware of the applicant if he was attending that Church prior to July 2013. The Tribunal notes that corroborative evidence of claimed social media activity referred to in [Pastor D]’s letter was not produced to the Tribunal, nor is there any evidence that corroborative evidence was produced to the delegate. The Tribunal is satisfied that if there was any social media activity espousing Christianity the applicant would have produced it in support of his protection claims, notwithstanding the DFAT Country advice, referred to below, that the Iranian authorities have little interest in the activities in the activities conducted by Iranians, including on social media, while outside the country (if they were not of adverse interest prior to their departure).
The Tribunal accepts that the applicant’s failure to have his child baptised is not indicative that the applicant is not a Christian. The Tribunal also accepts that the applicant’s oral evidence provided to the delegate and the Tribunal to demonstrate an understanding of Christianity that it could reasonably be expected a genuine convert to discuss. However, in relation to his knowledge and understanding of Christianity, this may also be the result of study and the applicant’s participation in the various courses that [Church 1] has offered the applicant (as demonstrated in the letter from that Church) and the applicant’s desire to impress a decision-maker in order to be granted a protection visa. While [Pastor D] may believe that the applicant is a genuine Christian convert, that is ultimately a matter for the Tribunal.

The Tribunal ultimately concludes that the applicant is not a genuine Christian convert and that he has become baptised in Australia and participated in activity with [Church 1] in order to be granted a protection visa. As a result of this, the Tribunal is satisfied that if the applicant returned to Iran, he would not participate in any Christian activity and would not engage in any conduct connected with Christian activity that would result in him facing a real chance of serious harm, or a real risk of significant harm. The Tribunal comes to this conclusion for the following reasons.
First, the Tribunal is not satisfied that the applicant is a credible witness, as evidenced by the Tribunal’s findings concerning his claims about what happened to him in Iran. The Tribunal’s findings demonstrate that the applicant has a flexible approach to the truth, and the Tribunal is not satisfied that the applicant’s flexible approach to the truth is limited to the protection claims he did not pursue on review.
Second, the corroborative evidence that the applicant provided concerning his conversion to Christianity is limited to the letter from [Pastor D], which states that he knew the applicant from July 2013. The applicant provided no corroborative evidence from the person who he claimed introduced him to Christianity while in detention, or any corroborative evidence concerning his claimed attendances at churches other than [Church 1]. The Tribunal is also not persuaded by the applicant’s argument that he was attending [Church 1] from early 2013 because the Tribunal is satisfied that if he had been attending that church from early 2013, this would have been reflected in the letter of [Pastor D]. The Tribunal struggles to accept that a Pastor would not be aware of the applicant’s attendances at that Church from early 2013 if he had attended that Church from the start of 2013 as claimed.
Third, the timing of the applicant’s first attendance at [Church 1] (as the Tribunal has found it) and his baptism occurred in the same month. While the Tribunal accepts that a genuine convert may convert their faith quickly, in all the circumstances of the applicant, the Tribunal is satisfied that this was done not because of a genuine faith conversion, but in order to achieve a protection visa.
Fourth, despite the assertions that the applicant has posted on social media about Christianity, no corroborative evidence was provided to demonstrate any such activity. The Tribunal’s assessment is that the failure to provide any corroborative evidence of such posting suggests that no such postings were made and that any claim to the contrary contained in the letter of [Church 1] was based on the applicant’s self-reporting of that activity. The Tribunal similarly finds that the reference to the applicant being ‘mocked’ in both Australia and Iran by Muslims is based on the applicant’s self-reporting to [Pastor D] and does not establish the truth of the claimed mocking.
The totality of the Tribunal’s concerns results in the Tribunal giving no weight to the applicant’s claims that his family oppose his conversion to Christianity (as the Tribunal does not accept that he is a genuine Christian convert) and is not satisfied that any people, authority or group in Iran know about his claimed conversion to Christianity in Australia. Even if some person, authority or group in Iran became of the applicant’s claimed conversion to Christianity in Australia, the country information discussed as part of the applicant’s claim that he faces harm as a result of returning to Iran as a failed asylum seeker suggests that activity conducted outside of Iran is of little interest to Iranian authorities where an applicant has no adverse profile prior to departing that country. In any event, the Tribunal is not satisfied that any person, authority or group in Iran is aware, or likely to become aware, of the applicant’s activity in Australia, in the reasonably foreseeable future.
The Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm in Iran due to his claimed conversion to Christianity in Australia or participating in Christian activity in this country. The Tribunal is also not satisfied that there is a real risk the applicant will suffer significant harm in Iran due to his claimed conversion to Christianity in Australia or participation in Christian activity in this country. As the Tribunal is not satisfied that the applicant is a genuine Christian convert, it follows that he will not participate in Christian religious activity in Iran as the Tribunal is satisfied the applicant has only done so to get a protection visa in Australia. The Tribunal is satisfied that if the applicant is not successful getting a protection visa and is required to leave Australia, that participation will stop.
Evidence about being a failed asylum seeker returning from a western country to Iran and claimed fear of harm in Iran based on this profile.
In the written submission provided to the Tribunal prior to the Tribunal hearing, it was identified that the applicant was claiming that he was a member of a particular social group, namely failed asylum seeks returning from a western country. After identifying the basis upon which failed asylum seekers from western countries should be considered a particular social group, it was submitted that ‘it opens the doors of probably accusations of wrongdoings, both in regards to political and social fields imposed by the regime to these failed asylum seeks who are from minorities ethnicities.’
The submission detailed ‘RRT Country Advice, published 19 August 2010, the Australian Government has suggested that the safety, liberty and life of failed asylum seekers are threatened upon their return to Iran.’ The submission went on the detail that such returnees are ‘likely to be imputed with anti-regime views and be subject to persecution.’ It was suggested that people who ‘travel to western countries and express their dissatisfaction with the Iranian government, as the applicant has done, are at risk of persecution of political dissent.’ The submission referred to an Amnesty International article published in May 2011 where a Kurdish boy was apparently forcibly returned by Norway to Iran, and he was reportedly arrested and still detailed. Another Amnesty International Report apparently suggested that ‘asylum seekers are interrogated on return, whether or not they have been political activists in Iran or abroad.’
At the Tribunal hearing, the applicant claimed that because he had been out of Iran and requested protection, this would cause problems for him. He claimed that Iranian authorities would want to know what he had been doing in Australia and what groups he had joined while in Australia. He claimed that if something happens in Iran, he would be arrested first because he had been in Australia and claimed protection.
The Tribunal discussed the contents of the DFAT Country Information Report on Iran dated 14 April 2020 which advises that authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. As such, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activities. The treatment of returnees, including failed asylum seekers, depends on the returnee’s profile before departing Iran and their actions on return.
The DFAT assessment in that report states that unless they were 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. That assessment is repeated in the later report of 24 July 2023.
The Tribunal is persuaded that the recent DFAT assessments should be considered over any dated information to the contrary as the DFAT assessment represent the most current and dispassionate assessment about the circumstances of returnees to Iran.
The applicant’s evidence is that he departed Iran on his own passport. For the reasons discussed in the assessment of the protection claims that were not advanced concerning his claimed prior experiences in Iran, the Tribunal is not satisfied that the applicant departed Iran in any way other than usual orderly travel. That is to say, the Tribunal is not satisfied that the applicant had to engage in any activity to secure his safe passage out of Iran.
In those circumstances, the Tribunal is satisfied that the applicant’s return to Iran will not draw any adverse interest from the Iranian authorities, and that DFAT Country Information Reports made it clear that there is little interest in prosecuting failed asylum seekers where the applicant was not of adverse interest prior to his departure. The Tribunal is therefore not satisfied that there is a real chance the applicant will suffer significant harm in Iran as a result of being a failed asylum seeker returning to Iran, even if the applicant’s activities in Australia were known to Iranian authorities. The Tribunal is also not satisfied that the applicant’s return to Iran in the circumstances as the Tribunal has found them means here is a real risk the applicant will suffer significant harm.
Evidence relating to the Convention on the Rights of the Child
In a written submission provided prior to the Tribunal hearing, under the heading ‘The applicant’s claims’ was a reference to ‘Convention on the Rights of the Child.’ It was noted that the Tribunal should have consideration to Australia’s obligations under that Convention.
The submission detailed that Australia’s obligations are to ensure that all children are afforded the rights given to them under the Convention and stated that the duty of care requires that each child within the signatory’s jurisdiction without discrimination of any kind.
It was submitted that as the applicant married an Australian and had a child who is an Australian citizen.
At the Tribunal hearing, the applicant confirmed that the only protection claims raised related to his conversion to Christianity and his profile as a failed asylum seeker returning to Iran from a western country. He did not raise that the Convention meant that the applicant satisfied the criteria for a protection visa.
The submission detailed that while in Australia, the applicant married an Australian citizen and that they had a child. The submission detailed that due to the mother’s drug use the child was placed in the car of an aunt. The submission referred to an attached report of a psychologist that recommended that the applicant’s daughter be placed in his care. It was submitted that the Tribunal take into consideration the bests interest of the child and find that ‘granting protection to the applicant will be a significant and positive decision for the family.’ However, the submission failed to identify how this meant that the applicant met the requirements for the protection visa.
The Tribunal explored at the Tribunal hearing whether the applicant was in fact the father of the child, because no birth certificate had been provided. Subsequent to the Tribunal hearing, the applicant provided a New South Wales birth certificate showing that the applicant is listed as the father of [Child B], who was born on [date] in [Suburb 4], New South Wales. The Tribunal is satisfied on the basis of the birth certificate that he is the father of that child, and that ongoing child protection proceedings are in place concerning the placement of that child.
However, the fact that applicant is a father to a child born in Australia who is the subject of involvement with government services and will be potentially separated from that child as a result of his removal from Australia to Iran does not mean that there is a real chance that the applicant will suffer serious harm in Iran due to his race, religion, nationality, membership of a particular social group, or political opinion in Iran. Similarly, just because the applicant is a father to a child born in Australia who is the subject of involvement with government services and will be potentially separated from that child as a result of his removal from Australia to Iran does not mean that the applicant will suffer significant harm as defined in the Act. The Convention on the Rights of the Child does not equate to the applicant meeting either s 36(2)(a) or (aa) of the Act.
CONCLUSION
The issue in this case is review 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 ‘refugee’ or a person who meets the requirements for ‘complementary protection.
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Iran due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection

100. For the reasons given, 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 the applicant will suffer significant harm.
101. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
102. For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
103. Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
104. 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.
…

[2024] AATA 2653

21 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction