1824560 (Refugee)

[2022] AATA 4196

1824560 (Refugee) [2022] AATA 4196 (17 October 2022)

Corrigendum

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sara Khodajoo

CASE NUMBERS:  1824560

2208291

COUNTRY OF REFERENCE:                   Iran

MEMBER:Brendan Darcy

DATE OF DECISION:  17 October 2022

DATE CORRIGENDUM

SIGNED:25 October 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

At the front [‘Decision’ tab] and back [para 86] of the Decision Record, the following incorrect case number is provided: 2298291 – instead of 2208291. The incorrect case number has been replaced with the correct case number.

Brendan Darcy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1824560

2208291

COUNTRY OF REFERENCE:                   Iran

MEMBER:Brendan Darcy

DATE:17 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the following matters for reconsideration:

· Matter 1824560 Protection (Temporary) visa application made on 26 March 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

· Matter 2208291 (Safe Haven Enterprise) Protection visa application made on 17 September 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 17 October 2022 at 2:24pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – apostate from Islam to atheism – ethnicity – Faili Kurd – harassed and questioned by security and intelligence agents – weblog with anti-religion and government and pro-secularism content – monitored and blocked by cyber police – social media activity in Australia, some under actual name – detailed and consistent claims and evidence – adverse information not relevant and given no weight – returned failed asylum seeker – country information – cumulative factors – more than remote chance of serious harm amounting to persecution – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 65, 91K, 438, 446A, 448B
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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

1. This is an application for review of two decision in the Department refused to grant the applciant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of the Islamic Republic of Iran (Iran), applied for a Temporary Protection visa on 18 January 2016.  Following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 48B bar which prevents further protection visa applications and the applicant was permitted to apply for a Safe Haven Enterprise visa 17 September 2020.

3. The delegate refused to grant both the visas on the basis that the applicant did not have a real chance of serious harm, or a real risk of significant harm based as an apostate from Islam to atheism or as a failed asylum seeker under sections 36(2)(a) an 36(2)(aa).

4. Applications for review with the Tribunal were lodged on 23 August 2018 and 7 June 2022 respectively. 

5. Under the circumstances, the Tribunal has constituted the applicant’s applications for review to this presiding Member

6. The applicant appeared before the Tribunal on 3 October 2022 to give evidence and present arguments in relation to both review applications.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

8. The applicant was represented in relation to these reviews.

   Criteria for a protection visa

9. 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.

10. 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.

11. 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).

12. 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.

13. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

14. The applicant was represented in relation to the review. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

16. The applicant claimed to be born on [Date 1] in [Village 1] in Ilam Province in Iran.

17. Copies of the following identity documents in support of his protection visa applications are on the applicant’s Departmental files ([number] and [number]). They include:

    ·     A certified copy of Iranian passport issued [in] 2012 in the name of [the applicant] born [Date 1] in Ilam;

    ·     A certified copy of Iranian birth certificate, as per translation, in the name of [the applicant] born [Date 1] in [Village 1], [Sub-district 1], Central District, Ilam;

    ·     A certified copy of Iranian national identity card, as per translation, in the name of [the applicant] born [Date 1], father’s name [Mr A], valid [until] February 2012; and

    ·     A copy of Certificate of Marriage for [the applicant] and [Ms B] dated [September] 2017.

18. [In] January 2013, he left Tehran by air and flew to [Country 1] then to [City 1], the capital of [Country 2]. The applicant stayed in [City 1] for around two nights then flew to [City 2]. The applicant remained in [Country 2] for three nights, before boarding the vessel set for Australia.

19. According to Departmental records, the applicant arrived in Australia by sea at [location] [in] February 2013.  The applicant’s boat was codenamed ‘[Codename]’ and the applicant was allocated the Boat ID: [ID Code].

20. The applicant attended an entry interview on 14 February 2013. Below are the reasons he provided to the authorities for leaving Iran:

    ·     He had a fiancée named [Ms C] whilst at university, but they had separated;

    ·     He was harassed and questioned by the Herasat branch on his campus, as well as Iranian Intelligence due to him being a Kurd and he was accused of being involved in terrorist groups. (The Intelligence Ministry has established Herasat branches in every civilian organization and university in the country, tasking them with identifying potential security threats. Herasat officials reportedly surveil employees (e.g., by monitoring their communications), act as informants, and influence hiring and firing practices.);

    ·     They pressured him so much that he had to leave his studies in [year];

    ·     During his military service, he was harassed a lot and his training was shorten to 17 days and they made him do certain duties;

    ·     He could not complete his studies, he felt illiterate and embarrassed because his father made a big investment in his future;

    ·     When asked whether he was involved in any political activities, he claimed while he was at university he attended some student meetings to debate about the regime;

    ·     He had no involvement with the Basij and Sepah in both Ilam and Tehran;

    ·     During [year] to mid-[year], he completed compulsory military service. He received 17 days of basic training and serviced in [a branch of the armed force] did secretarial and admin work in the office;

    ·     When asked what will happen to him if he returns to Iran, he claimed because he is Kurdish Faili, there will be a lot of pressure from the Basij and Sepah and it would mean no future for him;

    ·     He started arranging to travel to Australia in or around November or December 2012.

21. The applicant wrote to the Minister to personally intervened in allowing the applicant to apply for a protection visa on 22 March 2013. The Minister lifted section 46A bar to permit the applicant to lodge a protection visa and was granted a Class UJ Subclass 449 Humanitarian Stay (Temporary) visa and a bridging visa to remain in the community in April 2013.

    Temporary Protection Visa application

22. On 29 March 2016 the applicant applied for a Class XA Subclass 785 Temporary Protection Visa. Attached was a statutory declarartion in which the applcnt claimed the following:

    ·     The applicant claimed to be Faili Kurd by ethnicity;

    ·     The applcaint was born as a Shi’a Muslim but his family were not strict. He is now an atheist;

    ·     The applicant was born in [Village 1] in Ilam Province, Iran. His family later moved to Ilam City and he attended primary school there;

    ·     In [year], he started middle school. He was a good student but he always had problems with the Quran, Islamic ideology and Arabic classes. He would argue with the teachers and raise several questions;

    ·     In high school, the applicant was good in [Subject 1] and [Subject 2] but he still had many questions about Islam and ideology. Daily prayers were compulsory but he always try not to attend;

    ·     In Year 10, the applcaint enrolled in a vocational school and finished Year 12 by majoring in [Subject 3] in June [year];

    ·     After Year 12, the applicant could not get into public universities, so he moved to Tehran and started working in a [business] with some relatives. The applicant worked for a few months until February [year] when he got into an associate diploma in [Subject 3] at [University 1], Najafabad;

    ·     He realised the atmosphere in the university was not what he expected, it was tense and under the control and scrutiny of security forces;

    ·     He was an outspoken person and could not stop raising questions or protesting;

    ·     On several occasions, he was referred to the university’s Herasat office due to him wearing a t-shirt or a pair of jeans which they considered it non-Islamic. Because of these breaches, the applcaint was barred from using the university’s restaurant, library and internet;

    ·     He was referred to the university’s Herasat office on many occasions. At first, he was forced to give an undertaking that he would not be involved in arguments or raise questions, which were deemed inappropriate;

    ·     The applicant was barred from attending the end of semester exams;

    ·     Herasat wanted the applicant to quit university, but it did not want to expel him as it would create noises. He was asked to withdraw or co-operate with them. He withdrew after four semesters;

    ·     [Mr D] was expelled from the university in the 80s due to his political activities and religious views. [Mr D] spent six months in prison as a prisoner of conscience. [Mr D] influenced his worldview a lot;

    ·     He worked for [Mr D] in his [shop] for a while before he joined military service;

    ·     In March [year], the applicant completed his military service and returned to Ilam but was unable to find a employment;

    ·     In May [year], the applicant moved to Tehran to find a job and to improve his knowledge in secularism and politics. The applicant worked at [Employer 1] of Tehran and shared a house with a few other workers;

    ·     The applicant had weekly meetings with a few likeminded friends about current political, social and religious issues. Initially, there were only him and [Mr E], who was also working in [Employer 1] in the meeting. Later, 5 to 6 other people joined;

    ·     The meetings were usually held at his house. The authorities did not find out about the meetings but his neighbours became suspicious and he had quarrels with them;

    ·     Around this time, he started a weblog on ‘[URL]’ with his university friend, [Mr F]. They used to publish articles and posts about freedom of speech, politics, religion and secularism. They used to criticise the regime’s interpretation of Islam, how the state and religion are not considered as two separate entities and the specific verses of the Quran. They would promote secularism as the only way to improve and secure freedom of speech and democracy in Iran. They would share articles from other critics of the regime, such as Bahram Moshiri and Ahmad Kasravi;

    ·     Their weblog gained hundreds of views. The applicant wrote the posts for the weblog on his personal computer and emailed them to [Mr F] who lived in Esfahan;

    ·     In October 2012, the government filtered their weblog and it was closed a few weeks later. He and [Mr F] decided to run another weblog but it was closed after a few hours;

    ·     When their second weblog was closed, a blogger named Satta Baheshti, who wrote against the government was killed while he was in custody of Iran’s cpbyer police, FATA (Police for the Sphere of the Production & Exchange of Information). After Sattar was killed, FATA started arresting several other bloggers.

    ·     He was in daily contact with [Mr F] as they were looking for a way to run the weblog again. Their weekly meetings continued but because of the risks involved, fewer people attended. Sometimes there were only him and [Mr E] in the meeting.

    ·     On 9 January 2013, he called [Mr F]’s mobile and it was turned off. He called [Mr F]’s home, he was told by [Mr F]’s mother that some plain-clothed officers arrested [Mr F] on the day. They also took [Mr F]’s computer, books, papers and his other belongings.

    ·     He called [Mr E] and told him about [Mr F]. They decided to leave the country. [Mr E] suggested to leave Iran illegally visa [Country 3] border but he did not accept as it was dangerous.

    ·     He went home to pack his belongings and left his mobile at home. He then went to a motel in [Village 2].

    ·     He called his employer and told him to transfer the rest of his wages to his account. He did not have enough money to leave Iran.

    ·     He called his mother and told her that he is going on a trip.

    ·     He purchased a ticket to [Country 2]. He stayed at his high school friend’s place for a week before he departed Iran;

    ·     A few days later, he called [Mr F]’s house again. He was told by [Mr F]’s mother that she had no news about [Mr F];

    ·     He called [Mr E]’s mobile but it was turned off. He called [Mr E]’s home, his father did not give him an answer. He believed [Mr E] either left the country or was in hiding;

    ·     He never heard from [Mr F] and [Mr E] again;

    ·     He called one of his uncles and told him what happened. His uncle agreed to help him and transferred fourteen million tomans into his friend’s account;

    ·     [In] January 2013, he departed Tehran by plane to [City 1];

    ·     After he arrived [City 1], he called his family and realised the authorities came to their house asking for him.

    ·     After he arrived in Australia, he realised there was an arrest warrant issued by FATA which was shown to his parents in Ilam. Uniformed men also visited his family home in Ilam on three occasions.

    ·     On the first occasion, the uniformed men searched the house and asked his father for his whereabouts and who his friends were.

    ·     After he came to Australia, he no longer feels fearful about expressing his views. He mainly expressed his views on his [Social media 1] account called ‘[Username 1]’. He has over 2000 followers and over a thousand people viewed his posts. He does not reveal his identity on his account as his posts are assertive and does not want to put his family members in Iran in danger.

    ·     He does not have access to this email account anymore so he cannot provide evidence of their correspondence. He did not keep any evidence of his involvement in the weblog as he was not intended to seek asylum. He did not raise this claim in his arrival interview because he had received misleading advice from the people smuggler and other detainees. He was not in a good state of mind and he thought the interview was for identity screening.

    ·     If he returns to Iran, he will be harmed by the Iranian government, especially the FATA and Ministry of Intelligence (Ettela’at). He will be arrested, tortured and imprisoned due to his political opinion and views on religion.

23. On 21 September 2016, a delegate acting on behalf of the Minister refused to grant the applicant a TPV. The applicant then applied to the Immigration Assessment Authority (IAA) for merits review of the refusal on 11 October 2016. 

24. The applicant submission contained the same claims as the first review application. The following new claims and information were added:

    ·     New information concerning a weblog created by the applicant in 2015;

    ·     The applicant’s [Social media 2] page;

    ·     A letter dated 24 September 2016 signed by several of the applicant’s family members and acquaintances; and

    ·     The difficulties he faced leaving his family and fiancée in Iran and the boat journey to Australia from [Country 2].

25. The IAA affirmed the decision not to grant the applicant a protection visa on 8 May 2017. According the IAA decision, no explanation was provided as to the reasons this new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant’s claims.

26. The applied to have the IAA’s decision revied by the Federal Circuit Court of Australia (FCC) on 25 May 2017. The FCC remitted the matter.

27. On 23 August 2018, the applicant launched a review of the refusal with the Administrative Appeals Tribunal.  This application for review was deemed valid following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447. The applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Temporary Protection visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

    Safe Haven Enterprise Visa application

1. The applicant, as mentioned above, was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 10 April 2013 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at [location]. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar and the applicant made a valid application for that Subclass of visa on 17 September 2020.

2. The Tribunal notes that the submitted claims a SHEV protection application lodged on 17 September 2020 were consistent set of claims within his Temporary protection visa application.

3. The applicant provided the following documents and supporting evidence prior to his interview with the Department:

   ·     Two screenshots of a [Social media 3] account profile for ‘[Username 2]’, showing he joined in December 2013 with [number] followers and 19 [posts]. The profile picture appears to be the applicant. Postings were in Iranian, no English translation provided.

   ·     A screenshot of [a Social media 1] account for ‘[Username 1]’ with 96 posts and [number] followers. Postings were in Iranian, no English translation provided. (No identifiers to show this account belongs to the applicant)

   ·     A screenshot of [a Social media 1] post insights, it shows the post reached 7381 accounts, 92% were not following ‘[Username 1]’.

   ·     A screenshot of a [Social media 4] account for ‘[the applicant]’, it shows this account has [number] subscribers, there appears to be 12 videos uploaded.

   ·     Screenshots of [Social media 1] account data and some of the top posts with English translation. It shows the [Social media 1] posts has reached 190617 accounts, of which [number] were followers. 96.8% of the audience were from Iran.

4. The applicant attended his SHEV interview on 1 February 2022, appearing via videoconference. The applicant was represented, and on 8 February 2022, the applicant’s representative provided a post-interview submission.

5. A delegate refused to grant the applcaint a SHEV protection visa on 3 June 2020.

   Evidence submitted to the Tribunal

6. The applcaint to have the SHEV refusal decision reviewed by the Tribunal on 7 June 2020 with the decision record attached.

7. On 26 September 2022, the applcaint’s representative submitted a prehearing submission which included:

   ·     A 12-page legal submission prepared by the applicant’s representative;

   ·     A birth certificate issued in the State of Victoria indicating the appclaint was the biological father of a daughter born on [Date 2]; and

   ·     A screenshot of the applcaint’s [Social media 1] page under the pseudonym of [Username 1];

8. The Tribunal also received a statutory declaration signed  by the applicant. The declaration was dated 23 September 2022.

9. As mentioned above, the applcaint attended a hearing for the combined matter 1824560 and 2208291 on 3 October 2022.

10. On file is a non-disclosure certificate signed and dated 14 March 2019. Issued under s 438, the certificate directed the Tribunal that it would be contrary to the public interest to disclose information submitted to the Department’s Border Watch Allegations and Referral Team provided to the Department on 21 and 25 November 2018. The certificate refers to the folioed material numbered [number] on the applicant’s [Department file]. 

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of reference

11. On the basis of the copy of the applicant’s Iran passport and other Iranian identity documents, the Tribunal is also satisfied that the applicant is a citizen of the Islamic Republic of Iran. The Tribunal finds that Iran is his receiving country for the purpose of assessing his claims to be assessed under sections 36(2)(a) and 36(2)(aa).

    Third country protection

12. There is no evidence before it to suggest that the applicant has the right to enter and reside in any other country for the purposes of s 36(3).

    Claims and findings

13. Overall, the Tribunal found the applcaint to be a credible and reliable witness who has consistently provided detail claims over a long period of time since his arrival in 2013.

14. The Tribunal also notes that the gist of the adverse information which attracted a non-disclosure certificate dated 14 March 2020 was from an informant claiming the applicant belonged to mutually related Iranians seeking asylum who have knowingly incorrect information about themselves to the Department. The complaint was lodged in 2018. Having examined the complaint, the Tribunal found that the adverse information had no relevance to the identity and claims presented to the Tribunal or undermined his overall credibility. It has placed no weight on it. Under the circumstances, the clear particulars of this information were not put to the applicant under the Act’s adverse information provisions as they would be the reason, or a part of the reason, for affirming the decision that is under review.

15. The Tribunal accordingly accepts the applicant is a Feyly Kurdish from the predominately Kurdish province of Ilam where his parents and other family members reside. It accepts his father and mother continues to reside in Ilam province and that he has three brothers who are in Australia, two brothers who are in Iran and one sister living in Iran.

16. It accepts the appclaint can speak, read and write in Farsi, speaks Kurdish and understands English. The Tribunal accepts the applicant belonged to a Shi’a Muslim family and that over time he became disillusioned with Islam, especially as it is practiced and enforced in Iran, and atheistic in his intellectual formation and convictions as a young adult and that he was formed by Iranian rationalistic writers such Ahmad Kasravi (1890 -1946) whose secular criticisms of Shi’a Islam led to his assassination by followers of an extremist cleric.

17. When the Tribunal asked if he was interested in Kurdish independence or fighting for more autonomy, the applicant responded that he was not because Kurdish movement for independence are too religious and that his secular and anti-Islamic views were his driving motivation as he believed secular values guaranteed freedom for all Iranians, regardless of religion or ethnicity.

18. The Tribunal accepts the past incidents which involve him and likeminded anti-religious or rationalistic motivated persons which cause the ire of religious authorities on university camps and that they undertook to disseminate atheistic material in Farsi on the internet, as claimed. It accepts that that Herasat’s monitoring of and confrontations with the applicant led to his forced withdrawal for his enrolled tertiary studies. The Tribunal relatedly accepts this caused great disappointment among his parents and adversely affected his engagement for an arranged marriage with his Kurdish fiancée.

19. The Tribunal accepts the appclaint completed compulsory military training during which he was insulted and degraded on the basis of his Kurdish ethnicity; and that he undertook work in [industry] in Tehran.

20. The Tribunal accepts the applicant meet clandestinely with around six friends who shared his secular outlook and that they began a blog and that the blog anonymously published in Faris articles critical of Islam and in favour of freedom of speech and secularism, including by Ahmad Kasravi.

21. The applicant claimed that the blog attracted hundreds of views but was soon  monitored by the Iran’s cyber police, FATA which led to internet access of the blog being filtered and then blocked by the authorities. The applicant also claimed they tried to upload a new blog, called [Blog name]. However, it was soon blocked. The applicant and other bloggers became to worry that they would meet the same fate as Seyyed Sattar Beheshti, a Persian blogger. Bahesthi was killed after being arrested and tortured by FATA in November 2012 for his anti-government online activities. In late 2012 or early 2013, the applcaint’s friend [Mr F], was received threatening calls by FATA. They were able to locate him via the blog’s IP (Internet Protocol) address from his home in Isfahan. The applicant and his friends considered travelling to [Country 3] by land for his safety but instead the appclaint chose to leave Iran by Tehran’s international airport. The applicant travelled on his own passport issued to him under his own identity and was not stopped by the authorities. The applcaint further claimed that his friend, [Mr F], was arrested and beaten in early 2013. While the applcaint was not arrested or detained prior to his departure, he claimed his parents and their neighbours in Ilam were visited by the authorities and enquired about the applicant’s whereabouts and his departure. On balance, the Tribunal accepts his detailed account as to the reasons he departed Iran which he posited to both the Department and the Tribunal in a reasonably consistent manner.

22. However, while it is accepted the applcaint held personally held fears that he would be seriously or significantly harmed at the time of departure, the Tribunal does not accept the applicant was a person of interest to the authorities based on his anonymous online activities given he was not subject to any exit ban.  

    Failed Asylum Seeker/Forced Returnee

23. As the Tribunal is finding the applicant to be a refugee in this matter, it will not be making exhaustive findings about each of the nexus reasons mentioned under paragraph 5J(1)(a) raised in this application. In this decision, the Tribunal has confided its findings that the applicant faces a well-founded fear of persecution based on him belonging a membership of particular social group, namely as a failed asylum seeker or forced returnee, cumulatively considered, should he be returned to Iran.

24. The Tribunal notes that the delegates’ decision records accepted the applicant belonged to particular social group, namely, as a member of failed asylum seekers, but did not accept the applcaint’s claim, either separately or cumulatively, amount to him facing a real chance of serious harm or a real risk of significant harm based on that membership.

25. For the following reasons, the Tribunal has reached an alternative finding.

26. The applicant asserts that he will come to the attention of authorities on arrival as a failed asylum seeker or forced returnee as these laws are selectively enforced against those with adverse political or religious positions which will be seen as anti-Islamic and against the Islamic Republic of Iran, which will in turn have him persecuted for one of these reasons. It is further asserted that he will be interrogated and then imprisoned in one of Iran’s prisons once his anti-religious and anti-government convictions are identified before being convicted and then punished for apostasy or for promoting atheism.

27. The applicant’s online activities in Australia are outlined in paragraph 30. The Tribunal notes that the applcaint has not attached his actual name to all of the blogs, with the exception of a [Social media 4] channel whose content included videos of prominent rationalists/atheists from the United Kingdom, Bertrand Russel, Richard Dawkins and Christopher Hitchens and Iranian writer, Salman Rushdie.  The appclaint claimed his mostly anonymous nature of his sur place online activities was designed to protect his family members back in Iran from physical harassment and ill-treatment.

28. The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be accused of holding anti-government political opinions, whether it is imputed or actual, which will led to a real chance of serious harm.

29. The most recent DFAT report also states that the authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.

30. More saliently to this matter, the DFAT report then states:

    A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.

31. There is available country information from other sources which undermine the reliability of this DFAT claim about the authorities not checking the social media accounts of forced returned.

32. According to the Swiss Refugee Council (SRC) report a contact person employed at Tehran airport advised SRC that people who did not depart illegally but were deported back to Iran:

    will all be interviewed and their case will be examined in detail. If a deported person did not participate in any propaganda against the Islamic Republic and did not assist foreigners involved in such activity, then he/she is released and can return home. However, it may take time to determine whether the person did not compromise the reputation of the country. [1]

    [1] Organisation Suisse d’aide aux refugiés; website The report is available in French at It was translated into English by the Tribunal: F. Kuthan, “Iran: Treatment of Rejected Asylum Seekers”, 18 August 2011.

33. The SRC report refers to four cases of mistreatment of returned asylum seekers:

    …[I]n 2011, several human rights organizations reported that Iranian asylum seekers deported from Europe were arrested, imprisoned and subjected to ill-treatment upon return to Iran.

    Rejected asylum seekers who encountered problems in returning to Iran during 2011. The most publicized case in 2011 was certainly that of Rahim Rostami, a young 19-years-old man of Kurdish origin, who had sought asylum in Norway in 2008, while he was still a minor. His application for asylum having been rejected by the Norwegian authorities, Rahim was deported to Iran on February 9, 2011, accompanied by two Norwegian police officers. After being handed over to Iranian authorities, he was interrogated and immediately transferred to Evin prison, where he spent several days in solitary confinement and where he was mistreated.

34. There is also more general information that social media users who post anti-government or anti-Shi’a Islam content is taken seriously by the authorities. According to the US Statement Department’s 2014 Human Rights report, a Revolutionary Court sentenced eight Facebook users to prison terms ranging from 11 to 21 years; two of the eight were also fined and sentenced to receive 50 lashes. The charges against them were “propaganda against the state,” “assembly and collusion against national security,” “blasphemy,” and insulting government officials and the supreme leader.[2]

    [2] 2014 Country Reports on Human Rights Practices - Iran", US Department of State, 25 June 2015, OG2B06FAF2

35. The most recent DFAT report outlines the use of the Internet is widespread, but highly censored. According to the government, nearly 50 million Iranians use the Internet. Authorities block or filter websites and social media applications they consider objectionable, although Iranians routinely use virtual private networks (VPNs) to circumvent these blocks. Facebook, for example, while blocked, is one of the most popular social media platforms in Iran. YouTube and Twitter are also banned, although, in the case of the latter, this only applies to the general population (the Supreme Leader and President Rouhani, among others, have Twitter accounts). Instagram, WhatsApp and Viber are permitted. Iranians are avid users of social media and mobile messaging applications. Use of Instagram is widespread and growing. Telegram, a mobile messaging and information-sharing application, was suspended temporarily in January 2018 and then blocked by judicial order in May 2018. Telegram, which is encrypted, had been used to coordinate demonstrators and share footage of unrest during the 2017-18 protests. The authorities claimed Telegram was being used to spread propaganda against the state, disrupt national unity and incite terrorist activities, and some of its administrators were charged and imprisoned on these grounds. Before it was banned, Telegram had over 40 million users. Iranians continue to access in large numbers Telegram and other blocked services with the use of VPNs. In response to countrywide protests and rioting, in November 2019 the government implemented a weeklong total Internet shutdown — the longest and most widespread Internet outage in Iran’s history.

36. DFAT then assesses that the authorities do not comprehensively monitor Iranians’ online activities. Individuals with a public profile (including with large social media followings, particularly on Instagram), who are politically active, advocate for greater human rights, have connections to foreigners and are otherwise perceived as threats to the Islamic Republic are more likely to have their social media monitored – and, concomitantly, face a higher risk of arrest or harassment – than other Iranians.

37. This assessment by DFAT in its 2020 country information report is critically undermines its other assessment that the authorities in Iran are not much bothered by social media activities of Iranians who are failed asylum seekers on the basis that, as far as it is aware, the authorities do not check the social media accounts of Iranians returning from abroad. DFAT’s assessments in this regard are not mutually supportive. It further indicates to the Tribunal the authorities in Iran are deeply concerned about online activities and its capacity to ferment dissent whether it occurs among Iranians in the community or offshore, although it cannot be always comprehensively vigilant.

38. The Tribunal further notes the information a 2015 Upper Tribunal decision from a United Kingdom case about internet activity in Iran.[3] The Upper Tribunal stated that online anti-regime activity claims, on the surface, do seem somewhat far-fetched; however, given the nature of the Iranian regime, including its sophisticated measures to monitor and police the internet as outlined in the same UK case cited above, it is possible. The decision stated

    It is absolutely clear that blogging and activities on Facebook are very common amongst Iranian citizens and it is very clear that the Iranian authorities are exceedingly twitchy about them. We cannot see why a person who would attract the authorities sufficiently to be interrogated and asked to give account of his conduct outside of Iran would not be asked what he had done on the internet. Such a person could not be expected to lie, partly because that is how the law is developed and partly because, as is illustrated in one of the examples given above, it is often quite easy to check up and expose such a person. We find that the act of returning someone creates a “pinch point” so that returnees are brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely that they will be asked about their internet activity and likely if they have any internet activity for that to be exposed and if it is less than flattering of the government to lead to a real risk of persecution. (Tribunal’s emphasis)

    [3] AB and Others (internet activity-state of evidence) Iran [2015] UKUT 2057 [52] /  type="1">

    In the applicant’s case, the Tribunal accepts there is a chance that is more than remote that his online activities will surface by investigating his [Social media 4] entries. They will be particularly agitated by the content which includes Salman Rushdie. After his fourth novel, The Satanic Verses (1988), Rushdie became the subject of several assassination attempts and death threats, including a fatwa calling for his death issued by Ruhollah Khomeini, the supreme leader of Iran. Numerous killings and bombings have been carried out by extremists who cite the book as motivation, sparking a debate about censorship and religiously motivated violence. On 12 August 2022, a man (non-fatally) stabbed Rushdie after rushing onto the stage where the novelist was scheduled to deliver a lecture at an event in New York in the United States of America.

    Although the applcaint does not have many subscribers to his [Social media 4] channel, this appears irrelevant to the authorities given the recent history of persecution of deportees and returnees with minute numbers of followers. Furthermore, the Tribunal cannot rule that further interrogations will uncover his applicant’s other more popular media accounts which also has atheistic and anti-government content.

    As a failed asylum seeker, the Tribunal accepts there is a real chance of the applicant’s stated views through easily accessible social media platforms that he is an atheist and an apostate from Shi’a Islam and that he propagates content which they will consider corrupting of regime’s Shi’a values. The Tribunal accepts the applicant has promoted anti-Islamic views and atheistic opinions which will  face a real chance by the authorities as being construed as being in opposition to the Islamic Republic of Iran and its state religion.  The Tribunal also accepts there is a real chance that these provocative opinions held by the applicant are sufficiently available and accessible that they will soon come to light and the applicant will be subject to adverse interest in the applicant by the authorities on arrival.

    In addition, the available country information indicates the applicant’s conduct on social media - that the Tribunal accepts reflects his personal convictions - will also be a significant factor in further investigating and detaining the applicant for anti-government or anti-Islamic activities or a combination of these motivations in a Western country. The country information strongly indicates that the current attitude of the Iranian regime towards actual or perceived dissenters has not soften in recent times and  that Iranians returning from abroad continue to be subjected considerable scrutiny and that this attitude is heightened when failed asylum seekers are from Western countries or have a strong Western non-conformist dress code, which given the applicant’s Western-style of dress and appearance at the hearing would be heightened in his case. Furthermore, there is a real chance the applicant will be charged for apostasy and/or blasphemy, held without bail and be subject to a considerable period of administrative detention.  

    The most recent DFAT report on Iran states that non-practicing Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. It further assesses atheists who are open about their non-beliefs face a moderate level of official and societal discrimination.  Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. The Tribunal notes that the earlier 2015 DFAT report stated that while DFAT is unaware of any recent charges of individuals for being atheists, it is legally possible for a person to be punished under the Penal Code for insulting the Prophet Muhammad or other prophets. In this case, the appclaint has publicised his atheism.

    Furthermore, the applcaint’s Kurdish ethnicity will contribute to further imputations about anti-government activities. In this regard, the Tribunal has given some weight to the DFAT assessment that, like other ethnic minorities, Kurds who are active politically are likely to attract adverse attention from the authorities.

    Cumulative Findings

    In light of the numbers of serious factors which the applicant will cumulatively encounter on arrival as a forced returnee, the Tribunal accepts that there is more than a remote chance that the Iranian authorities will perceive the applicant to be a failed asylum seeker or forced returnee.

    Based on the applicant’s circumstances, the Tribunal makes a further finding that it will be the applicant’s provocative anti-Islamic online activities which will surface on arrival, and which lead to the risks associated with being found to be an apostate from Shi’a Islam that that will be the most significant factor, leading to the applicant receiving adverse attention as a failed asylum seeker.  The Tribunal therefore finds that the applicant’s membership of a particular social group, namely as a failed asylum seeker from a Western country, to be the essential and significant motivation for the persecution feared pursuant to s 5J(4)(a) of the Act.

    Although the chances of being convicted for apostasy as an atheist are rare according to country information, country information does support that the chances of harm occurring during interrogation and administrative detention or through being convicted and punished for blasphemy or breaching some other anti-Islamic or national security law are substantial.  The Tribunal according finds that that real chance of this adverse attention as a failed asylum seeker on arrival in Iran will include physical mistreatment during interrogation on arrival, over an extended period of time during remand and through punishment, including lashings.

    The Tribunal therefore finds that there is more than a remote chance that the applicant will encounter serious harm, capable of amounting to persecution for the purposes of s 5J(4)(a) of the Act in the reasonably foreseeable future, should he return to Iran.

    The risk of persecution faced by the applicant arises at the point of his arrival in that country. Safe relocation within Iran is therefore not reasonably open to the applicant. As risk of persecution faced by the applicant comes from the Iranian state or its organs, the question of state protection does not arise.

    There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.

    The Tribunal accepts that in order to return to Iran, the applcaint would not return voluntarily. In such a situation, the Iranian authorities would have a reasonable suspicion that the applicant have sought asylum in Australia. The Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case examined in detail. The interest in the applicant will be heightened based on his Kurdish ethnicity, and by the considerable amount of time he has spent in Australia as a Western country.

    The available country information provides several examples of failed asylum seekers – including those who were involved in blogging- experiencing serious harm on arrival in Iran, including significant physical ill-treatment and long-term incarceration and the loss of liberty.

    Having regard to the country information, the Tribunal considers that it is possible that Iranian authorities will discover the applicant’s’ [Social media 4] account while detained as a failed asylum seeker or forced returnee.  The Tribunal also considers that there is a real chance that the Iranian authorities would be able to investigate and scrutinise the content of the applicant’s [Social media 4] account will upon his forced return to Iran in will lead his case to be examined in detail by one of the security agencies of Iran. Under robust interrogation, other social media activities have a real chance of coming to light which will escalate the likelihood and degree of persecution to be faced by the applicant. The Tribunal finds that there is a real chance that the anti-regime content of the applicant’s social media activities would attract violent and humiliating questioning and  a significant amount of time in custody and other significant maltreatment through interrogation.  The Tribunal finds that this treatment would amount to persecution as it is serious harm, involving a threat to life and liberty that it is systematic and discriminatory.  In view of the country information referred to above, the Tribunal is satisfied that there is the chance that the applicant may be of adverse interest to the Iranian authorities, even though he is not a high-profile influencer, blogger or activities holding conspicuous anti-government opinions, to be more than remote, far-fetched or insubstantial.

    Conclusions

    The Tribunal finds that the essential and significant reasons that the applicant’s real chance persecution in Iran is reason of the applicant’s membership of particular social group, namely, a failed asylum seeker from a Western country, for the purposes of s 5J(4)(a). In this regard, it is not required of the Tribunal to exhaustively examine the applicant’s additional claims to have a well-founded fear of persecution for other reasons mentioned under s 5J(1)(a), such as religion (or the lack therefor) or his political opinion, imputed or otherwise, if they were to return to the Islamic Republic of Iran.

    As the harm the applicant face is at the hands of the Iranian government and its security forces, the applicant will be unable to obtain protection by those authorities from the harm he faces.  The Tribunal is satisfied that the real chance of serious harm exists in the country as a whole and that safe relocation within Iran is therefore not reasonably open to the first applicant.

    For the reasons above, the Tribunal finds that the applicant has a well-founded fear of persecution for one of the five reasons mentioned under s 5J(1)(a), which Iranian authorities will consider being provocative and threatening to national security and/or blasphemously anti-Islamic, if he returns to Iran now or in the reasonably foreseeable future.

    Therefore, the Tribunal finds that the first applicant satisfies the criteria under sections 36(2)(a) and 5H(1) of the Act.

    Conclusion

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

    decision

    The Tribunal remits the following matters for reconsideration:

    · Matter 1824560 Protection (Temporary) visa application made on 26 March 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

    · Matter 2208291 (Safe Haven Enterprise) Protection visa application made on 17 September 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Brendan Darcy
    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.

    …