1825896 (Refugee)

[2022] AATA 5024

1825896 (Refugee) [2022] AATA 5024 (8 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Roger Yeboah

CASE NUMBERS:  1825896

2105264

COUNTRY OF REFERENCE:                   Iran

MEMBER:Brendan Darcy

DATE:8 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the following matters for reconsideration:

·Matter 1825896 Protection (Temporary) visa application made on 18 January 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

·Matter 2105264 Protection (Temporary) visa application made on 9 November 2020 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 08 December 2022 at 10:35am

CATCHWORDS

REFUGEE – Protection Visa – Iran – witness to the building of Iran’s ballistic missiles – sensitive defence information – past employment – particular social group – failed asylum seeker – more than a remote chance that the applicant will encounter serious harm – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 46, 65, 91,195A, 411, 499

Migration Regulations 1994, 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 decisions made by delegates of the Minister for Home Affairs who refused to grant the applicant rotection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On [date] February 2013, the applicant arrived in Australia at Ashmore Reef which is part of Australia’s Territory of Ashmore and Cartier Islands in the Indian Ocean. The applicant did so by boat and without any valid visa as an undocumented maritime arrival.

3. The applicant who claims to be a citizen of the Islamic Republic of Iran (Iran), applied for a Class XD Subclass 785 Temporary Protection visa (or TPV) on 18 January 2016. This visa application was refused on 15 August 2018.

4. 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) 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 TPV 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.

5. A valid application for review with the Tribunal was lodged on 5 September 2018. 

6. The applicant had previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 15 May 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 the Territory of Ashmore and Cartier Islands.

7. Therefore, the application for a Temporary Protection visa is not subject to the s 91K bar and the applicant made a valid application for review on 9 November 2020.

8. This second TPV application was refused on 22 April 2021 and a further valid application for review with the Tribunal was lodged on 24 April 2021. 

9. Separate delegates acting on behalf of the Minister refused to grant both protection 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 his secular or non-practising Muslim outlook, his political opinion, as a failed asylum seeker, or because of his previous access to sensitive and classified information as a defence contractor under sections 36(2)(a) and 36(2)(aa).

10. Under the circumstances, the Tribunal has constituted both of the applicant’s valid applications for review to this presiding Member.

11. The applicant appeared before the Tribunal on 3 October 2022 to give evidence and present arguments in relation to both review applications. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

12. The applicant was represented in relation to these combined reviews.

    Criteria for a protection visa

13. 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.

14. 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.

15. 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).

16. 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.

17. 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

18. 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

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

    Background

20. The applicant was born on [date], in Khuzestan Province, in south-western Iran.

21. Copies the applicant’s identity documents (with translations) indicate that he is a citizen of the Islamic Republic of Iran. This included his Iranian birth certificate (Shenasnameh), his national identity card and his national conscription completion card. Copies of these documents are to be found on the applicant’s Departmental [files]. 

22. The applicant claimed to have departed Iran legally via Tehran’s Imam Khomeini International Airport on [date] February 2013. He then flew to [Country 1] via [Country 2].

23. On [date] February 2013, the applciant arrived in Australia at Ashmore Reef which is part of Australia’s Territory of Ashmore and Cartier Islands in the Indian Ocean. The applicant did so by boat [and] without any valid visa as an undocumented irregular maritime arrival. The applicant’s Iranian passport was destroyed prior to entry into Australian territory. The applicant was then taken to Darwin and placed into immigration detention. The applicant was allocated the following [Boat ID].

24. On 1 March 2013, Australian officials interviewed the applciant. In that entry interview, the applicant mentioned his secular views and that he feared he was a person of interest to his former employers and managers at a [company] which was involved in military contracts.

25. On 14 May 2013, the Minister personally intervened under s 195A to permit the grant of visa to the applicant. On 15 May 2013, the applicant was granted a Class UJ Subclass 449 Temporary Humanitarian Stay visa which was valid until 22 May 2013. The applicant was released from detention in late 2013.

26. On 26 September 2014, the Minister intervened in the applicant’s matter under s 46A and s91L to lift the bar to permit the applicant to apply for bridging visas and a protection visa.

27. ON 17 April 2017, the applicant applied for Class XD Subclass 785 TPV. Subsequently the applicant was granted multiple associated bridging visas from 17 October 2017 onwards.

    Claims for protection attached to the applicant’s initial TPV application

28. The applicant provided a signed statement of claims dated 19 March 2017 with his submitted Form 886 and 80 forms. His statement of claims are summarised below: 

    ·     The applicant was born on [date] in Khuzestan, Iran, and is married with a [son]. The applicant’s family remain in Iran as he could not flee with them;

    ·     The applicant belonged to a family with strict moral standard, but it was strongly religious. The applicant became a non-believer and did not practice Islam throughout his life;

    ·     After graduating, the applicant worked for a [company] where he mastered [specified] techniques;

    ·     From 2008, the applicant was a professional and skilled [Occupation 1] and worked for two companies before finding a position at [Company 1];

    ·     [Company 1] was a well-structured company with an interesting salary package and other benefits;

    ·     Shortly after starting work, the applicant related that 80 per cent of the stage were Sepah (Iranian Revolutionary Guards Corps or IRGC) employees and 20 percent were civilians. The Sepah staff were bludgers who did not perform their jobs properly. When the applicant was non-compliant with religious practices and gatherings at the workplace this caused tensions and disputes between me and Sepah staff and managers;

    ·     The applicant became suspicious of the company’s operations when he was asked to [perform a specified task] and questioned what industry the company was making parts for;

    ·     In 2011, the applicant was promoted to the position of [manager]. This gave the applicant access to assembly plans. The applicant discovered they were making parts for [naval guns]. He later found out that [Company 1] was also affiliated to [a] importation business, which secretly imported metals and equipment for the Iranian arms industry;

    ·     The applicant’s conscience was troubled by this as he did not wish to become responsible for wars and bloodshed;

    ·     The applicant resigned from his position, although his employer tried to persuade him not to. His employer said that the Sepah employees will consider him ‘a burned icon’.  While the applicant was somewhat intimidated, he was confident of finding new work given his skills and experience;

    ·     After leaving [Company 1], Sepah began making threatening phone calls asking him to return to his job but he refused. Two months after his resignation, the authorities raided his home, searched his house and took his laptop. The applicant became fearful and relocated to [City 1] for six months and then returned to Tehran to look for work, hoping the dust had settled on the issue;

    ·     He found work at a small [workshop] but after five months, his employer let him go without providing an adequate explanation (The applicant stated his employer was under obvious pressure);

    ·     The applicant found work with another employer but for the second time after starting employment, he was given notice and then dismissed. The applicant was now certain Sepah had him under surveillance and was depriving him of an income, perhaps to push him towards returning to [Company 1];

    ·     He also experienced difficulties in filing for unemployment benefits with the national insurer which the applicant attributed to Sepah’s interference;

    ·     A serious incident of harm occurred two months before he made the decision to flee Iran. At around [time], he was walking home when two men approached the applicant and forced him into a parked car. Blindfolded and with hands bound, they drove the applicant for an hour before beating him viciously and asking him to identify people and names he had never heard of. They broke his teeth, nose and fractured his forehead. Throwing him out of the vehicle somewhere on [a] highway, he found someone to call his brother who took the applicant to a clinic for treatment later that night;

    ·     As the applicant has sensitive information about Sepah’s illegal activities and their production of military equipment, the authorities turned his life upside down after leaving [Company 1]. Fearing the next incident of intimidation would be worse, the applicant decided to flee Iran; and

    ·     Since leaving Iran, his wife has been questioned by Iran’s Ministry of Intelligence (Ettela’at) about his whereabouts and activities. His wife said to them she was thinking of a divorce as he has abandoned her and his son, and that she is no longer in contact with her husband.

29. The Tribunal also notes the applicant attended school between 1976 and 1989, and then completed a [degree] 1989 to 1996 at [University 1], Iran.

30. On 13 July 2018, the Department interviewed the applicant in which he provided further details about his background and the circumstances leading up to his departure. After his interview, the applicant submitted a certified copy and translated version of his Certificate of Payment of Insurance Premium showing the list of his employers.

31. On 15 August 2018, a delegate acting on behalf of the Minister refused to grant the applicant a TPV.

32. On 5 September 2018, the applicant applied for the refusal decision by the delegate to be reviewed by the Tribunal. The Tribunal notes the applicant lodged this application for review with the Tribunal after the Full Federal Court decision DBB16 v MIBP had been handed down, and was, therefore, not subject to ‘fast track reviewable decisions’ lodged with the Immigration Assessment Authority under s 5AA of the Act.

    Second protection visa application

33. On 6 August 2018, the Full Federal Court handed down the judgement in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. On 9 October 2020, the applicant was notified the impact of this court decision making the applicant’s previous (but otherwise not yet fully determined) visa application invalid. (It did not have the affect of making the applicant’s review application invalid).

34. The bar was lifted under s 91L a further time to allow the applicant to apply for a protection visa and on 9 November 2020, the applicant’s TPV was commenced, and he was granted an associated bridging visa on 18 November 2020.

35. The applicant submitted a statement of claims dated 5 November 2020 which were broadly consistent with the same claims he raised in his earlier statement of 19 March 2017.

36. On 22 March 2021, the applicant was interviewed in relation to this TPV application.

37. According to the decision record, at this interview, the applicant claimed that he converted to Christianity. He stated that he grew up a Muslim but when he came to Australia, he became secular. He later met a friend who introduced him to Christianity. When asked when he converted to Christianity, he said, ‘I believe in any religion, I love Buddhist, I’ll follow any religion that has some god for everyone. My religion is humanity.’ He has not converted officially. He claimed that his parents did not force him to observe Islamic practices. When asked when he started having secular views, he said, ‘Secular means I believe all religions. I was at the university, and I read so many books. All religion shows god and you have to be a good person.’ He stopped observing Islamic practices when he was 18 years old.

38. His wife and son are located in Tehran. His son is studying [at] the university. He is in contact with them every day, sends financial support and his relationship with his wife is continuing. His wife is a [Occupation 2].

39. He also claimed his sister, who worked at [a workplace], assisted him to circumvent normal procedures to depart Iran to avoid any exit ban on him.

40. A delegate refused to grant the applciant a TPV on 22 April 2021.

41. The applicant validly applied to have that refusal decision reviewed by the Tribunal on 24 April 2021.

    Evidence provided to the Tribunal

42. As mentioned above, the applicant attended a scheduled hearing on 17 October 2022, to provide evidence and present arguments as to the reasons he is owed Australia’s protection obligations. At the end of the hearing, the applicant was provided with a further opportunity to provide submissions, and to do by the 7 November 2022.

43. After an extension of time was granted, the representative submitted a legal submission on 21 November 2022. Attached was a signed letter dated 4 November 2022 from a [manager] from an Iranian [company] stating the applicant’s sister has a been employed by [a] company in Iran in [specified area] between 2005 and 2016.

44. There are no non-disclosure certificates attached to either the applicant’s Departmental or Tribunal files.

    ASSESSMENT OF CLAIMS AND FINDINGS

45. On the basis of copies of the applicant’s 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

46. There is no evidence before the Tribunal 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 credibility findings

47. Based on the submitted material and the applicant’s oral evidence outlined at the scheduled hearing, the Tribunal accepts the applciant was born in Khuzestan Province in Iran in [year], as claimed. It accepts that the applicant is Persian by ethnicity, and that he speaks, reads and writes in Persian. It accepts that the applicant’s father was a [former] officer and veteran of the Iran-Iraq war and that is parents reside in Teheran and received pensions. It is accepted the applicant has [number of siblings]. It is further accepted that he is an [Discipline 1] graduate and that he undertook military conscription [when] he was in his [age range], as claimed. Furthermore, it is accepted that the applicant is married and has one child, and that both of them continue to reside in Iran.

48. It is also accepted that the applicant was brought up as a Shia Muslim but considers his religious outlook as ‘secular’.

1. More relevantly to the applicant’s dispositive claims are that he was employed by [a company], interchangeably called [name] and [Company 1] in which the IRGC through an entity called [name], was a substantial shareholder. The applicant claimed he worked first as a [Occupation 1] and then in a supervisory [role]. While in this supervisory role, the applicant had access to blueprints, and he gradually became more aware that the [Company 1]’s [work] involved making parts for [naval guns]. More disturbingly, the applicant claimed that [Company 1] was importing military-grade or high-grade titanium, which he obverse to have been smuggled in boxes with imported [goods]. [Company 1] had been contracted to use the titanium to build components of [missiles], claimed the applicant, and this further troubled his conscience. This, the applicant has claimed, made his employment at [Company 1] morally untenable and he resigned in 2012.

2. He claimed that after he resigned, he was severely harassed out of working for other employees and that he churned through a number of positions with different employers because the IRGC had intimidated the employers into leaving employment. He further added that his unemployment benefits through the national insurance company was also stymied by the authorities to punish him. This harassment escalated into an episode where the applicant was abducted and beaten, leading to his decision to depart Iran for Australia.

3. The Tribunal notes that the delegates’ decisions placed considerable adverse credible weight on the limited claims advanced by the applicant in the entry interview soon after his arrival as an unauthorised maritime arrival. Through an interpreter in the Persian and English languages, the applicant stated [Company 1] was involved in making [equipment] and were not paying him or unpaying him and was later dismissed from employment for being outspoken about his secular views. This contrast with his later written and oral claims that he resigned from [Company 1]. He explained to the Department he does not understand why he indicated being dismissed when he voluntarily resigned.

4. Similarly, the applicant has provided differing employment periods with [Company 1]. At the entry interview it was between 2006 and 2009; in one of the protection visa applications it was between 2008 and 2012. The applciant claimed at the hearing, the period of employment with [Company 1] was 2008 and 2012.

5. The Tribunal notes that the purpose of entry interviews from unauthorised maritime arrivals, including the interview pertaining to this applicant, is to gather information about smuggling networks, basic bio-data information and a general but not a detailed and accurate set of reasons for seeking Australia’s protection obligations. The applicant maintained this during the Tribunal’s hearing and in previous interviews with the Department that did not know why he said that or remember stating a different account to the one in his written statements. The Tribunal also notes that the applicant had not made explicit claims about holding atheistic views, yet one of the decision records states it is a claim he had advanced. When the Tribunal asked about this, he was adamant that he has never claimed to be an atheist and that there had been difficulties with the interpreting.

6. The Tribunal finds that the reliability of protection claims recorded in an entry interview for unauthorised maritime arrivals, who have no legal representation, is generally poor and without adequate procedural fairness. It would be unfair to the applicant to overly rely on his entry interview to identify inconsistencies. The Tribunal also accepts, having examined his overall claims, that he had not claimed to be an atheist but to be someone who rejected Shi’a Islam as enforced in Iran and made generally comments whereby he self-identified a stance or outlook of spirituality that does not regard organised religion as a the sole or most valuable means of furthering spiritual growth.

7. The Tribunal enquired into the meaning of the unusual phrase ‘burnt icon’ mentioned in the second decision record. The applicant claimed he did not know its meaning and that he did not mention such a phrase. He attributed it the poor interpreting in the departmental interview. On balance, the Tribunal accepts this to be a reasonable explanation and does not place any weight on the ‘burnt icon’ phrase as relevant to this decision.

8. The Tribunal assesses that the applicant has provided a consistent account about his employment with [Company 1] was between 2008 and 2012.

9. The Tribunal has considered the applicant’s claims about [Company 1] and the IRCG were manufacturing components of contributing to the Bofors Naval Guns and Shahab-3 missiles, which troubled his conscience.

10. Publicly available information indicates Bofors Naval Guns is a multi-purpose autocannon developed by the Swedish arms manufacturer AB Bofors (today BAE Systems Bofors). Wired online magazine reported that Iran has started to mass-produce a new 40mm automatic cannon capable of shooting down cruise missiles, according to the semi-official Fars News Agency. The announcement said that the cannon, known as Fath ("Victory"), has a range of 12 kilometres and fires 300 rounds a minute. Reportedly the performance is identical to the Bofors 40mm Sea Trinity, which an updated version of the original Bofors Gun. Modern 40mm guns are capable of shooting down cruise missiles and knocking down sea-skimming anti-ship missiles, thanks to radar, computer and advanced ammunition.[1]

    [1] Iran’s ‘New’ Anti-Missle Artillery, by David Hambling, Wired, 27 May 2009, >

    This country information would seem to indicate that around the time of the applicant’s employment, the Iranian armed forces were not manufacturing components of Borfos autocannon under contract by BAE but of Borfors-like autocannons for its navy, as claimed by the applicant. The Tribunal finds he was using Borfos gun weaponry interchangeably with Iran manufactured Fath guns. It was put to the applicant that given such weaponry is defensive it would not seem to be something that would trouble a son of an [officer], such as himself. The applicant responded that it contributed to the Islamic Republic’s offshore adventurous wars which he opposed. 

11. On balance, the Tribunal accepts the applicant’s claims that he was involved with a contracting firm to manufacture components of Iran’s defensive weapons systems for its navy, and that such work would entail a strong degree of secrecy given Iran’s national security sensitivities.

12. Publicly available information indicates that Iranian Shahab-3 is a medium range ballistic missile (MRBM) with a range of about 1300 kilometres. In 2019, the US Defence Intelligence Agency described the Shahab 3 as "the mainstay of Iran’s MRBM force". US Air Force National Air and Space Intelligence Center estimates that as of June 2017, fewer than 50 launchers were operationally deployed.[2]

    [2] Shahab-3 - Wikipedia

13. The Tribunal has considered the credibility of the applicant’s claim about being witness to the building of Iran’s ballistic missiles in the context of the Islamic Republic of Iran being subject to international sanction laws, which are applicable to member states - including Australia, and other country information.

14. Australia implements United Nations Security Council (UNSC) sanctions by incorporating them into Australian law. In addition, Australia imposes autonomous sanctions in relation to Iran, which complement the UNSC sanctions. Between 2006 and 2010, the United Nations Security Council (UNSC) passed five resolutions imposing sanctions in relation to Iran in response to Iran’s refusal to suspend its uranium enrichment program. On 20 July 2015, the UNSC adopted Resolution 2231, which endorsed the Joint Comprehensive Plan of Action (JCPOA). The Resolution took effect on 16 January 2016. Under the Resolution, previous sanctions were terminated but measures that restrict certain activities were imposed.[3]

    [3] Snapshot: Iran Sanctions Regime, Australia’s Department of Foreign Affairs & Trade, Microsoft Word - Snapshot - Iran (UNSC & Autonomous) - August 2019.DOCX (dfat.gov.au)

15. Under Australian law, it is prohibited to supply, sell or transfer to Iran, directly or indirectly arms or related materiel; certain items which the UNSC or Australia’s Minister for Foreign Affairs have determined could contribute to activities inconsistent with the JCPOA, including items on the control lists issued by the Nuclear Suppliers Group, the Missile Technology Control Regime and the Australia Group Common Control Lists; and certain kinds of graphite, raw metals, semi-finished metals, and software for integrating industrial processes.

16. Shahab-3 missiles have been subject to commentary whereby they contribute to regional instability as they are believed to be capable of carrying nuclear warheads and violating sanctions. The Times of Israel reported on 26 July 2019 regarding Shahab-3 tests that took place in July 2019 occurred after Trump Administration pulled out of the JCPAO. The report further stated:

    In pulling out of the deal, Trump in part faulted the accord for not addressing Iran’s ballistic missile program. The US fears Iran could use its missile technology and space program to build nuclear-capable intercontinental ballistic missiles, something Tehran denies it wants to do.

    However, a UN Security Council resolution was passed at the time of the deal’s signing prohibiting Iran from testing ballistic missiles capable of carrying nuclear warheads. The Shahab-3 is widely believed to be capable of delivering a nuclear warhead. [4]

    [4] In fresh challenge, defiant Iran tests medium-range missile – report, The Times of Israel, by ToI staff, 26 July 2019, >

    Iran’s July 2019 MRBM testing occurred after inspectors of the International Atomic Energy Agency, on 8 July 2019, “verified that Iran is enriching uranium above 3.67 percent U-235,”.  The IAEA said in a statement, hours after Tehran said it had exceeded the agreed cap and reached 4.5% enrichment in response to the United States withdrawing from the deal.[5]

    [5] Nuclear watchdog confirms Iran breached uranium enrichment cap, Times of Israel, by ToI staff, 8 July 2019, >

    The applicant claimed that the smuggled high-grade titanium through [cargo], breached those sanctions to prohibit the transfer of arms related materiel. High grade titanium is an expensive alloy to manufacture and is valued because of its strength and endurance and is often employed in aerospace projects and medical implants.[6]

    [6] What Makes Titanium Expensive? Australian General Engineering, 12 August 2022, >

    The Tribunal has been able to locate country information that Iran’s first titanium processing plant was brought online in 2016, with a capacity to produce 130,000 tonnes of titanium dioxide concentrate and 70,000 tonnes of titanium dioxide slag per year. The operation of the Kahnuj plant put Iran in the league of a few countries which produce titanium. In June 2020, a heavy mineral sands prospect in Qara-Aghaj near Urmia, estimated to hold 120 million tonnes of titanium-bearing ores, was brought on stream. This country information is supportive of the applicant’s claim that high grade titanium was not being manufactured in Iran at the time of the applicant’s employment with [Company 1] between 2008 and 2012, which contributes to the plausibility of his claim that it would have to be imported.

17. The overall impact of this country information appears to be supportive that the high-grade titanium was likely subjected to international sanctions. In accepting the applicant worked at [Company 1] and that it was part of the network of the IRGC’s conglomeration in a wide range of industries, including civilian industries, the Tribunal has provided the applicant with the benefit of the doubt and accepts that he had been a witness of breaches of UNSC sanctions regime against Iran’s nuclear weapons progress. Furthermore, it accepts the applicant voluntarily departed his employment for [Company 1] on the basis that he was troubled by his involvement in such a company and the IRCG’s wider military-industrial conglomerates which contribute to Iran’s international isolation and regional instability more generally.

18. It is less plausible and less persuasive to the Tribunal that the applicant was subsequently harassed by the military intelligence for leaving his employment in [Company 1]. The applciant was not able to provide a persuasive reason as to why the applicant was a person of interest to the authorities when he went to work for alternative employers or that the reasons they would monitor, abduct and severely beat the applicant to the point he was hospitalised and endured facial and dental injuries. There was no suggestion in his claims that he threatened to play a whistleblowing role to anyone in the media or to a foreign interest. Furthermore, had the applicant been such a person of interest to the authorities because of his knowledge of sensitive and secret military information or information about breaches of international sanctions, it would be reasonable that the authorities would prevent his departure from Iran altogether. Indeed, it was open to the authorities to force his return to work at [Company 1] or to arrest and detain him under national security pretexts. Instead, the applicant departed Iran through Tehran’s international airport on his own passport with his own identity and without any difficulties. Country information indicates that Sepah imposes and oversees exits bans on persons of adverse interest at international airports. Had the applicant held an adverse profile on national security grounds, it is likely the applicant would not have been issued with a passport.

19. The applicant has provided an explanation that his sister, as an employee of a private [company], arranged for the applicant to circumvent security checks used by private companies. He explained that his sister took his passport to obtain the necessary exit stamps on his behalf. The applicant recounted this explanation at the scheduled hearing, but he was not able to explain how his name would not be checked against the manifest as departees embarked onto the flight. The country information indicates that the Iranian authorities take security checks of departing Iranians on international flights very seriously. The Tribunal has received a letter from the applicant’s sister about her past [employment]. The letter indicates his sister worked in [specified area] and not in assisting the boarding of travellers on international flights. The Tribunal finds that that applicant did not depart Iran in any irregular manner to evade the authorities’ exit ban and that he was not a person of interest at the time of his departure in 2012. It does not accept the applicant’s sister played any role in his departure, as claimed, and that the applicant advanced this specific claim to augment his otherwise credible role as a witness to sensitive defence information. The Tribunal also notes that the applicant’s first set of written claims did not mention having any difficulties exiting Iran at that airport or that he circumvented an exit ban or in the initial interview with the Department in July 2018. 

20. The Tribunal accepts the applicant was injured in a manner that led to his hospitalisation and that involved a cracked forehead, a broken nose and broken teeth. It is concerned the applicant may have acquired brain injuries and the presiding Member suggested to the applicant to have himself examined. Nonetheless, it follows from the finding above that it does not accept the authorities were responsible for these injuries as the Tribunal does not accept the applicant was a person of interest for the reasons claimed.

21. Nor is it accepted that the applicant’s wife back in Iran was approached by the authorities to find information about the whereabouts of the applicant six months after his departure from Iran or at any other time after his departure.

22. Notwithstanding any adverse credibility findings about specific claims, the Tribunal is cognisant that the core critical claims are an unusual and far-fetched set of claims. Nonetheless, even embellished and/or implausible claims can be credible when assessed against available country information. On balance, the core of the applicant’s dispositive claims is found to be credible. It is accepted that he was involved with a contracting firm to manufacture components of Iran’s defensive weapons systems for its navy and ballistic missile programme and that such work would entail a strong degree of secrecy given Iran’s national security sensitivities. A report by Iran Wire states about the IRGC’s conglomerate, Khatam-al-Anbiya:

    According to Khatam-al-Anbiya officials, it provides employment for 170,000 people, including 30,000 full-time staff and it has around one million independent contractors who work with it. Currently, it will not accept projects that are less than one trillion Iranian rials and has 5,000 contracts with private companies. The managers claim that they have executed more than 2,500 construction and infrastructure projects…

    The only agency that can monitor the activities inside the headquarters is the IRGC Intelligence Protection Agency (Sazeman-e Hefazat-e Etela’at-e Sepah).[7]

    [7] 'The IRGC Commercial and Financial Institutions: Khatam-al-Anbiya Construction Headquarters', IranWire, 10 April 2019, 20191108152821

23. With such a large workforce and given the applicant’s educational and technical background, the Tribunal does not find it implausible or fantastic that he worked for an entity meshed in the IRGC’s conglomerate as has been described by the applicant.

24. It also finds it plausible that the applicant did encounter Sepah personnel receiving wages for little work. Country information indicates that IRGC veterans are often employed by the conglomerate for services rendered to the Supreme Leader. It accepts also the applicant encountered some hostility but not violence, when he expressed unorthodox opinions about Shi’a Islam to Sepah employees, which may have been interpreted as disrespectful or suspicious. 

25. Having made these findings, the question before the Tribunal is whether the applicant, as a failed asylum seeker or forced returnee, will face a real chance of serious harm based on his past employment and his witness to sensitive and secret information.

    Failed Asylum Seeker/Forced Returnee

26. 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.

27. In this decision, the Tribunal has confined its finding to the applicant’s dispositive claims that he 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 from a Western country, cumulatively considered, should he be returned to Iran.

28. 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 applicant’s claims, 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.

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

30. 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 assisting Western intelligence agencies, which will led to a real chance of serious harm.

1. 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.

2. When cumulatively considering the applicant’s circumstances as a failed asylum seeker or forced returnee in the context of the country information referred to above, the Tribunal is satisfied that there is the chance that the applicant will be of adverse interest to the Iranian authorities, even though his past access to sensitive defence materiel in the past was not deep, his conspicuous length of time in a Western country, to be more than remote, far-fetched or fanciful.

3. Based on the applicant’s accepted circumstances, the Tribunal makes a further finding that it will be the applicant’s former employment in Iran’s military-industrial conglomerate and his past, albeit limited access to defence materiel which are likely to be linked with breaches of international sanctions, which will surface on arrival. This, in turn, will lead to the risks, in the mind of the Iranian authorities that the applicant, as a failed asylum seeker, has been a Western asset who has shared sensitive information with Western intelligence agencies or is a Western asset who will gather further information on behalf of Western intelligence agencies.

4. The current and heightened paranoia among Iranian authorities has been a determinative factor in reaching this decision.

5. Imperial influence in Iran during the nineteenth and twentieth centuries has been critical in developing a paranoid style of politics in Iran. Ervand Abrahamian’s 1993 essay on the Islamic Republic stated:[8]

   In the eyes of not only Iranians but also other Europeans, Russia and Britain had in effect incorporated Iran into their empires. It was their diplomats who ruled the country; the shah served as a "mere viceroy." By the second half of the century, the Qajar shahs could not even designate their successors without the explicit approval of the two imperial representatives.

   Imperial influence was also present in Iran's three military coups: in 1908, 1921, and 1953. In the first, the Cossack Brigade led by its Tsarist officers bombarded the newly established Parliament in an attempt to shore up the faltering Qajar monarchy.

   In the second, British officers helped Colonel Reza Khan of the same Cossack Brigade to overthrow the government, paving the way for the demise of the Qajar dynasty and the birth of the Pahlavi state.

   In the third, the CIA, together with Britain's MI6, financed army officers to overthrow a popular prime minister and salvage the Pahlavi throne. These traumatic events naturally led Iranians to conclude that whatever took place in their country was decided by the imperial powers.

   This feeling of alienation was further intensified by the wide gap existing between state and civil society -- in Persian terms, between the dawlat (government) and mellat (nation); the mamlekat (realm) and ummat (community); the darbar (court) and vatan (country); the hokumat (regime) and mardom (people).

   The imperial powers sought local clients, and the elite in turn sought foreign patrons, even foreign citizenship. Ordinary citizens, thus, understandably came to the conclusion that public figures harbored alien "ties" and "connections." In the words of a typical Iranian historian: "The imperial powers interfered in everything, even the personal affairs of leading statesmen. Absolutely nothing could be done without their permission."

   [8] Khomeinism: Essays on the Islamic Republic, by Evrand Abrahamian, UCP Press, 1993; Accessible version of essay: The Paranoid Style in Iranian Politics - Tehran Bureau | FRONTLINE | PBS; further reading: Including Kermit Roosevelt Jr >

   The essayist states that the paranoid style had far-reaching consequences for the Islamic Republic.

   The paranoid style, thus, paved the way for the mass executions of 1981-82. When in June 1981 the Mojahedin tried to overthrow the Islamic Republic, Khomeini proclaimed that the CIA was planning a repeat performance of 1953 and that the whole opposition, not just the Mojahedin, was implicated in this grand "international plot." In six short weeks, the Islamic Republic shot over one thousand prisoners. The victims included not only members of the Mojahedin but also royalists, Bahais, Jews, Kurds, Baluchis, Arabs, Qashqayis, Turkomans, National Frontists, Maoists, anti-Stalinist Marxists, and even apolitical teenage girls who happened to be in the wrong street at the wrong time. Never before in Iran had firing squads executed so many in so short a time over so flimsy an accusation. Real fears had merged with unreal ones. The paranoid style had produced tragedy as well as comedy.

6. The Doha Institute published on 15 March 2022 an analysis by Sanam Valils’s lecture, Politics, Paranoia and Pride: Iranian Security Policy under President Raisi.[9]  Vakil described the worldviews of Iran’s conservatives in general. “I see a mix of nationalism and paranoia as very much coming together in how Iran engages in the international and regional domains.” Vakil stated that Iran sees its regional activities as defensive, while regional states see Iran’s activities as aggressive. With the nuclear talks in Vienna being inconclusive, Saudi Arabia, the UAE, and Israel are concerned about regional security both with and without the JCPOA. Describing Iran’s foreign policy, Vakil observed that the primary objective of the state has been to protect the security of the Islamic Republic, and the primary perceived threats are the involvement of the US in the region, and Israel. Therefore, the goal of the Islamic Republic has been to reduce the role of the US in the region. Iran has employed forward defence to achieve strategic depth in order to push its perceived threats away from its borders, and towards other arenas such as the borders of Israel. Recently, it has sought to use the Houthis to push its strategic objectives to the borders of Saudi Arabia. This has been seen as an effective strategy in Tehran. The Islamic Republic has tried other strategies, such as signing the JCPOA, only to have it replaced by Trump’s maximum pressure campaign. Trump’s Iran’s policy was seen as economic warfare, cementing Tehran’s worldview that goodwill does not beget goodwill.

   [9] Politics, Paranoia and Pride: Iranian Security Policy under President Raisi, Doha Institute, 15 March 2022, >

   Since November 2019, a series of protests have broken out throughout Iran after a reduction in petrol subsidies. Large-scale protests and rioting occurred in 100 cities and towns across 29 of Iran’s 31 provinces. According to the Interior Ministry, at least 200,000 people took part, most of whom – like in 2017-18 – were working-class. Protests and rioting were most intense in Khuzestan, Kermanshah, Kurdistan and Tehran provinces. In January 2020, low-level protests occurred in Tehran and other cities (including Shiraz, Isfahan, Hamedan, Orumiyeh and Rasht) following Iran’s admission that it mistakenly shot down a Ukrainian civilian airliner over Tehran (176 people were on-board, all of whom died. Most were Iranian). Iran initially denied responsibility. Protesters chanted anti-government slogans and called for the resignation of the Supreme Leader over the incident and subsequent cover-up. In July 2021, protest broke out in Khuzestan due to worsening water shortages. In September 2012, massive rallies protested the deteriorating economic situation in Iran. Between September 2022 and writing this decision, an ongoing series of protests and civil unrest against the government of Iran began in Tehran on 16 September 2022 as a reaction to the death of 22-year-old Mahsa Amini who had been arrested by the Guidance Patrol for wearing an "improper" hijab — in violation of Iran's mandatory hijab law — while visiting Tehran from Saqqez. According to eyewitnesses, Amini had been severely beaten by Guidance Patrol officers, an assertion denied by Iranian authorities.

7. It has been the authorities’ response to all these rolling incidents of unrest to attribute responsibility to foreign interference. On 26 September 2002, the Iranian Foreign Minister Amir-Abdollahian said the United States was supporting 'rioters' and seeking to destabilise Iran, a stance he said contradicted by American calls for stability in the region and for a nuclear deal with Tehran. Iran's foreign ministry summoned Britain's ambassador in response to the "hostile character" of London-based Persian language media. Britain's foreign ministry said it championed media freedom and condemned Iran's "crackdown on protesters, journalists and internet freedom". Norway's envoy was also summoned to explain the "interventionist stance" of its parliament speaker Masud Gharahkhani, who has expressed support for the protesters.[10]

   [10] >

   In November 2022, Iran’s Revolutionary Guards chief Hossein Salami warned Riyadh to control media outlets it sees as under Saudi influence. “I am warning the Saudi ruling family … Watch your behaviour and control these media … otherwise you will pay the price. This is our last warning because you are interfering in our state matters through these media. We told you, be careful,” Salami said, according to Iranian state media. Salami also accused leaders of Saudi Arabia of dependence on Israel.[11]

   [11] Iran says report about Iranian threats against Saudi Arabia a ‘baseless accusations; by Tuqa Khalid, Al Arabiya English, 2 November 2022, >

   Iran is a locus of international espionage and intrigue which contributes to the paranoia among the authorities, especially the IRGC. Between 2010 and 2012, four Iranian nuclear scientists (Masoud Alimohammadi, Majid Shahriari, Darioush Rezaeinejad and Mostafa Ahmadi Roshan) were assassinated, while another (Fereydoon Abbasi) was wounded in an attempted murder. In November 2020, another scientist (Mohsen Fakhrizadeh) was assassinated. In 2011 and 2012, Iranian authorities arrested a number of Iranians alleged to have carried out the assassination campaign on behalf of Mossad (the Israeli intelligence service). Western intelligence services and U.S. officials reportedly confirmed the Israeli connection.[12] The Iranian government accused Israel of complicity in the killings. In 2011 and 2012, Iranian authorities arrested a number of Iranians alleged to have carried out the assassination campaign on behalf of Mossad (the Israeli intelligence service). Western intelligence services and U.S. officials reportedly confirmed the Israeli connection.

   [12] Assassinations of Iranian nuclear scientists, Wikipedia, >

   Few commentators expect the Iranian regime to collapse under the combined weight of international sanctions, regional intrigue, civil unrest and economic stagnation.

8. What is relevant is whether this paranoid style or behaviour of the IRGC extends to failed asylum seekers forced to repatriate by the authorities from a Western country and whether the applicant’s a history of working in the defence sector heightens his risk of persecution. The Tribunal accepts the applciant, on arrival as a forced returnee, will encounter officials who are hypervigilant against foreign interference, preoccupied with hidden motives and hold fears of being taken advantage of by compatriots who have tried to seek asylum in Western countries. It is noted that the Aviation Protection Organization was established on December 26, 1984, by the order of Ayatollah Ruhollah Khomeini, and emphasized the importance of the presence of the IRGC in airports and on airplanes to guarantee the safety of flights and prevent any airplane hijackings. Second Brigadier General Safar-Ali Mousavi has been the head of the organization since 2014. The organization has units in 63 airports across Iran and works with 15 airlines.[13]

   [13] The IRGC Security and Intelligence Agencies, Iranwire, 9 April 2019, >

   In this regard, the Tribunal notes that the 21 March 2022, the UK’s Upper Tribunal guidance decision (IA/00676/2020) mentions that returnees on arrival are under close scrutiny and the authorities adopt a ‘hair-trigger scrutiny towards Kurdish returnees. By hair-trigger, the Upper Tribunal meant that the threshold of suspicion is low, and the reaction of the authorities is reasonably likely to be extreme.

9. Should the applicant simply have returned to the community without being processed and vetted as a forced returnee, the applicant only has a remote chance of being harmed. The risk of persecution faced by the applicant arises at ‘the pinch point’ of his arrival in that country. In order to return to Iran, the applicant would not return voluntarily. In such a situation, the Iranian authorities would have a reasonable suspicion that the applicant had sought asylum in Australia and their suspicions of the applicant will be heightened based on the considerable amount of time he has spent in Australia as a Western country.

10. 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.

11. It is the Tribunal’s assessment of the available country information that it does support that the chances of serious harm occurring during interrogation and administrative detention based on national security risks, and the chances are substantial for failed asylum seekers with a direct or indirect connection with the IRGC’s military conglomeration. The Tribunal according finds that that real chance of this adverse attention as a failed asylum seeker on arrival in Iran will include significant physical mistreatment during interrogation on arrival and during an extended period of time in custody where conditions are cruel and inhuman.

100.   DFAT states that prison conditions are widely considered to be poor. Human rights observers report that, because of overcrowding, some prisoners sleep on floors, in hallways or prison yards (according to some reports, the prison population is nearly 28 per cent higher than its official capacity). Amnesty International claims prisoners receive insufficient food. Medical facilities are basic, and prisoners are often reportedly denied medical treatment for pre-existing conditions, injuries suffered at the hands of prison authorities or fellow prisoners, and for illnesses caused by poor sanitary conditions. There are reports of medical care being withheld for political prisoners as a form of punishment and as a means of extracting confessions, and of political prisoners being held with the general population (placing them, in turn, at higher risk of violence from other prisoners).

101.   The real chances of the applcaint facing serious harm through loss of liberty further arises should he be actually charged with national security breaches. DFAT assesses that defendants charged with national security offences may spend long periods of detention without charge and are unlikely to receive a fair trial. In June 2018, the head of the judiciary implemented the Note to Article 48 of the Code of Criminal Procedure. This denies individuals (facing national security charges) the right to access a lawyer of their choosing. Defendants must instead select from a list of 20 lawyers approved by the head of the judiciary. The list is made public and the judge has the right to reject a lawyer. A planned amendment to the Note to Article 48 could deny individuals arrested on national security charges access to a lawyer for 20 days, which could be extended to cover the entire investigation phase. In August 2019, the head of the judiciary announced a review into Article 48. The status of the law was unclear at the time of publication, and there was wide public criticism regarding the planned amendment.

102.   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 the Islamic Republic of Iran.

103.   As the risk of persecution faced by the applicant comes from the Iranian state or its organs, the question of state protection does not arise. Safe relocation within Iran is therefore not reasonably open to the applicant.

Conclusions

104.   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 thereof) or his political opinion, imputed or otherwise, if they were to return to the Islamic Republic of Iran.

105.   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.

106.   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), as threatening or hostile to Iran’s national security at time of strident international tensions, if he returns to Iran now or in the reasonably foreseeable future.

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

108.   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.

decision

109.   The Tribunal remits the following matters for reconsideration:

· Matter 1825896 Protection (Temporary) visa application made on 18 January 2016 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

· Matter 2105264 Protection (Temporary) visa application made on 9 November 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.

…