1827027 (Refugee)

1827027 (Refugee) [2022] AATA 2613 (21 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kourosh Momeni (MARN: 0955242)
CASE NUMBER:  1827027
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:21 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 June 2022 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – Iran – ethnicity and imputed political opinion – stateless Faili Kurd – education, work and community discrimination – religion – convert to Christianity in Australia – social media activity – returned failed asylum seeker – credibility – not stateless but Iranian citizen – inconsistencies between information in documents – claimed conversion after protection visa refused – limited knowledge and activity – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(6), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 4 May 2016.
The applicant appeared before the Tribunal on 17 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The following statement was made by the applicant on 19 May 2012 as part of his protection visa application:
I am Stateless. I do not have a right to citizenship or a right to reside in any other country. I am Faili Kurd and a Shia Muslim. I was born on [Date] in Dazfool, Iran. I left Iran because of the treatment we experienced as Faili Kurds in Iran.
As a Faili Kurd I don't have any Identity documents. My father had a green card. When it was cancelled a few years ago, he tried to get a white card. To this day he has not been able to receive a white card. As I understand it, without that white card, he cannot even apply for Iranian citizenship.
As a result of having no Identity document I don't have a right to work in Iran. All our work was done illegally. When I was working as a day labourer, I would go to a particular square to wait for someone to come and take us for a job. As a Faili Kurd I would not get paid as much as an Iranian person. Normally and Iranian person would get paid 8,000 toman per day but they would pay us only 5,000. I was also given the most work.
As a Faili Kurd I had no right to complain about the low pay. If I complained I would not get any work at all, and because everyone in my family all had the same problem, we couldn't afford not to work. As a Faili Kurd we also have very limited right to study. We had a right to go to primary school, but at the beginning of each year we had to wait for a few months to ensure that all the Iranian children had enrolled. Then if there were any leftover places, and if we had permission from the State governor to go to school.
In any case, when I was [age] I left school because it was clear to me that my father, although he was a very hard worker, was unable to make enough money for us to be able to feed us all. My father had a street stall where he would sell goods. When he was selling his goods the Police would regularly come and confiscate all his goods and insult him.
As children we were often hungry. Sometimes my father didn't even have enough money to buy us bread. We also had to move often. We were not legally allowed to own a house and so we had to rent. Landlords would take advantage of us and put the rent up to exorbitant levels so that we could not stay. Also we could not register a car in our own names. If we wanted to own a car, which we could not afford anyway, I would have to register it in the name of an Iranian friend.
We also could not register our marriages or the birth of our children. I was in love with an Iranian girl. Her name is [Ms A]. We had been in a relationship for the past two years. Her family used to live two streets away. I had a friend who lived in her street. I used to go visit my friend and that is how I met [Ms A]. At first we became friends. In Iranian culture, boys and girls are not allowed to go out together, so most of our relationship developed on the telephone. Sometimes we would talk all night. We fell in love. She wanted me to go and ask her parents for her hand in marriage.
I felt that there was no point in doing this, but because I really loved her, I did approach her father. My father is a very religious man and first I had to convince him and my mother to accompany me. We went to their house. [Ms A]'s parents asked us many questions, like what do you have? What do you own? I said I have nothing. I'm a Faili Kurd. Her father asked me lots of questions about my prospects for the future. He didn't say outright that I couldn't marry her because I was Faili Kurd but that was at the bottom of his refusal. In any case in Iran if a Faili Kurd man marries an Iranian woman the marriage is not registered. As a result whenever we went out together, if we were approached by the Basij or other authorities, we would not be able to prove our marriage and therefore we were constantly exposed to the danger of being detained for immoral behaviour. More importantly, any children we have would also not be registered and be condemned to live the same stateless life as I had. I do not want this for my children.
[Ms A]'s parents have now arranged for her to marry someone else. The problem of not having any documentation did not relate only to my future wife. I meant that I was afraid to go out with my sister or mother as well. I have never gone out with one of them by themselves. Whenever we go out we go out as a family, but once my brother and sister did go out for a walk. They were detained by the Basij. My sister was separated from my brother for a whole day and kept in a spare room. Ever since that day my sister has been too afraid to go out with me, even if our father comes too. She is also very easily upset and is very depressed. She is also very depressed about her reputation.
After she was arrested by the Police people in our neighbourhood started to gossip about
her and say that she must have done something wrong. No-one accepts that she was detained because she didn't have ID. This blot on her reputation means that now it will be very difficult for her to marry. I have had a medical problem for many years. As a result my [deleted] is very bad. I have been prescribed medication for my [disorder]. However, because we don't have access to any medical rights in Iran, I simply could not afford to buy the medication.
I can't say that it was one particular thing that caused me to make the decision to leave Iran, but really it was the combination of things, that made me feel that I don't have a place or a future in Iran. This is the reason I left. I travelled to Australia through [Country 1] to [Country 2]. From [Country 2] I caught a boat which was intercepted by the Australian Navy. I was taken to Christmas Island around [February], 2012
I fear if I were returned to Iran I would not even be allowed into the country. have no identity, and no right to re-enter Iran. In any case, even if I were to arrive at an Iranian airport, I fear that I would be detained and imprisoned by the Iranian authorities because, as a stateless Faili Kurd they believe I have no right to be there.
AAT Hearing
What follows is a transcription of the hearing (lightly edited for readability):
I received a submission from your adviser on 7 March with some attachments are there any other submissions I should know about or is this it?
A: No, everything is there.
M: Are you aware of all the information that you have provided in your applications and in the submissions in support of the applications?
A: Yes.
M: Obviously the submissions have changed your original claims so we will get on to that. Now these documents (part of the submission) were provided, but there’s no reference, no explanation for them, so are you going to provide some explanation as to what they are and their relevance. You have provided a number of documents, some Iranian, some Iraqi that only apply to your mother
A: Yes sure.
M: There are only documents from your mother but not from your father?
A: Since my conversion, my father who is a very religious person has stopped his relationship with me and declines to contact me and does not want have any contact with me since my conversion.
M: I need to know your whole family’s history so if you are not providing anything to do with your father’s history, then I might have to assume several elements of that story, do you understand that?
A: Mmhm.
M: Is your sister still in Iraq?
A: Yes
M: Do you have any (documents) from your sister?
A: My father has got all the documents regarding my sister and himself and I couldn’t get all those documents. The only thing is I have contact and relationship with my mother. My mother was able to provide those documents and that’s all I could provide otherwise I wish to get all those documents to help my case.
M: Well first of all it might it be easier to address the claims that you are now saying were false. So you claim that you are stateless.
A: No.
M: What citizenship do you have?
A: Iranian.
M: How long have you had Iranian citizenship for?
A: Towards the end of 2011, few months before my trip to Australia.
M: You also said in April 2012 that you are Shi’a Muslim. Are you a Shi’a Muslim in 2012?
A: When I entered Australia I was asked about my religion and I mentioned that I was Muslim Shi’a.
M: In June 2018 you said you were now agnostic? Is that correct?
A: I never mentioned that but interpreter at the time misinterpreted the word but I said that I hate Shi’a Muslim but I always believed in God.
M: That’s different to what is written here. I asked you at the start if you knew what was written in your submissions and you said you did. So in June 2018 your adviser has written that you have left Islam and you are now agnostic.
M: But you now say you are Christian.
A: Yes.
M: You also said that in 2012 that you didn’t have any identity documents. Is that true or false.
A: I made a mistake saying that at the time.
M: So it is not true. You were not telling the truth at the time.
A: Yes.
M: You said your father’s green card was cancelled. He tried to get a white card but couldn’t get a white card is that true or false?
A: Not right.
M: So you had no right to work in Iran and all your work was done illegally is that true or false?
I: I need to clarify if he means birth certificate or not.
A: He says before getting that legal identification after that I was able to work legally but before that I was only able to work illegally.
M: When did you get that again?
A: Two to three months before leaving in Iran.
M: So you had a limited right to study?
A: Yes.
M: You said that your father was unable to make enough money to feed all of the family. Is that right?
A: Yes.
M: You were not legally allowed to own a house but had to rent.
A: Yes.
M: But at the time you left Iran you were able to buy a house.
A: Yes, with that identification yes.
M: Could you register the car in your name?
A: Yes.
M: You could register your marriages?
A: Yes.
M: The birth of your children?
A: Yes.
M: You had a story about falling in love with an Iranian girl is that true or false.
A: Yes.
M: You said you were afraid to go out with your sister and mother and you said you were not able to go out with them by yourself. Is that true or false.
A: Yes, true.
M: You didn’t have access to any medical facilities in Iran and you couldn’t afford to buy the medication. But you had access to medical rights at the time you left Iran.
A: Yes.
M: You can’t return to Iran because you don’t have an identity and no right to enter Iran is that true or false?
A: I lost it in the sea the identification, at the moment I don’t have any identification.
M: You can just get one at the Iranian embassy.
A: I haven’t gone there, I haven’t tried and I am scared to go there.
M: I know a lot of Iranians who’ve have gone to get their passport. Theoretically, if you are an Iranian citizen, you have the right to go the Iranian Embassy to get a travel document. Choosing not to is different to not being able to. The Iranian government will issue it to you.
A: Correct.
M: In 2019, you said that you were stateless. That’s not correct?
A: No.
M: In 2018 and 2012 you said that you departed Iran on a fake passport, not your name, is that true or false?
A: Wrong.
M: You said that you had to get a loan from your employer in order to purchase a fake passport in order to correct out of Iran is that true or false.
A: I borrowed the money, but it was only for my trip.
M: Let’s get on to what you say your claims for protection are. So if you were to return to Iran, tell me what serious harm you feel would happen to you.
A: First of all, because I am Christian now and in Iranian law, somebody who is converting to Christianity denying their only religion, its called murtadd, the punishment is death punishment.
M: Who would carry that out?
A: Islamic government.
M: Do you have any other claims that you fear serious harm or is this your only claim?
A: Due to my ethnic background, I have always been discriminated and also diminished my reputation, they have never treated me well.
M: You have to be specific. What serious harm do you personally fear?
A: The most serious fear and the persecution is, because of my religion, I will be killed.
M: You said you fear serious harm because of your ethnic background? What type of serious harm do you fear? And who will harm you because of it?
A: I don’t know the type of persecution for that reason. I don’t know.
M: You’ve got to. You can’t have a general sense of harm. You are trying to convince the Tribunal that you’re going to be harmed, so I assume in 12 years since you have been in Australia you’ve got an idea of what would happen to you.
A: Because i left Iran on an Iranian passport and came to Australia, if I go back they will question me, blame me as being a spy for the Australian government and death will be punishment for it, which I don’t know.
M: We are talking about your ethnic background. So you said you feared serious harm, because of your ethnic background. So you say you are Kurdish?
A: Yes.
M: So what serious harm will happen to you because you are Kurdish?
A: I don’t know what will happen to me because I have never been back. I don’t know.

100. M: You can’t make a claim where you say I don’t know what is going to happen to me - you can make it, but it is not going to carry any weight. You are trying to convince the Tribunal.
101. A: Yes.
102. M: So, you’re Kurdish, what do you think will happen to you because you are Kurdish in Iran, that is seriously harmful and who is going to do it to you?
103. A: If I go back I will go back with the Iranian identification and there won’t be any punishment because I am Kurdish Faili but there will be discrimination.
104. M: Discrimination is not persecution.
105. A: Yes.
106. M: So what serious harm will happen to you because you are Kurdish.
107. A: I don’t know, I haven’t been back.
108. M: You had a claim that you said you will be considered as a spy. Who would think you are a spy, and why would that think that?
109. A: 100% by the Iranian Islamic Government and also Sepah and they can actually put their name on you, they can blame you for everything but I don’t know.
110. M: So why would they think you are a spy?
111. A: I don’t know, I just gave an example. I don’t know what will happened to me if I go back.
112. M: I have to test your credibility, so what you are telling me is truthful or makes sense. If you say I don’t know why they will think I am a spy, it does not do a lot for your credibility. So I’ll ask you again. Do you think you will be considered a spy if you return to Iran.
113. A: I don’t know.
114. M: Are you making a claim that you fear you will be considered a spy? Yes or no?
115. A: No.
116. M: I take it that you withdraw that claim.
117. A: Yes.
118. M: Okay. So your claims are that you fear that you will be killed by the Iranian government because you are Christian or you fear some that of harm because you are Kurdish. So those are your two claims.

119. A: Yes.
120. M: Do you have any other claims or are these your only two claims.
121. A: Just these two.
122. M: Okay, first of all let’s start with these documents you have given me. Tell me the pathway to citizenship for your father and mother. What their backgrounds were when they became citizens and when your other family became citizens.
123. A: My parents were first cousins and they were extradited from Iraq in 1980 by force. My father had to go through a lot of problems to be able to get those identities for my family and he was only able to get it just few months before I left Iran.
124. M: So what forms of identity did they have before they got Iranian citizenship?
125. A: Everybody we lived with had the green card. But it was risky for us to carry the green card and it was not the recognised and if they see you on the street for some reason they would ask your ID and if you produce that ID to the authorities you get more punishment. Harsher punishment if you show that, that’s why we were always declining to use that card until we got the identification of the Iranian citizenship.
126. M: Did the green card give you benefits? Health benefits.
127. A: No.
128. M: Country information is saying that it does and you are saying that it doesn’t.
129. A: Maybe the country information that you have is a country routine that is there. But in reality that green card does not have any use for hospital, schools. Anywhere.
130. M: So why bother giving you a green card.
131. A: They don’t consider any value on it. It was only an ID.
132. M: Did you have white cards after that?
133. A: We never got the white card. Because my father always tried to get the Iranian identification that is why we never got the white card.
134. M: I don’t understand. What do you mean he tried to get Iranian identification. So you didn’t get a white card? On what basis did he try and get Iranian identification?
135. A: My father tried so hard to get the white card never been successful. He mentioned he paid a lot of money to a person and he was able to get those ID’s for us.
136. M: I’m just a bit confused. So what ID’s did he get for you?
137. A: The Iranian birth Certificate and Citizenship.
138. M: So how did he get that?
139. A: He paid bribe money. He paid money to someone. And that someone organised to get them.
140. M: How did he organise that? Did he pay it to the Iranian Government?
141. A: I don’t know.
142. M: I thought it was quite important you know, Iranian Citizenship. How things happen, you are an adult, it is very critical to your claim but you don’t appear to know.
143. A: I was very young at the time; my father was the one who handled all this process. Whom he paid, how he paid and how much he paid I don’t know the details. And that’s why I don’t have this information.
144. M: So how old were you when you got your citizenship?
145. A: 20 to 21.
146. M: That’s not young, that’s an adult.
147. A: At that time, we were so busy dealing with the problems and issues that we weren’t dealing with the citizenship issues. My father was the one dealing with this.
148. M: Yeah, but now it has been years since you left, so I’m sure you had time to speak to your father, how did he get that?
149. A: To be honest with you, my personal concentration was to get that I had my citizenship, for me to get out of the country Iran who I consider to be a prison. I was able to escape the country who was the prison for me and that was what I was happy with and I didn’t want to know the details.
150. M: So, your mother has an Iraqi identity card.
151. A: Yes, I think she got it recently.
152. M: 2010 that is not recently.
153. A: I don’t know, I asked her, I asked my mum to send me that the documents she has, and this is what she sent.
154. M: But you have to put it into context for me because I am now looking at this. You tell me your father got the shenasnameh by paying somebody in Iran. You’re giving me a copy of an Iraqi document from your mother from 2010. So, what is the story there?
155. A: I don’t have information regarding the date of those documents I only ask my mother to send me the documents that she had in her possession and that’s what she sent. I don’t know whether it is 2010 or when.
156. M: My obvious concern is the original document that you gave with your original application was a copy of your mother’s green card. The documents you have given here with no explanation, from the documents concerning your mother it appears that she was born in Iraq. There are no documents regarding your father at all. So there was a system for stateless Faili expelled from Iraq to get Iraqi identity. So that might be what your mother’s done but you have provided no explanation, so I don’t know.
157. A: Because I don’t know.
158. M: You’re trying to convince the Tribunal and you’ve had 12 years to do this. My concern is if your mother is of Iraqi background and your parents are first cousins and they left at the same time, so there should be a document trail of your father’s identity. You have an identity number; your sister has an identity number. You have never given any documentary evidence about your father. Your father may well have been an Iranian citizen from the start and married your mother who is an Iraqi citizen so effectively you’ve been Iranian citizen for a lot longer than since 2011. You have never provided a green card for your father, a white card for your father, or your fathers identity card or shenasnameh – perhaps it is because he’s always been an Iranian citizen and its your mother who recently became an Iranian citizen. But because your father was an Iranian citizen that would mean you and your siblings would have been Iranian citizens as well. So, one of the things that the Tribunal has to consider is that you gave information for one of your parents but not the other or siblings. It raises questions in my mind that you are only providing information that supports your story and you are not providing documents because they don’t. On top of that you have provided statements you know to be false over years and years in order to gain a migration outcome favourable to you. A further concern that I have is your brother arrived about three years before you claiming to be a stateless Faili Kurd and was accepted on that basis. So it is in your best interest to say you got Iranian citizenship just before you came because that would still mean he was stateless when he came to Australia so he would not have been telling a lie. But if you have been an Iranian citizen all the time, that means that your brother would have been an Iranian citizen all the time as well, so I have a concern that you may be lying about the date which you were a Iranian citizen in order to protect your brother’s claim in Australia.
159. A: If you go through the the periods and the dates were in the beginning the smugglers helping me to get to Australia. They advised me if you are already Faili Kurd why do you have to put your Iranian citizenship that’s where you already have a case. That’s why at the beginning I said I was a Kurd Faili but I have converted into Christianity and I have already spoken to Mr Momeni (adviser) and I am here to tell you the truth now after 10 years.
160. M: But think about the evidence you have given under oath where you did not tell the truth.
161. A: I understand that, and I was scared.
162. M: Scared of what?
163. A: To be sent back to Iran. At that time, I was so frightened to tell the truth and I thought I was doing the right thing but now that I want to correct my mistakes and I want to be truthful now.
164. M: Okay so you can’t tell me about your mothers’ pathway to Iranian citizenship other than these documents. You don’t know how it happened or you don’t know why she got an Iranian identity card from before you came, before you left Iran. I find it very hard to believe you if you were stateless or just before you left prior to that your mother has an Iraqi identity card. I find it hard to believe that you wouldn’t talk about this.
165. A: I don’t have any more information except Mr Momeni (adviser) asked me if there are any document asked to be sent and these are the only documents that was sent, and I don’t know about anything.
166. M: Okay, tell me about your Christian conversion. What can you tell me about it? How you give expression to it. Why people will care about it in Iran.
167. A: At that time my girlfriend was a Christian girl and my brother’s wife was also a Christian as well and because I was under a lot of pressure and depression because of my visa I have not being able to get the visa at that time, I was very sick mentally and they were always praying for me.
168. M: When you say “at that time” what do you mean?
169. A: After my rejection of my visa, I went through depression and lots of stress because of the rejection and my sister-in-law and her family who were all Christian’s they were inviting me to their prayers and also my girlfriend was Christian girl we were going to different churches and we light candles and prayed there.
170. M: So, you said you had depression and stress, did you have any documents of that? Did you see a doctor or ?
171. A: No I don’t.
172. M: Did you take any medication?
173. A: No.
174. M: How do I know you were depressed. Do you have any medical evidence on that or am I just relying on your oral evidence?
175. A: I didn’t go to the doctor for that reason.
176. M: You said that your ex-girl friend was a Christian. What denomination was she?
177. A: I think she was Catholic.
178. M: so which churches did she take you to.
179. A: Big church in [Suburb 1].
180. M: What do you mean big church in [Suburb 1]?
181. A: It’s a big catholic church which I am not very good at the name of the churches, so it was close to where she was living we were living, we were walking to that, it was opposite to [a] Park and we were going there and lighting candles and praying.
182. M: What do you mean you were praying. You were agnostic.
183. A: (interpreter misinterpreted) We were going together she was the one doing the prayers not me.
184. M: So what were you doing?
185. A: I was with her.
186. M: Doing what? Just entering the Church.
187. A: I was sitting with her out of respect I was sitting next to her.
188. M: So you went to the Catholic church. So how often did you go to the Catholic church?
189. A: We used to go all the time like different churches. Around the area. Like every Sunday when we have time we used to go for a little bit for half an hour and I am next to her and I am just watching around and I didn’t understand anything about it at that time.
190. M: I am Catholic and I go to mass. You are talking about [name Church] so um which churches did you go to on Sundays. There’s mass on Sundays. So which churches did you go to because if you are catholic you normally go to the same church. Strange that you are going to different churches. So what churches did you go on Sundays.
191. A: Whatever was around her house. Like she was going for just a praying. She didn’t mind.
192. M: But you’re going.
193. A: I’ll go with her because I didn’t understand anything.
194. M: So which churches were you going to.
195. A: That one, the big one in [Suburb 1] is it always open and people going in praying. I don’t know the name but there’s people always going and big things that they have candle and she pray and start the candle on. I went to [Lutheran Church] in [Suburb 2].
196. M: So you say your girlfriends catholic.
197. A: Now I know she is catholic.
198. M: So you say your girlfriends catholic and you are going to these churches with her but you go to a Lutheran Church. Why?
199. A: At the time when I was going with her I didn’t understand what the difference was between the churches. And when I started because it was very close to her house, one day I was sad and I searched and closest one to her house.
200. M: Where did she live?
201. A: [Name] Street.
202. M: Where abouts in [name] street?
203. A: Now it has been five years ago, the exactly the apartment behind this. If it is on the map, I can write it to you, but the numbers no. I can write it for you on the map.
204. M: That’s alright. But which part of [name] street? What is it next to?
205. A: It was at the traffic light, the [shop] was next to her house.
206. M: Was it the city end of [name] street or [Suburb 3]?
207. A: City [name] street.
208. M: How far down the city end.
209. A: Less than 10 minutes. The big traffic light. Near [a] Park.
210. M: So why did you go to a Lutheran Church? Are you happy to do this in English? Ok so, you went to this Lutheran Church because it was close to you and you went on your own. You are still going out with your girlfriend.
211. A: No we separated.
212. M: So how long did you start going to the catholic churches and then separating.
213. A: After two years.
214. M: So for two years you went to a catholic church?
215. A: No. Catholic church I was going with her she was praying when we go to the city she wants to go pray when I started going to the Lutheran Church she started coming with me the pastor he saw her, start coming with me, she didn’t mind going to what she like she just pray.
216. M: I just wonder why she didn’t go to the Catholic one though.
217. A: She didn’t used to go to the church. She go just praying 5 minutes 10 minutes. She went there for 30 minutes, just where she lived.
218. M: I understand what happens in Catholic church. If she is Catholic, and you are interested in Christianity, why wasn’t she getting you to speak to a Catholic priest?
219. A: I don’t think so, she used to go to the Catholic church all the time. I didn’t think.
220. M: You said she is going every Sunday, she’s lighting candles and praying. She is obviously a committed Catholic. So she’s going in and praying regularly and lighting candles to pray for any outcome she wants to pray for. That is the mark of somebody who is an observant Catholic. Normally she would introduce you to the Catholic priest to see if they can discern Christianity in you and guide you into the Catholic faith. It seems strange to me the story that a committed Catholic as you pointed out is happy to go with you to the Lutheran Church and pray and the only reason is that because it’s close. So you never saw a Catholic priest?
221. A: No.
222. M: So she never introduced you to a Catholic priest?
223. A: No, never.
224. M: Strange. Go on. You and your girlfriend were at this Lutheran Church.
225. A: I used to go and the first time when I went and they really welcome me and they pray for me and the pastor preacher he prayed for me and if you want he will help me and if you want you can come here and here is the way to survival. The way to survive. I started going there because I saw they treated me, they didn’t act different where I was coming from and how I looked. I was sitting and all of them every Sunday they welcomed me. Like a family, and some of them they started coming to the shop for a haircut. So I feeling very welcome and that’s why I keep going there it’s like a family.
226. M: So when were you baptised?
227. A: [April] 2019.
228. M: You still go there every Sunday?
229. A: Yeah. I try my best when I am working I’m working all the time, when I am free 100% I will go there.
230. M: So how often do you go in the average month.
231. A: Three times a month.
232. M: I don’t have any letter from the Pastor of the church did you have one?
233. A: We did.
234. M: I might be mistaken.
235. REP: We did respond to the hearing invitation the first time so it should be there.
236. M: Okay. So you go three times every month. And you sent me a copy of your [Social media] page where you write some things. When did you start writing things?
237. A: When I start going, because I start enjoying.
238. M: Roughly, when did you start putting things on your [Social media].
239. A: 2019.
240. M: Why do you think that anybody would know or care that you have converted to Christianity?
241. A: Because Jesus Christ has all this guide people you have to put your life up there so everybody can observed it.
242. M: What’s the difference between the Lutheran Church and the Catholic faith your girlfriend was part of? And why do you prefer the Lutheran faith?
243. A: Because I didn’t know the difference between these two churches at the beginning. But then I was going to the Lutheran church, the warmth and the welcoming messages that I received from there guided me to go there more often. In the other Catholic church when I went with my girlfriend, she was only praying and I didn’t have a chance to talk to anyone there but in the other church it was always welcoming and I was welcomed
244. M: Ideologically what are the differences between the Lutheran faith and different other branches of Christianity – Catholic that’s the only other one you have been to.
245. A: The church that I go to every week, we sing together and they offer the wine and bread every week.
246. M: What is the differences between the Lutheran faith and other branches of Christianity? Do you know?
247. I: Could you please explain the meaning of Ideology?
248. M: For instance in Islam Shi’a Islam is different to Sunni Islam for a variety of reasons but they are both Muslim but they have different views on how you practice Islam. Same with Christianity, biggest on is Catholic branch of Christianity, the other one is Lutheran, there’s Anglicans, there’s Baptists. So that’s what I mean, what’s the different between the Lutheran view of Christianity and Catholic Christianity. Why are you attracted to the Lutheran view of Christianity.
249. A: Because when reading the bible Catholic church you can pay money to bypass you parents’ sins but in the Lutheran church where I go, Martin Luther was a German and he has objected to that point that you can’t by pass your parent’s sin by paying money.
250. M: There’s more to that in the Catholic faith there’s certain prescriptions on how and when you can do that. But that’s a small point is there anything bigger about the Lutheran faith that is different to the Catholic faith or Anglican faith?
251. A: I don’t have big knowledge yet. I am still self-educating and studying.
252. M: Have you been doing any study at the Church?
253. A: Yes.
254. M: How often do you study at the church.
255. A: Now Church is online, mostly about the church.
256. M: It’s been three years. You can do a degree in three years.
257. A: I’m still studying.
258. M: Does everybody in Iran know now that you are a Lutheran?
259. A: My family definitely knew and know about it and they are against my decision and also if you check my [Social media], nobody has put a like on or comment because they don’t like it.
260. M: Is this a public page is it? A couple of concerns here. On 31st of August in 2018 you received a negative decision on your Protection visa application as they didn’t believe you were stateless. In April 2019, you started posting on your [Social media] page. You showed no interest in religion prior to that. In the last three years you are a baptised Lutheran having come from zero interest to high interest to Christianity, but it coincides with a negative decision of your Protection visa application. So the timing is highly suspicious to the Tribunal. So my concern is that this is just a tactic to try and get a protection visa, while you may be attending this Lutheran church you’re not actually committed to the faith it is just another means to get a visa ? There is a section in the Migration Act 5J(6), if I think you are doing these things for the sole purpose of establishing refugee profile I can disregard them for purposes of your protection visa. I ask for your comments about my concern on the suspicious timing of your conversion to Christianity and your willingness to put things on the [Social media] page.

261. A: When I chose Christianity, I went on my own whim and spirits and I went there and maybe I think that God has giving opportunity to go towards Christianity by making my heart very difficult and I feel that was a way for me to go towards Christianity. About my previous lies I told you before about my mistakes. Your decision of accepting me or rejecting me there will be no changes in my view of Christianity and I will continue my religion.
262. M: I’m just looking at the submissions. I’ve got a letter from [Mr C].
263. A: No, another pastor.
264. M: What’s his name?
265. A: [Mr D].
266. M: The other question is why has your mother’s name has changed?
267. A: I think because of Persian they say if her name is not Persian it is an Arabic name, she has to make it a Persian name, an Iranian name.
268. REP: I have three letters of support.
269. M: If you can search it.
270. REP: Ok.
271. M: There’s also country information that says even if anybody sees your [Social media] page in Iran, country information says that Iranian authorities don’t really care about people who return to Iran as failed asylum seekers who’ve claimed to have converted to Christianity, if you don’t have pre-existing profile in Iran. People may say all kind of things to get a Protection visa, so they would assume that it is not genuine. Given that, why do you think that the Iranian authorities would have any interest in you to return to Iran?
272. REP presents letter to Member.
273. M: Oh, yep I do have it.
274. A: But the information that I have for country Iran, if you go to the site the name of (website named) in there, there are documents and cases of converted people being tortured and being harmed.
275. M: You haven’t provided it and who is this guy who’s got a website?
276. A: I searched it in google, that is the website and (website named) is the website.
277. M: Who is this guy? I have to put weight on somebody who just puts a website up.
278. A: I don’t know the name. if I go back to Iran I have to continue to follow the way of my Christianity which is evangelising people and I will do it, if I continue evangelising people which I will do it, then it will be against the Iranian government and death punishment is the punishment.
279. M: Are you evangelising here in Australia?
280. A: At the moment all my friends are Christian and Catholic. Like where I work, all my customers are not Middle Eastern, Asian or Iraqi.
281. M: That’s not what I asked. Are you doing any evangelising in Australia?
282. A: No. I talk to people about Christianity but they are already Christians and Catholics.
283. M: If you are evangelising you’re out in the suburbs, train stations you are out in front of town hall, you are out in the western suburbs. Evangelising, you are bringing people to the faith. So, are you doing this in Australia?
284. A: At the moment, no.
285. M: Why would you do it in Iran.
286. A: Iran because I would bring them and tell them come and see what Jesus saying. See that’s different between Muslim and Jesus.
287. M: But you are not out in the western suburbs, plenty of Muslims outside western suburbs to evangelise, plenty of Buddhist, plenty of people who have no religion in all suburbs. Why aren’t you evangelising out there?
288. A: At the moment most of the people here are Christian and Catholic. So, when I walk out most of the time when I walk most of the people I talk to most of the time are all Christian. You know?
289. M: What I said is going out to people who aren’t Christian.
290. A: But I didn’t have that chance, I didn’t do it yet.
291. M: Ok it’s been three years.
292. A: But if I go to Iran, its Iran not Christian there. It’s not Christian at all. Here it is open everybody can.
293. M: But you’re not doing it here why would you do it over there? It’s so easy to do it here.
294. A: Yep.
295. M: But you’re not doing it. So, you’re saying over there, it’s so hard and dangerous there that you will do it. You can understand from my perspective if you’re not doing it here where it is so easy to do, it is unlikely you will do where it is hard to do.
296. A: This is with Jesus. this is how my life will start.
297. M: So, you mentioned this website, if you want to put that in post hearing submissions that’s fine but again it’s got to carry some weight. It can’t be just some random guy on.
298. A: I don’t know if it is a guy or a girl.
299. M: So, it is just some random person on.
300. A: Yep.
301. M: It’s unlikely to carry much weight. Do you understand? But you can provide it. So I do have these on file. But you have given me some character references from people. None of them seem to write anything about your immigration claim. Do they know that?
302. A: I’m refugee.
303. M: Well, you are not a refugee. So, do they know that you have falsely claimed to be stateless for a decade and have only recently admitted that.
304. A: No, they don’t know. I didn’t tell. They just know I am a refugee.
305. M: No, you are not a refugee. You are an asylum seeker.
306. A: Asylum seeker.
307. M: So, they don’t know that the claim you have made is false. You can understand how much weight I can give to a character reference where the person giving the character reference…you have given me these character references for people to say yes you are a very upright person but you have not told them about your claim history before they write a character statement to you. So, if you are talking about being Christian and needing to take responsibility, I would have thought telling these people that you haven’t been telling the truth for the last 10 years would be necessary. Because that may influence whether they are willing to write you a character reference. So, you understand what I am saying about how much weight I can give it? You haven’t been open, and you are trying to convince me as a good Christian you’re being open with people.
308. A: What my lawyer said is character reference from my lawyer about what I am as a person, what’s they write about me how did they know me and what about me. That’s what they write there. I didn’t ask them for further things. What you know about me and so far just write. But if you have a look like they saying the same things.
309. M: But would they write that knowing your background?
310. A: No, because sometimes at work they do not like to talk about everything.
311. M: Ah so what I am saying is. So, you are presenting yourself as a Christian now truthful to everybody.
312. A: Yes.
313. M: So, if you are asking somebody to write a Character reference for you in support of an immigration claim its morally beholden on you to be truthful with them about your immigration claim. Because you haven’t been telling the truth and you didn’t say to them you haven’t told the truth. Before you get them to write it, surely you would have told them the whole story. Isn’t this what a good Christian should do.
314. A: You’re right. What I understand if this is correct just write about me how do you know me and they write what they know it’s about my work and what I do.
315. M: You don’t evangelise. That raises questions in my mind about how truthful this Christians identity is. You’ve asked several people to write a character reference in support of a refugee claim without telling them that you have not been telling the truth about your refugee claim for 10 years.
316. A: Yes.
317. M: Now you have also made a claim in 2018, or on your behalf, that you will be harmed as a failed asylum seeker. Country information available to me is that Iranian authorities understand the economic situation in Iran and they understand people go overseas to try and claim protection and many are unsuccessful, so they come back to Iran years later in many cases. Unless you’ve got a pre-existing political profile in Iran, the Iranian authorities don’t care. Is there any reason why you think you would be of interest if you had to return to Iran given the Iranian authorities don’t seem to care?
318. A: I don’t know what will happen to me, but if you have the country information you should see their own people how much harm they experience what punishment they experience and the people been deported what will happen to them comparing with their own people who have not been deported. So people who will be deported might get harmed as well. But I don’t know what will happen to me.
319. M: Also you said you don’t know what will happen to you because of your Kurdish ethnicity, again country information indicates that by in large, unless you have a profile, Kurds are relatively well integrated into Iranian society and simply being Kurdish does not mean you’re persecuted. Do you have any comments about that information?
320. A: Continued discrimination because of being Kurdish Faili, but also looking down at us, and it would be get worse and it is getting more and more.
321. M: Can you be more specific?
322. A: If I go back to Iran, and the way that I speak, they would know that my background is Arabic background, they don’t look nice because they consider us Arabic people that killed their descendants and parents and they don’t treat us Arabic speaking . They would pick up from my language that I will have background of Arabic.
323. M: We are talking about Kurdish. Do you speak Kurdish?
324. A: No, I don’t. Because when I born in the city base speak only Arabic and Farsi. My parents did not talk to me in Kurdish.
325. M: What did they speak to you?
326. A: Arabic.
327. M: Both parents.
328. A: Yes.
329. M: So is that why would you be considered Arab just because you speak Arabic if you are Kurdish. Arab is an ethnicity, speaking Arabic does not mean you are Arab.
330. A: Because there are two Arabic accents in Iran. One is the south of Iran where they speak Arabic, different Arabic than Iran. And if they know that that is the accent they are using they would know that all these people from Iraq they speak that accent and they belong to Kurdish Faili.
331. M: Yes I understand. Some Arabs speaking ethnically Arabs, you are ethnically Kurdish.
332. A: So you wouldn’t be considered Arab, you would be considered Kurdish. He speaks Arabic opposed to Ahwazis who are considered ethnically Arab. Ok that’s what you are saying you are not claiming ethnically to be Arab.
333. A: No.
334. M: Do you have uncles and aunts in Iran?
335. A: I have only one.
336. M: So did your father have brothers or?
337. A: Yeah.
338. M: How many brothers?
339. A: I think there were 9.
340. M: Where are they?
341. A: They are all in Iran now.
342. M: How many brothers and sisters did your father have?
343. A: 4 brothers and 4 sisters I think.
344. M: Are they Iranian citizens?
345. A: I think so yes now. I don’t know. I don’t have any contact with them.
346. M: Well when did they become Iranian?
347. A: I don’t know.
348. M: Well why do you think they have become Iranian? You said you think they are, why do you think they are?
349. A: So when my dad got for us I think everybody got it. All his is brothers got it as well.
350. M: So it would have been 11 years ago. So surely you would know that.
351. A: I don’t have any contact with them.
352. M: No but you do with your parents so I guess what the rest of the family got Iranian Citizenship as well.
353. A: Yep maybe.
354. M: You never asked?
355. A: I don’t have any contact with anybody back home. The only one is my mum.
356. M: Has your mother got any siblings?
357. A: One sister, two brothers but he passed away.
358. M: They got Iranian or Iraqi?
359. A: No. They got it at the same time as her. All at the same time they got it.
360. M: Okay. I’ll need copies of their stuff. When did you stop speaking to your father?
361. A: When I get Christian. Like 3 years ago. He stopped talking to me.
362. M: So before that. You were here eight years before that. So you used to speak to him?
363. A: Yeah.
364. M: You didn’t know his brothers and sisters got Iranian citizenship?
365. A: We didn’t have good family relationship with them.
366. M: With who?
367. A: My uncles, my dads brothers.
368. M: You didn’t or your dad didn’t?
369. A: We all didn’t.
370. M: So your family has never been close? Your fathers’ brothers and stuff?
371. A: My father?
372. M: You father with his sisters and brothers have they been close?
373. A: No.
374. M: (The applicant was advised about s 424AA). In your entry interview when you arrived you were asked what your father did and your parents did and you said that he had a store or they sold goods but you also said he had a store and other stores with his brothers and they used to run the stores in [City].
375. A: In [City]. Yeah its everybody.
376. M: So they used to all run it together?
377. A: They never run it together.
378. M: That doesn’t seem to be reflective of a person who doesn’t get on with his brothers at all. If they are all located selling stores.
379. A: My comment is they never had a good relationship together.
380. M: Okay the last thing is you made a whole range of other claims that all revolve around what happened to you in Iran because you didn’t have citizenship. And again one of the concerns the Tribunal has is that you may have had Iranian citizenship all the time or you may have had it for a lot longer than you say you have had it for and, that being the case these claims would also fall away because you would have been a citizen at the time you said that you couldn’t get legal work and you sister didn’t have ID’s and all those issues.
381. A: But it really happened those claims.
382. M: Is there anything else you would like to raise now or?
383. A: No.
384. M: Okay. Listen I raised a whole range of issues and you need to provide more evidence to address some of my concerns, particularly regarding your father and citizenship. And to explain what all this means. So I will give you until a week until 24 to provide that.
CONSIDERATION OF CLAIMS AND EVIDENCE
385. The applicant arrived in Australia as an unauthorised maritime arrival [in] February 2012 and applied for protection. He was assessed and found to be owed protection in July 2012 however the application was refused in 2014 and he was then required to lodge an application for a Safe Haven Enterprise Visa (SHEV) in May 2016. He attended an interview with a delegate on 6 June 2018 and his application was subsequently refused.
386. The applicant is a [Age] year-old single man. He claimed that he was a stateless Faili Kurd from Iran who had left Islam and was agnostic, that he would be imputed with being anti-regime and pro-Kurdish because he had spent a long time in a western country, and that he would be a member of a particular social group as a failed asylum seeker from a western country.
387. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
388. Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Significant Credibility Issues
389. Although the applicant maintained up to and including his SHEV application that he was a stateless Faili Kurd, the delegate found that while he was a Faili Kurd, he was an Iranian citizen
390. Prior to the AAT hearing, a pre-hearing submission was received in which the applicant admitted that he had provided false evidence previously. He claimed that he did this on the advice of the people smugglers and people that he met on the way to Australia. I do not accept this to be the case given that he continued to maintain this falsehood for years after he arrived.
391. The Tribunal has listed below the claims that he made that he has subsequently admitted were false, and the years in which he made those claims:
a.Stateless (2012, 2016, 2018);
b.Lacked identity documents (2012);
c.Left Iran on a fake passport (2012, 2018)
d.Could not own a house, register a marriage or the birth of children (2012);
e.Had no access to public healthcare (2012).

392. His willingness to maintain his claims over an extended period to various officials while he knew them to be false, in order to gain a favourable migration outcome, reflects adversely on his credibility as a witness. The Tribunal has taken this into account with respect to his other claims.
Citizenship
393. The applicant claimed that he only obtained Iranian citizenship a few months prior to leaving Iran, and that this was the result of his father paying bribes to unnamed officials. I do not accept that this is the case.
394. The applicant has provided several pieces of evidence in support of his family’s identity, however there are some inconsistencies between the documents and also information contained therein that raises concerns regarding the truthfulness of the applicant’s claims;
a.A copy of an undated green card in the name [Ms E, given name 1] that he claims is his mother’s. It gives her date of birth as [Date 2] and says that she is an Iraqi citizen;
b.A copy of an Iraqi ID card issued [in] December 2011 to [Ms E, given name 1];
c.A copy of an Iranian shenasnameh for [Ms E, given name 2], date of birth [Date 2]. It was issued [in] October 2011. It lists the names of three children, but the applicant’s name is not included there. The three children also have non-consecutive Iranian ID numbers, as do [Given name 2]’s father, and [Given name 2] herself. what he claims is his mother’s birth certificate book dated [October] 2011;
d.A copy of a letter from the Civil Registration Department saying that [Ms E, given name 2] previously held and used foreign documents in the name [Ms E, given name 1];
e.A receipt from an Iraqi Appeals Court dated [July] 2019 issued to [Ms E, given name 1, Surname 2] ([Surname 2] being her father’s name);
f.A copy of a receipt dated [January] 2022 regarding an application to the Iraqi Political prisoners Foundation (an Iraqi government body through which people can claim compensation for acts done by the Saddam Hussein regime prior to 2003); and
g.A copy of an extract from an Iraqi family registration certificate showing the name [Ms E, given name 1], date of birth [Date 3].

395. This information was provided as part of his submissions however there were no explanatory notes included with them in order to highlight their relevance to the Tribunal. The applicant provided no identity documents for his siblings or maternal grandfather (all of whom had Iranian ID numbers and therefore were eligible for their own shenansameh and ID card from age 15), nor for their father who should also have had a copy of his own green card and Iraqi ID card (just like his wife) if he had been expelled from Iraq.
396. Based on this I am satisfied that the applicant’s mother was born in Iraq and was expelled to Iran during the 1980s. At some point her father was able to prove his Iranian heritage and received a citizenship number as a result. I am satisfied that the applicant’s mother then either received her Iranian citizenship once her father received his, or through her husband upon marrying him. I am satisfied also that the children have always been Iranian citizens. She has also subsequently applied to have her Iraqi citizenship recognised and was successful in doing so.
397. I am also satisfied that the applicant’s father is, and has always been an Iranian citizen. The claim that he married the applicant’s mother in Iraq and they were expelled at the same time relies entirely on the applicant’s oral testimony, which I find lacks credibility given his willingness to fabricate claims and continue to profess those same fabricated claims as being true over a number of years, to multiple Australian officials.

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

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

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

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

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

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

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

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

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

[2022] AATA 2613

21 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice