1827583 (Refugee)

1827583 (Refugee) [2022] AATA 4782 (12 October 2022)
.
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Fadel Kamel Mohamed (MARN: 1463750)
CASE NUMBER:  1827583
COUNTRY OF REFERENCE:                   Iran
MEMBER:Brendan Darcy
DATE:12 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 12 October 2022 at 10:55am

CATCHWORDS
REFUGEE – Protection Visa – Iran – race – Arab ethnicity – Ahwazi or Khuzestani Arab – a non-practicing Muslim – a failed asylum seeker – imputed political opinion – altercation with the Basij – media profile – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 46, 65, 499
Migration Regulations 1994, rr 1.05, 1.12, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 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 the Islamic Republic of Iran (Iran), applied for the visa on 6 April 2017. The delegate refused to grant the visa on the basis that the applicant will not face a real chance of serious harm or a real risk of significant harm on the basis of being an Ahwazi or Khuzestani Arab, a non-practicing Muslim or as a failed asylum seeker based on the available country information.
The applicant appeared before the Tribunal on 19 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses: [Mr A] and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
In 2018, the applicant claims to be born in Ahwaz, Iran, on [date]; to Arab parents. The applicant further claims that he has lived at the same address his entire life prior to departure, with the exception of a three-to-six-month period between the ages of [age] and [age], where he resided in [Village 1].
The applicant arrived in Australia as an Irregular Maritime Arrival (IMA) on [date] July 2010, –[with] no valid travel documents. He was allocated the Boat ID: [deleted].
Initial claims for protection: stateless Kurd
The Department conducted an Entry Interview with the applicant on 20 August 2010 during which the applicant’s initial protection claims were presented to and recorded by Departmental officials. The applicant was assisted by an interpreter in the Farsi and English languages. His claims at the time are summarised as follows:
·     He was a stateless Feyli Kurd and Shia Muslim;
·     He did not have any identification and would suffer persecution at the hands of the Basij when stopped at checkpoints;
·     The applicant has a stepbrother in Melbourne, [name], whom he contacted on the day of their arrival;
·     The applicant claimed his family had been expelled from Iraq to Iran;
·     The applicant claimed to have departed Iran using fake Iraqi passports under the name ‘[name]’; and
·     The applicant indicated he had not been politically active, involved in protests against the government, or had family members involved in protests. He stated he had not had any problems with the Iranian authorities, including suffering physical violence.
The applicant made the following claims in his Statement of Claim on 29 August 2010:
· The applicant departed Iran using a false Iranian passport.
· As a stateless Feyli Kurd, the applicant and his family were unable to obtain basic benefits such as education, work rights, medical assistance or travel between cities.
The applicant was required to attend a Refugee Status Assessment (RSA) interview on 3 September 2010. No significant additional claims or information was provided during the RSA interview.
The RSA delegate found that the discrimination the applicant faced did not amount to persecution, nor would the applicant face a real chance of persecution should he return to Iran.
The applicant requested an Independent Merits Review (IMR) on 22 December 2010, which was subsequently granted.
In a submission made on 21 March 2011 in relation to an Independent Merits Review, the applicant presented an undated statement containing the following additional claims:
·     The applicant stated that, while en route to Australia, the people smuggler told him and his siblings to make their case based on Kurdish ethnicity and statelessness, and not to make political claims as the authorities in Iran will find out and harass his family as a consequence;
·     In Iran, the applicant was pressured by members of the Basij to join them. Following an altercation over his recruitment, members of the Basij ran over his brother, [Mr C], with a car, who suffered brain damage as a result;
·     The applicant was arrested by the Basij when he went out to buy medicine for his mother. The Basij held him for a week, where he was fingerprinted and tortured. They told him this was the result of him not joining the Basij. He promised to join them if they would release him to see his family;
·     Several days later, after the applicant did not return to the Basij, he was pushed into a car by members of the Basij and told that they had run over [Mr C] once, they would do it again, and that since he would not sacrifice himself for the leader of Iran, the Basij would arrest and kill his family one by one in front of the applicant and then kill him;
·     The applicant and [Mr C] stayed with different people in Ahwaz in fear of their lives; and
·     The applicant fears the Basij will kill him if he returns to Iran.
At the Independent Merits Review (IMR) interview on 20 June 2011, the applicant made the following additional claim: that he could not speak Kurdish as his mother encourage the applicant’s family to learn Persian and would therefore only speak Persian at home.
Submissions were made on 21 March 2011, and an interview was conducted on 20 June 2011. On 31 August 2011, the IMR reviewer affirmed the Departments findings, and found the following:
·     The applicant is not stateless and is a national of Iran;
·     The applicant’s claims of political persecution were not credible;
·     The applicant was not targeted by the Basij;
·     The applicant’s brother, [Mr C], did not received his injuries from the Basij as claimed;
·     The applicant’s claim to be ethnically Kurdish was not credible.
On 11 November 2011, the claimants commenced judicial review and on 10 February 2012, the Federal Magistrates Court determined that due to a failure to afford procedural fairness, the matter was referred once again for an Independent Merits Review.
The second IMR interview was conducted on 14 March 2012, with a positive outcome proffered on 20 March 2012. The IMR delegate found the following:
·     Based on evidence provided by the applicant, and corroborative evidence provided by the applicant’s siblings, the reviewer was satisfied the applicant was neither an Iraqi citizen, nor an Iranian citizen and therefore stateless.
·     The applicant showed his brother’s ([name]’s) 1999 Protection visa application, whereby [he] was found to be an undocumented Feyli Kurd with no residency rights in either Iran or Iraq.
·     The applicant’s statelessness would mean he had no protection from the Basij vigilante.
·     The reviewer accepted the applicant had been harassed, discriminated against and persecuted as claimed.
Section 46A(2) bar lifted and a new set of claims
On 25 November 2015, the Minister allowed an application for a Class XB Subclass 785 temporary protection visa by lifting the application bar pursuant to section 46A(2).
The applicant abandoned his initial claims and provided a new set of his claims for protection on 18 June 2018, making the following claims in a statutory declaration.
·     The applicant was not a stateless Feyli Kurd, but an Iranian citizen of Arab ethnicity and an adherent of Shia Islam.
·     The applicant was instructed by the people smuggler to make his application for protection the basis of being a stateless Feyli Kurd as the Australian authorities were not aware of the situation faced by Ahwazi Arabs.
·     In immigration detention, the applicant was warned by other applicants that he would not be released if he disclosed that he was an Ahwazi Arab as other Ahwazis had spent years in detention.
·     On account of being young scared and confused, the applicant followed the advice of the people smuggler and other applicants in order to get released from detention and gain asylum.
·     After claiming to be a stateless Feyli Kurd, the applicant feared revising his claims would result in the refusal of his application and him being returned to Iran.
·     Having spent years in Australia, gaining a better understanding of the government and seeking to marry, the applicant wanted to ‘set the record straight.’
·     The applicant comes from a long line of Arab nationalists and taught Arab history and the situation his people faced as a child. His forefathers participated in resistance movements against British and Iranian colonialism.
·     The applicant faced constant discrimination, harassment and oppression by the Iranian authorities because of his ethnicity and political opinion.
·     At school he was discriminated against for speaking Persian with an Arabic accent.
·     In Ahwaz, he was not allowed to study his native Arabic Language or wear his traditional attire, and faced ongoing discrimination in the areas of employment, education and housing.
·     He used to accompany his brother [Mr D], and cousins, [Mr E] and [Mr F], to attend Arab homes to discuss the situation faced by Arabs and recite poetry in support of their emancipation. They would also attend cultural and religious festivals wearing Arab attire and would often be attacked by Iranian authorities which would disperse gatherings and beat Arabs who gather and perform Eid prayers.
·     In 2005, they joined other Arabs to take part in the uprising against Persian occupation of Ahwaz. [Mr E] and [Mr F] were detained for about two months. The applicant and his brother [Mr D] managed to flee to avoid arrest.
·     Following the uprising, the applicant continued to attend Arab protests an events as wellas secret meetings to raise awareness among the Arab population and encourage them to defy the Iranian regime.
·     One night in December 2009, the applicant was walking with friends on their way to an activist meeting when they were stopped by a Basij patrol. The Basij members aggressively questioned the applicant and his friend, and abused them verbally. The applicant started arguing with the Basij and the Basij members began beating the applicant. When the Basij tried to arrest the men, Arabs from the area gathered, forcing the Basij to retreat to their vehicle, enabling the applicant, along with his friends to flee the scene.
·     At the end of January 2010, the applicant received a summons to attend the Revolutionary Court. The applicant’s lawyer was told by the judge to leave the court, after which the judge outlined allegations brought against the applicant by a Persian woman named [name], accusing him of sexual harassment. The judge then started insulting Arabs and asked the applicant to confess to the crime.
·     The applicant denied the accusation, claiming he had never heard of the woman and was subsequently handed over to the Ettala’at, where he was tortured to insist he confess to the crime. As documentary evidence, the applicant submitted a forensic medical report detailing the injuries he sustained.
·     The applicant was taken back to court, forced to sign a document and then transferred to prison, where he spent five days until his uncle, [name deleted] offered the title deeds to his house as security to secure the applicant’s release.
·     The Iranian authorities would fabricate charges against Arabs to give them a criminal record. The applicant feared the charges were fabricated against him due to his activism as an Arab nationalist or due to his fight with the Basij.
·     The applicant was advised by his family and lawyer to depart Iran. The applicant departed Iran on [date] June 2010 as a result of the intolerable denial of his political and human rights, as well as the harassment and intimidation caused for reasons of his Arab ethnicity.
·     In September 2011, [the Persian woman] withdrew her claims against the applicant.
·     Despite the withdrawal of the claims, the Iranian High Court sentenced the applicant in absentia on [date] July 2012 to 99 lashes and three years’ imprisonment for “illegal affairs an act of indecency, storage and drinking of alcoholic drinks.”
·     Since arriving in Australia, the applicant has lived in the community for about six years, during which time he has established links with the Arab Ahwazi community in Australia and attended political and cultural events in Canberra, Melbourne and Sydney. This includes participating in demonstrations [in] 2013 and [2018] .
·     The applicant was a founding member of [a] Ahwazi Arab organisation in Melbourne.
·     The applicant has been a member of [a sports] team, which depicts the Ahwazi Arab flag, of which photos were shared on social media.
·     The Iranian authorities monitor the internet and social media and will be aware of his activities.
·     The applicant fears harm for reasons of his Arab ethnicity, his political activism, his altercation with the Basij and his conviction and corresponding sentence by the Iranian court.
The applicant attended a Departmental interview on 19 June 2018 for this visa applciaiton and made the following additional claims for protection:
·     The applicant no longer believes in a god.
·     The founder of the applicant’s Arab tribe was Jewish, which will result in members of his tribe facing persecution.
·     The applicant was originally charged with kidnap and rape.
In the applicants post interview submission on 31 July 2018, the applicant made the following additional claims for protection:
·     The Iranian authorities’ refusal to issue travel documents to allow the involuntary return of its citizens from abroad indicates a preference of the regime for opponents of the regime to remain abroad in exile.
·     The persecution against the applicant is not predicated on his profile as an Arab activist, but due to his membership of the Beni Torfi clan and Arab ethnicity.
·     The Iranian authorities did not wish to arrest the applicant for his political activities in order to avoid creating more problems with the local population.
·     The applicant will face serious harm as a failed asylum seeker, should he return to Iran.
·     The applicant submitted country information reflecting discrimination against Ahwazi Arabs and persecution of Ahwazi Arab activists.
The applicant claimed to have travelled with his [family members].
A delegate acting on behalf of the Minister refused to grant the applicant a protection on 30 August 2018.
A valid application for review was lodged with the Tribunal on 20 September 2018, along with a copy of the delegate’s decision record.
Submissions to the Tribunal
On 11 September 2022, the applicant submitted the following documents to the Tribunal:
·     A receipt dated 13 February 2019, for the release of a confiscated property;
·     A receipt dated 2 February 2010 for payment of medical tests;
·     Statement of [Mr B], Chairman of [an organisation];
·     Letter of support from [name], president of [an organisation];
·     Statutory Declaration of [Mr A], cousin of [the applicant];
·     Video links;
·     [The applicant]’ photos leading protests in Australia;
·     Photos of [the applicant] participating in protests and published on [social media];
·     Articles published on website and in newspapers;
·     Translation of article 583 of Iran’s Islamic Penal Code; and
·     Signed declaration of [the applicant].
The Tribunal also received a legal submission prepared by the applcaint’s representative.
As mentioned above, a scheduled hearing was conducted on 19 September 2022. No post hearing submission was required at the end of the hearing.

There are no non-disclosure certificates attached to the applicant’s Departmental and Tribunal files.
Country information: Islamic Republic of Iran
The most recent DFAT country information report on Iran was published on 14 April 2020. Below is an extract of the current situation for Arabs in Iran:
Arabs
Between 1.5 million and 3 million Arabs live in Iran, predominantly in the south-western province of Khuzestan bordering Iraq (Bushehr and Hormozgan provinces also have large Arab communities). Iranian Arabs are often referred to as ‘Ahvazis’, after the capital city of Khuzestan Province (Ahvaz). Iranian Arabs speak Arabic. Most (approximately 70 per cent) practise Shi’a Islam. Some have converted to Sunni Islam, but DFAT understands such conversions are not widespread. Arab cultural activities are tolerated, and Arabs can freely wear traditional Arabic dress. They also freely speak the Arabic language. DFAT heard anecdotally that Arabs in Khuzestan Province are afforded considerable space to express their ethnic identity.
Like other ethnic minorities, Arabs complain of economic neglect and discrimination in education, employment, housing, politics and culture. As Muslims, Arabs can contest parliamentary elections but are politically under-represented. Only one Arab has ever served in an Iranian Cabinet (Rear Admiral Ali Shamkhani served as Defence Minister from 1997-2005. Shamkhani currently heads the Supreme National Security Council, a consequential position). While they hold most of Iran’s oil and gas reserves and have significant shipbuilding, manufacturing and petrochemical industries, the south-western provinces are under-developed economically (largely due to a lack of post-war reconstruction) and suffer from widespread unemployment and poverty. In April 2019, Khuzestan Province, at 16.9 per cent, had the highest unemployment rate in the country, behind only Kurdish-majority areas. Community representatives claim that Iranian Arabs are systematically excluded from employment in the shipbuilding, manufacturing and petrochemical industries and from opportunities to work in local government. Environmental degradation in the south-western provinces is significant, with residents suffering from high levels of air and water pollution and water shortages. According to media reports, some Arabs have been evicted from their homes as a result of industrial and infrastructure development projects.
Protests in Khuzestan Province are common. Most recently, violent protests, including some deaths, followed the government’s announcement in November 2019 to reduce petrol subsidies, with at least
ASSESSMENT OF CLIAMS AND FINDINGS
Country of reference
Between the applicant’s maritime arrival and 2018, the applicant has maintained that he was stateless and that his country of usual residence was the Islamic Republic of Iran. He presented to Australian authorities as [Name 1] or [Alias]. However, the applicant has subsequently provided a copy of an Iranian passport and abandoned his admittedly contrived claims about lacking any citizenship and the submitted identity and name had been fabricated.
On the basis of the copy of the applicant’s Iran passport and on the applicant’s more recent claims to be citizen of Iran, the Tribunal is also satisfied that the applicant’s identity is [the applicant’s name] and that he is a citizen of the Islamic Republic of Iran. The Tribunal finds that Iran ia is his receiving country for the purpose of assessing his claims to be assessed under sections 36(2)(a) and 36(2)(aa).
There is no evidence before it to suggest that the applicant has the right to enter and reside in any other country for the purposes of s 36(3).
Credibility findings
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.
In the present de novo review, the Tribunal has considered the applicant’s claims afresh and makes the following findings of fact, upon which it assesses the risk he faces of future harm.
Contrived claims relating to statelessness and ethnicity as Feyli Kurdish
Given the applicant has abandoned his first set of claims in 2018, it is accepted that the applicant is not a Feyli Kurd and that he does not speak a Feyli dialect of Kurdish or any other Kurdish language or that any of his family members belong to any Kurdish ethnicity residing in either Iran or Iraq or that he or any of his family members were ever stateless or were denied any services, faced severe economic hardship or were denied livelihoods because of a lack of nationality as stateless Feyli Kurds.
It follows the applcaint’s contrived claims for protection that the applicant does not have a well-founded fear of persecution on the basis of any claimed ethnicity as a FEyli Kurd or a Kurd living in Iran or on the basis of statelessness or any other related reasons mentioned under paragraph 5J(1)(a) of the Migration Act, should the applicant return to Iran or be required to resettle in Iraq.
Based on the same reasoning, the Tribunal does not have any substantial reasons for believing the applicant, as a necessary and foreseeable consequence of being removed from Australia to either Iraq or Iran,
In this regard, the applicant does not meet the criteria of sections 36(2)(a) and 36(2)(aa).
Claims arising from a criminal conviction in absentia
Having abandoned his claims about a lack of nationality and this ethnicity as a Feyli Kurd, the applicant presented a new set of claims to the Department in a statement of claims and at a Departmental interview in 2018. The new set of claims is convoluted.
The applicant claimed to be an Arabic speaking Iranian citizen The applicant claimed to be a non-observant Shia Muslim. He also claimed to belong to a large extended Ahwazi Arab family of modest means, with a number of relatives in Australia. He can speak, read and write in the Persian language. These personal attributes are accepted as credible.
In summary, the applicant went on to claim that in December 2009, the local Basij, Iran’s volunteer parastatal organisation with powers to enforce moral codes and security laws, clashed with the applicant and fellow Arab friends, leading to his arrest and subsequent beating. Soon after this in January 2010, the applicant was summons to an Iran court to account for a breach of moral laws brought forward by a Persian woman. At an interview with the Department he claimed he was specifically accused of abduction and rape. At the court, the applicant denied the allegations, which led to the court handing the appclaint to members of Ettala’at who physically ill-treated him further to confess the crime. It is further claimed the applicant returned to court where he was forced to sign document and then transferred to custody for five days until the title deed to his uncle’s property was offered as surety and bail as granted. The applicant claimed the charges against him included drinking alcohol and sexual or close relations with an unmarried woman, but they were ostensibly fabricated due to his Arab nationalist activities and his clash with the Basij. As the applciant feared the situation would deteriorate for him, he departed the country on his Iranian issued passport (not falsely obtained) in June 2010
The applicant then claimed that the alleged victim of the applciant’s sexual advances were withdrawn. However, a court convicted the applcaint relating to charges relating to illicit alcohol storage and consumption as well as one vague charge relating an act of indecency and that his sentence will include corporal punishment by lashings and imprisonment for three years. It is because of these convictions the appclaint claimed he could not return to Iran without a real chance of serious harm based on his ethnicity and his political opinions.
The Tribunal has a number of adverse credibility concerns about this set of claims.
Although the applicant was released on bail, the applicant claimed he was able to depart Iran at Tehran’s international airport on his own passport because his name was not blacklisted or attached to an exit ban – a normal practice in most countries for those subjected to bail conditions. The Tribunal does not accept he was not stopped because bail conditions should not be confused with an outstanding warrant to which the applicant has not claimed to be subjected. It is noted the representative cited 2008 country information that Iran only checks passports rather than a full bundle of background documentation.
The Tribunal does not accept this country information was accurate or applicable even at the time of the applciant’s departure in 2010 and it implies a lack of sophistication on the part of Islamic Republic at the time of departure which stretches credulity. The 2013 DFAT country information report on Iran states that it is possible to leave Iran to flees arrests warrants or charges but this usually accomplished overland rather than the main airports and that outstanding warrants for arrest would not go undetected at the main airports. Given the applicant departed via Iman Khomeini International Airport and not over a land border, the country information is not supportive of the applcaint’s exit of Iran claims.
The Tribunal also notes that the April 2020 DFAT report noted that security procedures at Iman Khomeini International Airport in Tehran are robust with computerised cross-checking and multiple layers of physical security and documental checking. Iran’s immigration officials, it further states, are considered highly competent. The UK guidance note on illegal exiting from Iran issued in May 2022 (and updated in September 2022) strongly indicates that travel bans and restrictions for persons affected by court-listed matters, as well persons subject to national security and political interest to the authorities:
2.4.2 Travel bans may be imposed in some circumstances, for example in civil or criminal cases at the behest of the relevant judicial authorities. Reasons for a travel ban can include debt, national security and political grounds, when a defendant is under investigation or trial, or against persons sentenced for a criminal act in absentia. In practice the security forces can prevent anyone from leaving the country even without an official court decision. Numerous journalists, academics, opposition politicians, human rights activists and artists remain subject to foreign travel bans and have had their passports confiscated. Individuals subject to travel bans are registered on a court-issued list of people who cannot leave the country, which appears in the computer system used by airport personnel. Intelligence services are reported to maintain their own list of those prevented from leaving the country, separate to those issued by the judiciary (see Travel bans and restrictions).
2.4.3 Married women require their husband’s permission to obtain a passport and travel abroad, whereas unmarried and divorced women do not, although fathers of unmarried women can request travel bans (see Status for women).
2.4.4 Border security, especially at airports, is strict, with multiple layers of physical security and document checking (see Border security). The ability to bribe officials or use fraudulent documents to leave the country is reported to be difficult (see Bribery of border officials and Use of fraudulent documents to facilitate exit).
The applciant’s claims that he was not a person of interest for criminal matters that were ostensibly because he was suspected Ahwazi secessionist and activist because he would not be subject to an exit ban at the time of his departure runs counter to the known facts.
Furthermore, the oral evidence about whether the uncle of the applcaint had been repaid forfeiting the equivalent of [amount] Australian dollars’ worth of land was inconsistent. On the one hand, the applicant claimed that bail conditions included a deed to his uncle’s land as surety. As it was forfeited as the applicant was charged in absentia, the Tribunal enquired whether the applcaint repaid his uncle, to which he responded he did.
The Tribunal noted the oral evidence provided one of the witnesses claiming to a cousin of the applicant, [Mr A]. The witness made a solemn undertaking on the holy book of Islam, the Quran. The witness provided a written statement and oral evidence that his father (the applicant’s uncle) provided substantial surety for the applcaint’s bail. The Tribunal asked if he was aware the applicant had repaid the money. He claimed that one of the applicant’s close relatives paid and then later said he did not know, adding ‘we help one another out as we have to survive’. The witness said that the applicant provided incorrect information in his application for protection because of stress, fear and immaturity. The witness also defended the applicant in providing contrived claims for protection after his arrival to Australia. He argued the applicant was misinformed by people smugglers and others at the time of application that Ahwazis were sent back to Iran.
The Tribunal is aware that the witness provided evidence claiming to an apostate from Islam to the Christian denomination known as the Jehovah’s Witnesses. In a decision by the Tribunal, he was granted that visa on the grounds he faced a well-founded fear of persecution as an apostate from the Islamic religion. That he provided evidence as a Muslim to the Tribunal in this instance has reasonably invited the Tribunal not to place any credible weight on the oral evidence provided by his witness. As the Tribunal is setting aside this matter, it is not required to put this adverse information to the applicant that the witness was not a reliable or credible person. The Tribunal accordingly finds that the [Mr A] is an unreliable witness in this matter given his history of fabricating claims and providing incorrect information to the Department and the Tribunal and it further undermined the applcaint’s specific and implausible claims about being a person of interest arising from charges and convictions against him as lacking overall credibility.
In the context of the applicant’s providing incorrect information that he had been a stateless Feyli Kurd and presented an unreliable witness and given the claims about his exit from Iran run counter to the available country information, the Tribunal finds the claims that the applicant had been arrested, charged, bailed for moral charges involving alcohol and relations out of wedlock to be contrived. Furthermore, the Tribunal does not accept any of the supporting documentation, including court documents and medical evidence, submitted the Department to be genuine. Given the applicant has presented a further set of contrived claims with fabricated documentary evidence, it does not accept the applicant departed Iran for the reasons claimed, or that he was convicted in absentia, or that any member of his family forfeited surety as claimed, or that he remains a person of interest based on this contrived set of claims.
Accordingly, the appclaint does not have a real chance of serious harm based on one of the reasons mentioned under s 5J(1)(a) arising from his claims to have been ostensibly arrested, interrogated, charged and released on bail for political purposes by the members of the Iran authorities and arising from any in absentia convictions or punishments which would lead to a real chance of serious harm when the applcaint is arrested and detained, if he is to return to Iran.
Based on the same adverse credibility findings, the Tribunal does not have any substantial reasons to believe that the applciant, as a necessary and consequence of being removed from Australia to Iran, will suffer the real risk of significant based on this set of claims.
A well-founded fear of persecution based on race and political opinion
The Tribunal does not have to accept the applicant’s evidence about false accusations of consuming alcohol and sexual assault leading to an in absentia conviction and punishment to have been credible or reliable.
It, nonetheless, remains salient that the applicant is an Iranian citizen who speaks Arabic and it is accepted the applicant belongs to the Ahwazi or Khuzestani Arab minority of Iran.
The Tribunal accepts that Khuzestan province has historically been a neglected region despite being the historical exploitation of oil and natural gas deposits in province which has underpinned Iran’s wealth for decades.
Throughout centuries of conflict between Iran and the Ottoman Empire, the Khuzestan region managed to maintain a degree of relative independence, being ruled by a series of local tribal leaders. The last of these was toppled by the Iranian authorities in 1925 and the area came under the direct control of Tehran. While the Ahwazi Arabs are more ethnically related to Arab Iraqis, during the Iran-Iraq War (1980-1988), they rejected calls by Saddam Hussein for siding with Iraq and resisted invasion. This was principally as the Ahwazi Arabs were Shi’a Muslims and because Hussein was a Sunni Muslim who was oppressing Shi’a Arabs in Basra, Nasiriya and Najaf and other parts of Iraq. Under Khatami’s more liberal leadership of the Islamic Republic of Iran, the authorities tolerated a display of Arab identity politics among Khuzestanis through the Islamic Reconciliation Party. However, by 2005, President Mahmoud Ahmadinejad, Arab politics in Iran was curtailed and ceased to exist as a local political force in Khuzestan province.
The applicant has claimed that in 2005, he participated in an anti-government protest. In 2005-2006 was a year of unrest in Khuzestan and notable four explosions occurred in Ahvaz.[1] While the applcaint did not claim to have been personally harmed, he claimed a number of fellow Ahwazis were arrested and detained. There is no evidence, including social media or photographic evidence to substantiate these claims. However, the Tribunal has provided the applicant with the benefit of the doubt and accepts that he had previously participated any protests in Iran before his departure.
[1] Iran: Bombing may be connected with minorities, election, by Bill Samii, Radio Free Europe online, 13 June 2005,
It further accepts that he owned and ran [a] shop in Ahwaz, and in that context the Tribunal accepts that he came to the attention of, and clashed with, the Basij, who targeted him and his customers for harassment on the basis of his Arab ethnicity and imputed political opinion and religious affiliation. However, as outlined above, it does not accept this precipitated him being a person of interest to the authorities for any criminal or national security matter.

When the applicant departed Iran for Australia, he did so with a number of relatives, including cousins. This would further indicate that his departure from Iran was more closely aligned to his ethnicity and the economic and political situation in Khuzestan province and Iran more generally, and not something specific arising from particularised and bogus crimes.
More relevantly, the Tribunal accepts the applicant has been undertaken sur place activities since arriving in Australia and that the applicant has photographic record of himself on social media sites and videographic evidence available on [social media], to support it. The Tribunal notes these activities date back to 2013 – prior to his admission that he made a new set of claims about his ethnicity as Ahwazi Arab and not Feyli Kurd in 2018, indicating his pro-secessionist and anti-government opinion reflects his genuine and actual outlook based on his accepted ethnicity, and that he did not undertake sur place activities solely and cynically for migration purposes.
The applicant also presented a second witness to the Tribunal who is the chair of [an] [organisation]. It has organised community events and [demonstrations]. The Tribunal found the witness to a credible person. The Tribunal notes that this organisation is primarily a cultural and ethnic association. It also accepts the testimony that the applcaint joined the local Ahwazi [sports] team and is active in that community sports organisation for which there is photographic evidence to support his participation.
Of particular interest to the Tribunal are the photographs of the applciant attending [protests] [have] been published on [a website], a news outlet [and] the videographic evidence of the applicant at the same protest on [a] broadcast network, on [date]. There is footage of the applciant on [TV], indicating the applciant was broadcast attending a protest held in Melbourne in April 2021.
The country information in the most recent DFAT report indicates that, unless failed asylum seekers are subject of adverse official attention prior to departing Iran (e.g., for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.
However, the Tribunal has considered the applcaint’s sur place political activities against the background of secessionist Ahwazi organisations that are proscribed in Iran as terrorist organisations. This includes the Arab Struggle Movement for the Liberation of Ahwaz (ASMLA). ASMLA is explicitly in favour of the waging violence against Iran and claimed responsibility for a number of assassinations and attached on infrastructure. A splinter faction of ALMLA also claimed responsibility for the 2005-06 Ahvaz bombings, mentioned above, and the Ahvaz military parade attack in 2018 which killed 25 Revolutionary Guards and civilian bystanders. Iran has accused Saudi Arabia of supporting the group, which the Saudis have rejected.[2] Another organisation is the Ahvaz National Resistance movement which seeks an independent state for Khuzestan province and is often described as an umbrella organisation and also claimed responsibility for the 2018 military parade attack.[3]
[2] Rasmussen, Sune Engel, "Dissidents Call for United Front Against Iran After Assassination Attempts", The Wall Street Journal, 25 November 2018
[3] Ahvaz National Resistance, Wikepedia, >
Given the applciant’s conspicuous anti-regime protesting has been broadcast in Saudi Arabia, Iran’s rival for regional supremacy, and internationally in general, the Tribunal cannot rule out that the authorities in Iran, which are so sensitive towards Ahwazi dissent and dissent in other border provinces, the applicant has not already been subject to monitoring and that he will not be imputed with membership of proscribed organisation or that he is supportive of Saudi efforts to internally destabilising the Islamic Republic which, in turn, imbue the applcaint with a higher than typical profile among forced returnees.
Country information, and specifically, the latest DFAT Country Report on Iran, indicates there is a substantial population of Arabs, particularly in the applicant’s home province of Khuzestan, and acknowledges that Arabs have long complained of economic neglect and discrimination against them in education, housing, politics and culture. The applicant’s claims regarding his school and work experience is supported by this information. While it is DFAT’s assessment that Arabs are not specifically targeted for discrimination on the basis of their ethnicity, the April 2020 DFAT country report makes reference to protests in Khuzestan being common and more recently, of a violent nature, that have resulted in arrests of large numbers of Arabs in Ahwaz, and states that as a result of recent events the Arab population in Khuzestan province has been a sensitive topic for the government, and politically active Arabs in particular are likely to attract adverse attention from the authorities and face official harassment, monitoring, imprisonment and mistreatment. A substantial number of other sources of independent information considered by the Tribunal also refer to the systematic discrimination and oppression against Ahwazi Arabs, among other minorities, including, for example, a US Department of State report which refers to disproportionate targeting of minority groups including Ahwazi Arabs for arbitrary arrests, prolonged detention, disappearances and physical abuse.[4]
[4] 'Country Reports on Human Rights Practices for 2019 - Iran', United States Department of State, 11 March 2020
More recent information about protests in November 2019, that were initially about economic grievances but quickly took on a political element, indicate people from ethnic minorities were among those targeted for arbitrary arrest and detention and against whom excessive force was used.[5] Khuzestan was one of the provinces that experienced the highest number of deaths.[6] People detained in connection to the protests were subject to torture, enforced disappearance and other forms of ill-treatment.[7] There were reported cases of detainees being held in conditions amounting to enforced disappearance and in incommunicado detention, and reports several detainees have died in custody after being tortured by the authorities. [8] In the current context of the Covid-19 pandemic, Ahwaz Arab activists and political prisoners were recently excluded from an amnesty policy announced by the government, leaving them exposed to a potential health emergency in already dire prison conditions.[9]
[5] 'Thousands arbitrarily detained and at risk of torture in chilling post-protest crackdown', Amnesty International, 16 December 2019,; ‘Iran: World must strongly condemn use of lethal force against protesters as death toll rises to 143', Amnesty International, 25 November 2019
[6] Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, pp.3-4; ‘Iran: No Justice for Bloody Crackdown', Human Rights Watch, 25 February 2020,
[7] ‘Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, p.2, 20200228105335; 'Thousands arbitrarily detained and at risk of torture in chilling post-protest crackdown', Amnesty International, 16 December 2019
[8] 'Thousands arbitrarily detained and at risk of torture in chilling post-protest crackdown', Amnesty International, 16 December 2019; ‘Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, p.2, 20200228105335; 2019 Iran Human Rights Annual Report’, Iran Human Rights Monitor, p.5, 6 January 2020
[9] 'No country for minorities: the inequality of state repression in Iran', Open Democracy, 02 June 2020, 20200602095134
The 2021 reportage about Khuzestan indicates that the overall security situation in that province continues to deteriorate due to protests about water scarcity and hikes in bread prices. In May 2021, it has been reported that security forces used live ammunition to disperse protesting in Susangerd, In Izeh, protesters reported stormed a flour depot sparked by sharp increases in bread prices.[10] Protests erupted on 15 July to protest the water shortages and crisis, but quickly were met with police violence and brutality. The protests were dubbed the Uprising of the Thirsty.[11] By 14 July, over 100 protesters were reported to have been detained. In Ahvaz, protesters blocked a roadside and a highway to protest water scarcity. Flames rose in Susangerd and Lorestan during protests.[12] They were chanting "Death to the Dictator" in support of the protesters back in Khuzestan. Meanwhile, in Ahvaz, Shadegan and Mahshahr, more major protests occurred, as well as protests in Lorestan and Aligudarz.[13]
[10] Iran: Protests and associated clashes since May 6 reported in Khuzestan Province, Crisis24, 7 May 2022, "Protests in Southwest Iran Due To Water Crisis". NCR Iran. 16 July 2021. Archived from the original on 16 July 2021. Protests in Southwest Iran Due To Water Crisis - NCRI (ncr-iran.org)
[12] "Iran News in Brief – July 25, 2021". NCR Iran. 25 July 2021., "As Protests Continue In Iran's Khuzestan, Unrest Can Spread Elsewhere". Iran International. July 25, 2021. Archived from the original on September 24, 2021. Retrieved May 24, 2022.
As the Tribunal writes this decision in 2022, a series of demonstrations across Iran, including Khuzestan, also began on 16 September 2022 following the death of Mahsa Amini, who died after being in police custody and having been beaten by the Guidance Patrol following a violation related to an "improper hijab".
Having regard to the abovementioned country information regarding circumstances and treatment of Ahwazi Arabs in Iran, and the current climate of the increasingly repressive approach of the Iranian government towards dissent, the Tribunal cannot be confident the applicant, with his cumulative profile, will not face serious harm for reasons of his ethnicity, and imputed political opinion which has been heightened by his broadcast sur place activities in Australia, should the applcaint return to Iran in the reasonably foreseeable future.
The Tribunal accepts the applicant will not willingly return to Iran, and as he has no current Iranian passport, he would have to obtain a laissez -passer from the Iranian diplomatic mission here. On this basis the Tribunal finds he would be questioned by the Iran’s security authorities upon return.[14] Given the applicant’s sur place activities which appeared on [television] in the past, it cannot be confident this information would not be discovered or that Iranian officials in Australia have flagged the applciant as holding pro-Ahwazi secessionist and/or pro-Saudi anti-government political opinion prior to his departure. Although the applciant is not a significant community leader in Australia’s Ahwazi community, the Tribunal finds it is foreseeable that the applicant will be accused, detained, interrogated and held in custody for a considerable time subjecting the applicant to cruel and inhuman treatment, including significant physical ill-treatment and loss of liberty.
[14] DFAT Country Information Report on Iran 14 April 2020, para 5.27, p 70
According to DFAT, 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).
The Tribunal accepts there is a real chance, in the sense of one that is not remote or far fetched, he would face arrest and significant physical ill-treatment at the hands of the Iranian authorities on arrival. The Tribunal accepts that it cannot require or expect the applicant take reasonable steps , such as modifying his political expression, to avoid persecutory harm pursuant to 5J(3).
Given his Arab ethnicity, his place of birth, his genuine political opinion of the regime reflected also in his media profile whereby he has a real chance of being questioned and detained, and the current repressive and arbitrary approach of the authorities to dissent generally and towards Ahwazi Arab dissenters in particular, the Tribunal finds there is a real chance he will face serious harm in the form of arrest, detention and significant ill-treatment at the hands of authorities upon return.
Therefore, the Tribunal is satisfied, having considered the applicant’s claims individually and cumulatively, there is a real chance, on the basis of his cumulative profile, that he will face serious harm on return to Iran for one or more of the reasons mentioned in paragraph 5J(1)(a), being his ethnicity and anti-government political opinion, both imputed and actual. It is satisfied that those reasons are the essential and significant reasons for the harm feared, the harm amounts to serious harm and involves systematic and discriminatory conduct as required by s 5J(4)(c).
The Tribunal finds the agent of persecution in respect of the applicant is the Iranian state and its authorities, and is satisfied the applicant is therefore unable to avail the protection of the state and there is no part of the country that he will not face the feared persecution.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration 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.
…

[2022] AATA 4782

12 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction